                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 19, 2015                    106254
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

TRACI L. BRISKIN,
                    Appellant.
________________________________


Calendar Date:   January 6, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                              __________


     Paul J. Connolly, Delmar, for appellant.

      G. Scott Walling, Special Prosecutor, Schenectady, for
respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered December 2, 2013, upon a verdict
convicting defendant of the crime of manslaughter in the second
degree and the traffic infraction of driving while ability
impaired.

      Defendant was charged in a five-count indictment with
manslaughter in the second degree, vehicular manslaughter in the
second degree (two counts) and driving while intoxicated (two
counts). The charges stemmed from a collision that occurred
between two motor vehicles – one operated by defendant and one
operated by the victim – at approximately 7:30 p.m. on November
30, 2012 at the intersection of Jockey Street and State Route 67
in the Town of Charlton, Saratoga County. Although defendant
                               -2-                106254

provided more than one version of the events leading up to the
collision, she testified at trial that, at approximately 6:15
p.m. on the evening in question, she poured herself a "regular"
glass of wine – defined by defendant as containing four to six
ounces of wine – and began making herself some macaroni and
cheese. When defendant sat down to eat, she poured herself a
second glass of wine, which she finished at approximately 7:00
p.m.1 Within 10 minutes of finishing her second glass of wine,
defendant got into her white sport utility vehicle (hereinafter
SUV) – intending to drive to a friend's house. According to
defendant, her purse was on the front passenger seat, her global
positioning system (hereinafter GPS) was plugged into the SUV's
cigarette lighter and was resting in one of the vehicle's cup
holders and a quantity of beer was lodged under the front
passenger seat.

      At some point after defendant turned onto Jockey Street,
which ran in a generally north/south direction, defendant
extinguished the cigarette she was smoking and reached into her
purse to retrieve a bottle of body spray. In so doing, defendant
knocked the GPS unit out of the cup holder and onto the floor at
her feet. Although the GPS unit remained on and continued to
give audible directions, defendant deemed it advisable to try and
retrieve the unit, which she initially attempted to do by pulling
on the attached cord. When the cord became dislodged, defendant
tried to maneuver the unit with her feet to the point where she
would be able to reach down with her hand and pick it up. By her
own admission, this process entailed defendant looking down at
the floor of her vehicle which, in turn, resulted in only
"[s]poradically" keeping her eyes on the road ahead of her.
While searching for the errant GPS unit, defendant missed a
traffic sign warning of an impending stop sign,2 failed – despite


     1
        Defendant told members of the Saratoga County Sheriff's
Department on the night of the collision that she consumed two
glasses of wine at a restaurant in the Town of Clifton Park,
Saratoga County and had not eaten all day.
     2
        The accident reconstructionist appearing on behalf of the
People testified that this warning sign was located "several
                               -3-                106254

an unobstructed view of traffic on State Route 67, which ran in a
generally east/west direction – to see the victim's vehicle
approaching the intersection, passed through the stop sign facing
her (and controlling the intersection) and struck the driver's
side of the victim's vehicle.3 According to various members of
the Saratoga County Sheriff's Department, defendant – who was
observed to have "glassy" eyes, a bit of "trouble" in
walking/negotiating the steps into the ambulance and a detectable
odor of alcohol on her breath – failed the field sobriety tests
administered at the scene, and her blood alcohol content as of
9:28 p.m. measured .11%.4

      The accident was witnessed by two motorists – Glen
Tevendale Jr. and Denise Feulner. Tevendale testified that
shortly after turning north onto Jockey Street on the evening in
question, he observed a white SUV – later determined to be
operated by defendant – approximately 100 feet in front of him.
As he continued along Jockey Street, Tevendale saw defendant's
SUV cross over the double yellow line dividing the northbound and
southbound lanes; defendant's vehicle then swerved to the right –


hundred feet" in advance of the intersection.
     3
        When emergency personnel responded to the scene,
defendant attempted to blame the victim for the accident,
stating, "That son of a bitch hit me." The accident
reconstructionist testified that defendant's initial account,
wherein she purportedly stopped at the intersection but – due to
the victim's excessive speed – was unable to clear the
intersection before his vehicle struck her SUV, was "physically
impossible," and defendant acknowledged at trial that it was her
SUV that struck the sedan operated by the victim.

     4
        At trial, the People's and defendant's respective experts
offered competing views of defendant's blood alcohol content at
the time of the crash; defendant's expert estimated defendant's
blood alcohol content to be between .04% and .06% at 7:30 p.m.,
and the People's expert estimated defendant's blood alcohol
content to be .14% at that point in time.
                              -4-                106254

crossing over the white fog line on the eastern shoulder of the
road – before swerving back to the left and again crossing over
the double yellow line.5 At this point, Tevendale saw the brake
lights flash, and the SUV thereafter returned to its lane of
travel. Tevendale continued behind defendant's SUV as the
vehicles crested and started to descend a small hill, at which
point Tevendale could see the headlights of two vehicles – one
(it would be determined) operated by the victim and the other
operated by Feulner – traveling west on State Route 67 as they
approached the intersection with Jockey Street.6 As Tevendale
continued north on Jockey Street, he saw defendant's SUV first
pass the warning sign advising motorists of the stop sign ahead
and then pass the stop sign itself – entering the intersection
and broadsiding the victim's sedan. Tevendale testified that he
never saw defendant hit her brakes before passing through the
intersection.

      Feulner testified that she was approximately 10 car lengths
behind what would prove to be the victim's vehicle – proceeding
westbound on State Route 67 – when she observed two sets of
headlights on Jockey Street approaching the intersection with
State Route 67. As she watched these vehicles, it appeared to
Feulner that the first vehicle – defendant's SUV – was "traveling
too quickly" and was not "slowing down at all or going to stop
for the stop sign" at the intersection. In fact, Feulner was so


    5
        According to Tevendale, defendant's SUV began swerving
approximately 1½ miles before the stop sign at the intersection
of Jockey Street and State Route 67, and he saw it swerve three
times in the course of 60 to 90 seconds. On each occasion,
approximately one half of the vehicle's width crossed the
relevant road markings.
    6
        Tevendale testified that there were "plowed down" farm
fields on either side of Jockey Street; hence, there were not any
crops to obstruct a motorist's view of westbound traffic on State
Route 67. Feulner offered similar testimony, stating that the
surrounding land was "pretty flat" in the vicinity of the
intersection and that there was nothing to obstruct her view of
the vehicles proceeding northbound on Jockey Street.
                               -5-                106254

concerned that she pulled her vehicle to the side of the road and
stopped. As she did so, defendant's SUV "came right through the
intersection" and struck the victim's vehicle. Feulner testified
that defendant's vehicle neither slowed nor stopped as it
approached the intersection. By all accounts, although it was
very cold with slight snow flurries on the night of the
collision, the roads were clear, dry and free of ice.

      The victim ultimately died from the traumatic injuries
sustained in the crash. Following a jury trial, defendant was
convicted of manslaughter in the second degree, acquitted of
vehicular manslaughter (two counts) and driving while intoxicated
(two counts) and convicted of the lesser included offense of
driving while ability impaired. Defendant thereafter was
sentenced to, among other things, a prison term of 2½ to 7½ years
with respect to the manslaughter conviction. Defendant's
subsequent motion to set aside the manslaughter conviction was
denied, and this appeal ensued.7

      Defendant initially contends that County Court erred in
denying – without a hearing – her motion to suppress the results
of her breath test. We disagree. "A motion seeking suppression
of evidence 'must state the ground or grounds of the motion and
must contain sworn allegations of fact . . . supporting such
grounds'" (People v Desmond, 118 AD3d 1131, 1133 [2014], lv
denied 24 NY3d 1002 [2014], quoting CPL 710.60 [1]). A hearing
in this regard is neither "automatic [n]or generally available
[simply] for the asking" (People v Desmond, 118 AD3d at 1133
[internal quotation marks and citations omitted]) and, except in
circumstances not present here (see CPL 710.60 [3] [b]; 710.20
[3], [6]), the trial court "may summarily deny the motion if the
papers do not allege a legal basis for suppression or if the
factual allegations do not as a matter of law support any alleged
ground" (People v Vanness, 106 AD3d 1265, 1266 [2013], lv denied
22 NY3d 1044 [2013]; see CPL 710.60 [3] [a], [b]). Here, in
support of her suppression motion, defendant tendered the


     7
        This Court granted defendant's motion to stay execution
of the judgment of conviction pending appeal and set bail at
$75,000 (see CPL 460.50 [1]).
                              -6-                106254

affidavit of her attorney, who merely asserted – upon information
and belief – that the deputies in question lacked probable cause
to arrest defendant. This "bare allegation of a lack of probable
cause, without any factual support, was insufficient to require a
hearing" (People v Vanness, 106 AD3d at 1266; see People v
Armstrong, 94 AD3d 1552, 1553 [2012], lv denied 19 NY3d 957
[2012]).

      Nor are we persuaded that County Court erred in granting
the People's challenge for cause as to prospective juror No. 9.
Pursuant to CPL 270.20 (1) (b), a party may challenge a
prospective juror for cause if such juror "has a state of mind
that is likely to preclude him [or her] from rendering an
impartial verdict based upon the evidence adduced at the trial"
(accord People v Harris 19 NY3d 679, 685 [2012]; People v Arnold,
96 NY2d 358, 362 [2001]). "When a [prospective] juror's
impartiality is in doubt, it is the court's obligation to make
further inquiries and to excuse the juror if the doubt is not
fully dispelled" (People v Russell, 116 AD3d 1090, 1093 [2014];
see People v Harris, 19 NY3d at 685; People v Young, 119 AD3d
970, 971 [2014]). Notably, "[i]f there is any doubt about a
prospective juror's impartiality, [the] trial court[] should err
on the side of excusing the juror, since at worst the court will
have replaced one impartial juror with another" (People v Arnold,
96 NY2d at 362 [internal quotation marks and citation omitted];
see People v Russell, 116 AD3d at 1093; People v Izzo, 104 AD3d
964, 966 [2013], lv denied 21 NY3d 1005 [2013]; People v McGuire,
101 AD3d 1386, 1389 [2012]).

      During the course of voir dire, the prosecutor inquired as
to whether any of the prospective jurors would require the People
to prove that defendant had a quantifiable percentage of alcohol
in her blood; specifically, the prosecutor asked if any of the
prospective jurors would "absolutely need a [blood alcohol
content] number in order to be convinced beyond a reasonable
doubt that [defendant was] intoxicated by alcohol." In response,
prospective juror No. 9 raised his hand and said, "yeah," he
would need "[s]omething more" than the relevant deputy's
"investigation" in order to find defendant guilty of driving
while intoxicated. Additional colloquy between this juror and
the prosecutor ensued, during the course of which the discussion
                              -7-                106254

turned to the topic of field sobriety tests. Although the juror
acknowledged that testimony regarding the deputy's "specialized
training" and/or any admissions made by defendant would "help" in
resolving the intoxication issue, he also unequivocally stated
that he was adhering to his "original answer," i.e., he would be
unwilling to convict defendant of driving while intoxicated based
"solely on the field sobriety tests." The prosecutor thereafter
challenged this juror for cause, noting that the juror "basically
doesn't believe in field sobriety testing."

      Although defendant argues that County Court abused its
discretion in granting the People's challenge for cause as to
this juror, we disagree. Regardless of whether the juror was
correct as to whether an individual could in fact be convicted of
driving while intoxicated based solely upon proof that he or she
failed certain field sobriety tests, the juror's comments –
viewed "in context and as a whole" (People v Lee, 66 AD3d 1116,
1119 [2009] [internal quotation marks and citation omitted]) –
evidence, at the very least, an opinion regarding the People's
burden of proof and a corresponding reluctance, if not potential
unwillingness, to abide by the court's instructions as to the
proper legal standards. Further, despite this juror's often
uncertain and/or ambiguous responses (see People v Izzo, 104 AD3d
at 965-966; People v McGuire, 101 AD3d at 1388-1389), no
unequivocal assurance of impartiality was sought – much less
obtained – from him. Under these circumstances, County Court
properly exercised its discretion in granting the People's
challenge for cause (cf. People v Otero, 56 AD3d 350, 351 [2008],
lv denied 14 NY3d 804 [2010]; People v Kenner, 8 AD3d 296, 297
[2004]; see generally People v Hinds, 93 AD3d 536, 537 [2012], lv
denied 19 NY2d 974 [2012]).

      Defendant next contends that she lacked the culpable mental
state required for manslaughter in the second degree and,
therefore, the verdict convicting her of that crime is not
supported by legally sufficient evidence and is against the
weight of the evidence. Insofar as is relevant here, "[a] person
is guilty of manslaughter in the second degree when . . . [h]e
[or she] recklessly causes the death of another person" (Penal
Law § 125.15 [1]). For purposes of this statute, a person acts
"recklessly" when, among other things, he or she "is aware of and
                              -8-                106254

consciously disregards a substantial and unjustifiable risk" that
death or injury will occur (Penal Law § 15.05 [3]; see People v
Asaro, 21 NY3d 677, 684 [2013]).8 That risk, in turn, "must be
of such nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a reasonable
person would observe in the situation" (Penal Law § 15.05 [3]),
i.e., the risk must reflect "the kind of seriously blameworthy
carelessness whose seriousness would be apparent to anyone who
shares the community's general sense of right and wrong" (People
v Asaro, 21 NY3d at 685 [internal quotation marks and citations
omitted]). Although the awareness and corresponding disregard of
such a risk indeed is measured from the defendant's perspective,
"objective evidence of the surrounding circumstances may be
weighed in making [that] factual determination" (People v
Licitra, 47 NY2d 554, 559 [1979]).

      As a starting point, the fact that defendant was acquitted
of driving while intoxicated does not preclude a finding that her
conduct on the night in question was reckless, nor does her
acquittal in this regard undermine her conviction of manslaughter
in the second degree (see People v Reichel, 110 AD3d 1356, 1363-
1364 nn 12, 13 [2013], lv denied 22 NY3d 1090 [2014]).
Intoxication is not an element of manslaughter in the second
degree (see Penal Law § 125.5 [1]). Moreover, there was ample
evidence before the jury that defendant was impaired by the
consumption of alcohol on the night in question – indeed, the
jury convicted defendant of driving while ability impaired – and
such impairment, coupled with defendant's admitted conduct in
attempting to retrieve her GPS unit and the overall manner in
which she operated her motor vehicle on the night in question,
established the recklessness necessary to sustain her conviction
of manslaughter in the second degree.




    8
        Although "[a] person who creates such a risk but is
unaware thereof solely by reason of voluntary intoxication also
acts recklessly with respect thereto" (Penal Law § 15.05 [3]), we
are not evaluating defendant's conduct with respect to this
particular aspect of recklessness.
                              -9-                106254

      Defendant, by her own admission, consumed two "regular"
glasses of wine in a roughly 45-minute period and thereafter
failed three field sobriety tests administered at the scene of
the accident.9 Within minutes of finishing her second glass of
wine, defendant operated her vehicle – at night and on an
unfamiliar road – while "fiddling on the floor" of her vehicle in
an attempt to retrieve her GPS unit, even though she could still
hear the directions being conveyed to her. Again, by her own
admission, defendant's attempts to retrieve the GPS unit caused
her to only "[s]poradically" watch where she was going, as a
result of which defendant never saw (1) the warning sign, (2) the
stop sign, (3) the intersection in question, or (4) the victim's
vehicle prior to the collision. Notably, defendant acknowledged
that she was not aware of the stop sign because she was not
looking at the road ahead of her, that she did not have her eyes
on the road as she entered the intersection, that there was a
risk associated with attempting to retrieve her GPS unit while
driving and that she ultimately disregarded that risk. Although
it is unclear whether defendant exceeded the posted speed limit
as she traveled north on Jockey Street,10 the accident
reconstructionist testified that the minimum speed of defendant's
vehicle prior to impact was at least 46 miles per hour and that
there was no evidence that defendant braked prior to impact.
Such proof, combined with the testimony offered by Tevendale and
Feulner as to the manner in which defendant operated her vehicle
in the moments leading up to the accident, is more than
sufficient to establish that defendant acted with the required
degree of recklessness. Accordingly, we are satisfied that the
verdict is supported by legally sufficient evidence and is in
accord with the weight of the evidence.


    9
        Although defendant suggested that she failed the
horizontal gaze nystagmus test due to a muscular disorder in her
eyes, she acknowledged that she "did terrible" on the heel-to-toe
test and "was all over the place" when the deputy asked her to
stand on one leg.
    10
        The posted speed limit was 55 miles per hour. Tevendale
testified that he was traveling between 55 and 58 miles per hour,
and that defendant's vehicle was traveling faster than that.
                              -10-               106254

      As for County Court's charge to the jury, to the extent
that defendant contends that the court erred in failing to define
the term "intoxication" in the context of its charge as to
manslaughter in the second degree,11 this issue is unpreserved
for our review (see People v Green, 119 AD3d 23, 30 [2014], lv
denied 23 NY3d 1062 [2014]). Further, inasmuch as County Court's
charge with respect to manslaughter in the second degree mirrored
that set forth in the pattern jury instructions for that crime
(see CJI2d[NY] Penal Law § 125.15) and, therefore, "correctly
convey[ed] the proper standards for the jury to apply" (People v
Rebollo, 107 AD3d 1059, 1061 [2013] [internal quotation marks and
citation omitted]; accord People v Rolfe, 83 AD3d 1217, 1218-1219
[2011], lv denied 17 NY3d 809 [2011]), we discern no basis upon
which to take corrective action in the interest of justice (see
People v Green, 119 AD3d at 30).

      Defendant also ascribes error to the manner in which County
Court responded to a note from the jury asking if the term
"intoxication" had a particular meaning in the context of the
count charging manslaughter in the second degree. Where a jury
requests clarification or further instruction, "the court must
direct that the jury be returned to the courtroom and, after
notice to both the [P]eople and counsel for the defendant, and in
the presence of the defendant, must give such requested
information or instruction as the court deems proper" (CPL
310.30). "[W]hile [the] trial court is without discretion in
deciding whether to respond, the court does have discretion as to
the substance of the response" (People v Santi, 3 NY3d 234, 248
[2004]) – the only caveat being that the court's response must be
"meaningful" (People v Clark, 108 AD3d 797, 799 [2013] [internal
quotation marks and citation omitted]; see People v Acevedo, 118
AD3d 1103, 1107 [2014]; People v Arce, 70 AD3d 1196, 1197-1198
[2010]; People v Carpenter, 52 AD3d 1050, 1051 [2008], lv denied
11 NY3d 735 [2008], cert denied 556 US 1131 [2009]).

      Here, on the third day of deliberations, the jury tendered
a note (court exhibit No. 9) inquiring, "Is there a definition of


    11
        County Court did define intoxication during its charge
to the jury as to the two counts of driving while intoxicated.
                              -11-               106254

'intoxication' as described in [c]harge [1], definition of
reckless." A lengthy discussion among the prosecutor, defense
counsel, County Court and, ultimately, the jury's foreperson
ensued in an effort to both decipher the precise nature of the
jury's inquiry and formulate an appropriate response thereto.
Upon seeking further clarification from the foreperson, and after
consultation with the prosecutor and defense counsel, County
Court indicated that its proposed response to the jury would be,
"No, reckless is determined by the definition given." Defense
counsel agreed with County Court's proposed answer, stating, "I
believe that should be the only instruction given to the jury.
Intoxication isn't an element of recklessness, and it's defined
pretty clearly." To the extent that defendant can now be heard
to complain, we are satisfied – upon our review of the extended
discussion had in this regard – that County Court provided a
meaningful response to the jury's inquiry.

      As a final matter, we find no merit to defendant's claim
that she was denied the effective assistance of counsel based
upon defense counsel's failure to object to a particular question
posed to defendant by the prosecutor – inquiring as to whether
defendant had "met with" her attorney prior to testifying – and,
further, to request that the jury be charged as to the lesser
included offense of criminally negligent homicide. "To establish
an ineffective assistance of counsel claim, defendant was
required to show that counsel failed to provide meaningful
representation and an absence of strategic or other legitimate
explanations for counsel's allegedly deficient conduct" (People v
Lapi, 105 AD3d 1084, 1086 [2013], lv denied 21 NY3d 1043 [2013]
[internal quotation marks and citations omitted]). As a general
proposition, defense counsel's failure to object to or request
that the jury be charged as to a lesser included offense "is not
the type of clear-cut and completely dispositive error that rises
to the level of ineffective assistance of counsel" (People v
Harris, 97 AD3d 1111, 1112 [2012], lv denied 19 NY3d 1026 [2012]
[internal quotation marks and citation omitted]). Rather,
"whether to object to [or request] the submission of a lesser
included offense is often a strategic decision that could
reasonably be made either way. A defendant who thinks his [or
her] chances of acquittal are small may welcome giving the jury
an opportunity for a compromise verdict" (People v Turner, 5 NY3d
                              -12-                106254

476, 483 [2005]); alternatively, a defendant may elect "not to
request a lesser included offense in hopes of securing a complete
acquittal" (People v Wicks, 73 AD3d 1233, 1236 [2010], lv denied
15 NY3d 857 [2010]). Here, based upon defendant's theory of the
case – namely, that she lacked the culpable mental state required
to sustain a conviction of manslaughter in the second degree –
counsel's decision not to request the lesser included offense of
criminally negligent homicide arguably represented a legitimate
trial strategy, and "[t]he fact that this reasonable strategy
proved unsuccessful does not equate with ineffective assistance
of counsel" (People v Casseus, 120 AD3d 828, 830 [2014]).

      We reach a similar conclusion with regard to counsel's
failure to object when the prosecutor asked defendant if she had
"met with" her attorney prior to trial. As a starting point, we
reject defendant's assertion that the prosecutor's inquiry in
this regard was the functional equivalent of impermissibly
questioning defendant as to her invocation of the right to
counsel (compare People v Morrice, 61 AD3d 1390, 1391 [2009]).
That said, even assuming that the question was improper, we do
not find it to be "so egregious as to deny defendant a fair
trial" (People v Rawleigh, 89 AD3d 1483, 1484 [2011], lv denied
18 NY3d 961 [2012]). Further, defense counsel's decision not to
object to this singular question may well have been "a reasonable
and legitimate strategy under the circumstances" (People v
Taylor, 1 NY3d 174, 177 [2003] [internal quotation marks and
citations omitted]; see People v Sabines, 121 AD3d 1409, 1412
[2014]) – particularly given the manner in which defense counsel
questioned certain of the People's witnesses as to their contact
with the prosecutor prior to trial. Defendant's remaining
contentions, including her assertion that the sentence imposed
was harsh and excessive, have been examined and found to be
lacking in merit.

     Garry, J.P., Lynch and Clark, JJ., concur.
                              -13-                 106254

      ORDERED that the judgment is affirmed, and matter remitted
to the County Court of Saratoga County for further proceedings
pursuant to CPL 460.50 (5).




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
