THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v TRACI L. BRISKEN, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
125 AD3d 1113; 3 NYS3d 200
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 man
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
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—crossing over the white fog line on thе 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
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 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 vehiсle 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 2 1/2 to 7 1/2 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 еrred 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
Nor are we persuaded that County Court erred in granting the People‘s challenge for cause as to prospective juror No. 9. Pursuant to
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]
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 solеly 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 (sеe 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 NY3d 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 wеight 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” (
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 n 12, 13 [2013], lv denied 22 NY3d 1090 [2014]). Intoxication is not an element of manslaughter in the second degree (see
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
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”
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 cоntext 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” (
Here, on the third day of deliberations, the jury tendered a note (court exhibit No. 9) inquiring, “Is there a definition of ‘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
We reach a similar conclusion with regard to counsel‘s failure tо 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. Ordered that the judgment is affirmed, and matter remitted to the County Court of Saratoga County for further proceedings pursuant to