        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1399
KA 11-00448
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JANELLE Y. HOGUE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARTIN P. MCCARTHY,
II, OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered January 14, 2011. The judgment
convicted defendant, upon a jury verdict, of vehicular assault in the
second degree, driving while ability impaired by drugs (two counts)
and driving while ability impaired by the combined influence of drugs
or of alcohol and any drug or drugs.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her,
upon a jury verdict, of vehicular assault in the second degree (Penal
Law § 120.03 [1]), two counts of driving while ability impaired by
drugs (Vehicle and Traffic Law § 1192 [4]), and driving while ability
impaired by the combined influence of drugs or of alcohol and any drug
or drugs (§ 1192 [4-a]). The charges arose from a single-vehicle
accident that occurred when a vehicle operated by defendant and
carrying two passengers left the roadway and rolled over multiple
times, coming to rest in a nearby field. By making only a general
motion for a trial order of dismissal, defendant failed to preserve
for our review her contention that the conviction is not supported by
legally sufficient evidence (see People v Gray, 86 NY2d 10, 19). In
any event, that contention lacks merit and, contrary to defendant’s
further contention, viewing the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant contends that the warrant application for a court-
ordered blood test was insufficient because it failed to identify the
source of its information. We reject that contention. “[A]n
application for a court-ordered blood test may contain hearsay and
                                 -2-                          1399
                                                         KA 11-00448

double hearsay” as long as the application “disclose[s] that it is
supported by hearsay and identif[ies] the source or sources of the
hearsay” (People v Freeman, 46 AD3d 1375, 1377, lv denied 10 NY3d
840). Here, the warrant application and supporting affidavit both
stated that they were based on the observations of the police officer
who responded to the scene of the accident. We reject defendant’s
further contention that the warrant application was insufficient
because it failed to provide sufficient facts to support the
conclusion that a passenger in defendant’s vehicle “suffered serious
physical injury” as required by Vehicle and Traffic Law § 1194 (3) (b)
(1). The warrant application stated that a passenger in the vehicle
had been “seriously injured” inasmuch as he had sustained lacerations
to the head, was trapped inside the vehicle, and needed to be “[m]ercy
[f]lighted” to a hospital. We conclude that those statements are
sufficient to meet the requirements of section 1194 (3) (b) (1).

     Defendant contends that the court erred in admitting testimony
that she refused to submit to a chemical test and in instructing the
jury regarding that refusal. Those contentions are not preserved for
our review (see CPL 470.05 [2]). In any event, those contentions lack
merit. Defendant’s refusal to take the test was admissible to show
her consciousness of guilt (see People v Demetsenare, 243 AD2d 777,
780, lv denied 91 NY2d 833).

     We reject defendant’s further contention that the police lacked
probable cause to arrest her. To arrest defendant under Vehicle and
Traffic Law § 1192, it was necessary for the arresting officer to have
evidence that it was “more probable than not that defendant [was]
actually impaired” (People v Vandover, 20 NY3d 235, 239). Here, the
arresting officer had such evidence. He was informed by witnesses
that defendant’s vehicle was traveling at a high rate of speed before
leaving the roadway and rolling over multiple times. In addition,
defendant provided the officer with inconsistent explanations
regarding how the accident occurred, and the officer observed that
defendant was unsteady on her feet. Finally, defendant admitted to
the officer that she had consumed alcohol approximately three hours
prior to the accident, and an Alco-Sensor test at the scene returned a
positive result (see People v Kulk, 103 AD3d 1038, 1040, lv denied 22
NY3d 956).




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
