People v. Zowaski, 31 Misc. 3d 242

Arrest on Jan 4, 2010 for felony DWI, misdemeanor resisting arrest, and two traffic infractions; felony reduced to misdemeanor DWI; jury acquitted DWI and infractions, convicted on resisting arrest.
Medical records from hospital treatment were admitted, including two BAC readings of .209 about 75 minutes post-arrest; readings redacted from the records due to suppression challenges.
Defense challenged reliability and chain of custody; records were a certified copy provided by defense and subpoenaed by the prosecution; the court ruled there was a proper evidentiary foundation for the BAC readings.
On sentencing, defendant had a history of four alcohol-related driving convictions and admitted alcoholism at trial; court held reliability by preponderance; sentenced petitioner based on the BAC evidence.
The central legal question is whether a sentencing court may consider evidence related to an acquitted charge not presented to the jury; court ultimately allowed such consideration if proven reliable by a preponderance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May a sentencing court consider evidence related to an acquitted charge not presented to the jury?	Brockett argues acquittal forecloses use of underlying conduct.	People argues reliability and relevance justify consideration; acquittal not dispositive.	Yes; may consider with reliability proved by preponderance.
What standard governs reliability of such evidence?	Evidence must meet rigorous trustworthiness standards.	Preponderance suffices for reliability of hospital records and related data.	Reliability established by preponderance.
Does Watts permit consideration of acquitted-conduct evidence in state sentencing?	Watts supports federal permissibility; state practice follows.	State law splits; Watts controls federal constitutional question.	Yes; Watts permits consideration under due process.
Is consideration of acquitted-conduct evidence consistent with state law and public policy?	Appellate Division limits exist; Watts undercuts those limits.	No absolute prohibition; broad sentencing discretion allowed.	Consistent; no statutory prohibition and aligns with Watts.

People v Brown, 281 A.D.2d 700 (3d Dept 2001) (evidence suppressed at trial may be considered in sentencing when reliable)
People v Mancini, 239 A.D.2d 436 (2d Dept 1997) (sentencing may rely on information not presented to jury if reliable)
People v Neish, 232 A.D.2d 744 (3d Dept 1996) (letters admitting conduct not charged can be used to explain conviction context)
People v La Veglia, 215 A.D.2d 836 (3d Dept 1995) (trial evidence related to acquitted conduct may inform sentencing)
People v Estenson, 101 A.D.2d 687 (4th Dept 1984) (broader sentencing information permitted if reliable)
Outley, 80 N.Y.2d 702 (N.Y. 1993) (arrest between plea and sentencing may enhance if basis exists)
United States v Watts, 519 U.S. 148 (U.S. 1997) (acquittal does not bar consideration of underlying conduct if proven by preponderance)