People v. Briskin

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