State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 107343 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MYRON GREEN,

Appellant.

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Calendar Date: May 25, 2016

Before: Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

__________

Joseph R. Brennan, Queensbury, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee

B. Davenport of counsel), for respondent.

__________

Devine, J.

Appeal from a judgment of the County Court of Warren County

(McKeighan, J.), rendered March 13, 2015, upon a verdict

convicting defendant of the crimes of manslaughter in the second

degree and reckless endangerment in the second degree.

Defendant struck and killed a pedestrian while driving an

automobile around noon on June 21, 2012 in the Town of Bolton,

Warren County. Defendant disclosed to officers responding to the

scene that he had taken antianxiety medication prior to the

crash. Defendant told one patrol officer for the Warren County

Sheriff's Office in particular, Haley Grace, that he had taken

two central nervous system depressants earlier in the day,

including twice his prescribed dosage of Clonazepam and a dose of

Paxil. He further admitted that the Clonazepam made him
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"sleepy," and Grace subjected him to a breathalyzer test that was

negative and field sobriety tests that revealed him to be

impaired. Defendant agreed to travel to the police station for

further testing and was advised of his Miranda rights upon his

arrival, after which he stated that he wanted to "talk to [his]

attorney." The request was ignored and defendant was subjected

to a drug recognition evaluation (hereinafter DRE) that revealed

him to be impaired, an additional breathalyzer test that was

negative and two blood tests, one of which conducted pursuant to

a warrant, that revealed the presence of depressants in his

system.

Defendant was charged in an indictment with offenses

stemming from the fatal accident. His pretrial motion to

suppress the statements that he made to investigators after he

purportedly invoked his right to counsel, as well as the results

from the various tests conducted after that time, was denied. 

Defendant was thereafter convicted by a jury of manslaughter in

the second degree and reckless endangerment in the second degree. 

County Court imposed an aggregate prison sentence of 2 to 6

years. Defendant now appeals.1

Defendant asserts, and the People do not seriously dispute,

that he was in custody by the time he was administered Miranda

warnings at the station (see People v Hardy, 223 AD2d 839, 841

[1996]). The People further conceded at oral argument that

defendant invoked his constitutional and limited statutory right

to counsel in response to those warnings and that, under the

circumstances of this case, valid grounds existed to suppress his

post-invocation statements and evidence related to the DRE,

second breathalyzer and blood tests (see Vehicle and Traffic Law

§ 1194 [2] [a] [1]; People v Higgins, 124 AD3d 929, 931-932

[2015]; People v Mora-Hernandez, 77 AD3d 531, 531 [2010]).2 The

1 Defendant's application for bail pending appeal was

granted by this Court, but that order was subsequently revoked

(2015 NY Slip Op 66036[U] [2015]).

2 The second blood test was obtained pursuant to a warrant

and, while the applicant for that warrant cited his belief that
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erroneous admission of this evidence is reviewed under the

harmless error doctrine, and such an error is considered harmless

"when, in light of the totality of the evidence, there is no

reasonable possibility that the error affected the jury’s

verdict" (People v Lopez, 16 NY3d 375, 386-387 [2011] [internal

quotation marks and citations omitted]; accord People v Dashnaw,

85 AD3d 1389, 1391 [2011], lv denied 17 NY3d 815 [2011]). The

admissible evidence at trial established that defendant took

twice his prescribed dosage of Clonazepam the morning of the

accident and that he failed field sobriety tests administered at

the scene. Nevertheless, inasmuch as defendant's inadmissible

statements, the recording of the DRE test and the evidence of the

inadmissible test results themselves may well have contributed to

the conviction, it cannot be said that the erroneous admission of

that evidence was harmless (see People v Dashnaw, 85 AD3d at

1391-1392; People v Van Patten, 48 AD3d 30, 35-36 [2007], lv

denied 10 NY3d 845 [2008]; People v Hilliard, 20 AD3d 674,

678-679 [2005], lv denied 5 NY3d 853 [2005]). Thus, the

conviction must be reversed and the matter remitted for a new

trial.

Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur.

defendant had committed an offense other than one found in

Vehicle and Traffic Law § 1192, "a search warrant may validly be

issued to obtain a blood sample" if probable cause exists to

believe that "a[ny] violation of the Penal Law" has occurred

(People v Casadei, 66 NY2d 846, 848 [1985]; see People v Goodell,

164 AD2d 321, 326 [1990], affd 79 NY2d 869 [1992]). That being

said, the application for that warrant relied in significant part

upon the inadmissible DRE results, and "the derivative evidence

seized under color of the subsequent search warrant" must also be

suppressed (People v Burr, 70 NY2d 354, 362 [1987], cert denied

485 US 989 [1988]; see Murray v United States, 487 US 533, 542

[1988]).
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ORDERED that the judgment is reversed, on the law, motion

to suppress statements made and evidence related to testing

conducted after defendant's right to counsel attached granted and

matter remitted to the County Court of Warren County for further

proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court