Christopher J. Cassar, for appellant. Suffolk County District Attorney (Kim Marie Carson of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Town of East Hampton, Suffolk County (Lisa R. Rana, J.), rendered November 1, 2023. The judgment convicted defendant, upon a jury verdict, of aggravated driving while intoxicated per se and common-law driving while intoxicated, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Insofar as is relevant to this appeal, on September 8, 2021, defendant was charged with aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]) and common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) after a single-vehicle accident.

Prior to the start of a jury trial, the People announced their intention to introduce a recording of a 911 call. Defendant objected to its admission on the ground of hearsay, but the Justice Court (Lisa R. Rana, J.) overruled the objection.

During their opening, the People stated "The Defense is going to want you to believe that the Defendant was not the driver despite all of the evidence you will hear, but don't be fooled by that" and "please do not forg[e]t about your common sense when you listen to the Defense try to convince you that this Defendant was not operating that [vehicle]."

The People's first witness testified, insofar as is relevant on appeal, that, at about 11:20 p.m. on the evening of the accident, she was home watching the news when she heard a loud crash directly outside of her house. She went outside and observed a vehicle rolled onto its side and a young, tall, blond woman was climbing out of the vehicle. The witness called 911 and, at [*2]the dispatcher's request, spoke to that woman and confirmed to the dispatcher that no one else was in the vehicle. During cross-examination, the witness testified that she did not observe anyone else exiting the overturned vehicle.

The arresting officer testified, among other things, that, at about 11:20 p.m. on September 7, 2021, he arrived at the scene of the subject accident and observed a vehicle rolled over onto its driver's side and defendant being helped from the vehicle. He asked defendant what happened and while talking to her, he noticed signs of intoxication: a strong odor of alcohol on her breath, slurred speech, bloodshot, glassy eyes, and that defendant was unsteady on her feet. During this conversation, defendant stated to the officer "I had one margarita . . . I was driving no one else was with me, I lied, the car just tipped over." Defense counsel did not object to this testimony. The arresting officer conducted standardized field sobriety tests on defendant, all of which she failed. Defendant was placed under arrest and transported to the hospital via ambulance without being given Miranda^[FN1] warnings. The arresting officer further testified that, in the ambulance, defendant stated "I don't need an ambulance, I just get dumb when I am drunk." Defense counsel did not object to this testimony. At the hospital, at about 12:47 a.m., defendant signed the first page of an alcohol/drug influence report, consenting to give her blood for testing. At about 5:33 a.m., at the police department, the arresting officer read defendant her Miranda rights as printed on the second page of the alcohol/drug influence report. Defendant confirmed that she understood each of her rights and that, knowing her rights, she consented to speaking with the officer. Defendant stated that she had been operating the subject vehicle at the time of the accident and signed the bottom of the report confirming that these were her answers. The arresting officer testified that, at the time she signed page two of the report, she was "significantly less intoxicated" than she had been when she signed the first page of the report in the hospital. Defense counsel did not object to this testimony. Over defense counsel's objection, the alcohol/drug influence report was admitted into evidence, along with a police accident report that the arresting officer testified he completed, which report identified defendant as the driver of the vehicle.

The defense rested its case without presenting any evidence.

Several times throughout the trial, the Justice Court gave the jury various instructions, among those: "As you know this is a criminal case. There are three basic rules about criminal cases that you must keep in mind. First the Defendant is presumed innocent unless and until proved guilty," "Do not formulate an opinion concerning the guilt or innocence of the Defendant," and "Also importantly do not formulate an opinion concerning the guilt or innocence of the Defendant at this time. We are not there yet."

Prior to the jury being charged, defendant moved for a mistrial based on the Justice Court's use of the term "innocence" when giving the jury admonitions not to form an opinion as to defendant's "guilt or innocence." Defense counsel argued that the correct standard was "guilty or not guilty." The Justice Court denied the motion, stating that such terminology was not improper, but instead part of standard jury instructions.

At the jury charge conference, defense counsel requested that the jury be instructed on the law regarding defendant's statements and the waiver of her Miranda rights, arguing that, since the [*3]arresting officer testified that defendant was intoxicated when she signed the Miranda warnings, there was "an issue as to whether she had the mental state to understand" and waive those rights. The Justice Court denied the request, stating that a record had not been made to support such a charge since the objection that defendant had raised during the trial had to do with whether defendant was actually the person who signed the alcohol/drug influence report, not the voluntariness of her signature. Defense counsel further argued that the remarks made during the People's opening statement improperly shifted the burden of proof to defendant to prove that she was not operating the vehicle, when the burden was on the People to prove that defendant was operating the vehicle. Defense counsel requested that there be a jury instruction regarding the shifting of the burden of proof. The Justice Court denied this request.

Thereafter, the jury was charged and was instructed several times that the burden of proof was with the People to prove their case beyond a reasonable doubt and that they were to decide whether defendant was guilty or not guilty.

During jury deliberations, the jury sent a note to the Justice Court asking "Why was there so much time between the arrest and the rights being read?" The Justice Court stated to the attorneys that this was not something that the court could answer and defendant agreed. The Justice Court instructed the jury to discuss the wording of the note further and then clarify it in another note if they wanted the Justice Court to answer that question or read back portions of the trial testimony. Thereafter, the jury sent another note, asking "What is the law of when a suspect has to have their rights read to them? Is there a time limit between being detained and rights being read"? Defense counsel argued that to give the juryinstructions regarding defendant's statements and the waiver of her Miranda rights at that point would prejudice defendant and the Justice Court agreed, reiterating that the evidence at trial did not support giving such instructions to the jury. The Justice Court decided that the jury would be told that this specific question could not be answered but portions of testimony or of the jury charge could be read back to them at their request. Defense counsel noted his objection, arguing that this was not a meaningful response.

Thereafter, the jury found defendant guilty of aggravated driving while intoxicated per se and common-law driving while intoxicated, and sentence was imposed.

On appeal, defendant contends that the Justice Court denied defendant a fair trial by (1) allowing the People to shift the burden of proof during their opening statement; (2) improperly allowing several reports, as well as defendant's statements, to be admitted into evidence; (3) improperly using the phrase "guilt or innocence," rather than "guilty or not guilty," when cautioning the jury not to form an opinion prematurely; (4) failing to instruct the jury on the law regarding defendant's statements and the waiver of her Miranda rights; and (5) failing to provide meaningful responses to two jury questions. The People's remarks in their opening statement do not warrant a new trial (see People v Wallace, 123 AD3d 1151 [2014]). The Justice Court clearly and correctly instructed the jury that the burden of proof remained with the People for all elements of the offenses charged (see People v Morrison, 59 AD3d 569 [2009]). In any event, to the extent that the remarks may have been improper, they were "not so flagrant or pervasive as to deny the defendant a fair trial" (People v Almonte, 23 AD3d 392, 394 [2005]). Similarly, the Justice Court's cautions to the jury not to form an opinion as to defendant's "guilt or innocence" do not require a new trial (see Wallace, 123 AD3d at 1151). The Justice Court correctly [*4]instructed the jury as to the proper standard and analysis to apply when deliberating a verdict of guilty or not guilty during the jury charge. In any event, the Justice Court's remarks were directed toward ensuring that the jurors could remain impartial and deliberate only on the evidence presented to them during trial, and, taken as a whole, they did not undermine or disparage the presumption of innocence (see Wallace, 123 AD3d at 1151; see also People v Dashosh, 59 AD3d 731 [2009]).

Contrary to defendant's contention, the recording of the 911 call was properly admitted into evidence under the present sense impression exception to the hearsay rule, and the probative value of this evidence outweighed any prejudicial effect (see People v Deverow, 38 NY3d 157, 165-166 [2022]; People v Porter, 210 AD3d 1012, 1014 [2022]; People v Chin, 148 AD3d 925, 925 [2017]; People v Coveney, 43 Misc 3d 140[A], 2014 NY Slip Op 50810[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Long, 34 Misc 3d 151[A], 2012 NY Slip Op 50300[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Defendant further contends that an alcohol/drug influence report and a hearsay statement contained within a police accident report should not have been admitted into evidence (see People v Kennedy, 68 NY2d 569 [1986]; Yassin v Blackman, 188 AD3d 62 [2020]; People v Torres, 167 AD3d 665 [2018]; People v Hakim, 60 Misc 3d 137[A], 2018 NY Slip Op 51112[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). However, even if this was error, such error was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]; People v Brown, 224 AD3d 922 [2024]).

Defendant's contention that an instruction should have been given to the jury on the law regarding defendant's statements and the waiver of her Miranda rights lacks merit. Here, the Justice Court properly found that defendant failed to adduce enough evidence at trial to raise a factual dispute as to the voluntariness of her inculpatory statements or as to whether defendant was intoxicated to the point of mania so as to call into question her state of mind at the time of her waiver (see People v Schompert, 19 NY2d 300, 305-306 [1967]). Consequently, such a jury instruction was unnecessary (see People v Baranov, 121 AD3d 706, 707 [2014]).

We find unavailing defendant's final contention that she was denied the right to a fair trial due to the Justice Court's failure to provide meaningful responses to the two jury questions. To decide whether the Justice Court abused its discretion and committed reversible error, "[t]he factors to be evaluated are the form of the jury's question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant" (People v Taylor, 26 NY3d 217, 224 [2015] [internal quotation marks omitted]). As for the first note from the jury, defendant did not object at the time and, thus, the issue is not preserved for appellate review (see CPL 470.05 [2]; People v Jordan, 62 NY2d 825, 826 [1984]; People v Card, 107 AD3d 820 [2013]; People v Fox, 70 Misc 3d 139[A], 2021 NY Slip Op 50121[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Further, on appeal, defendant did not specify how the Justice Court's handling of the second jury question prejudiced defendant. Having already made the legal determination that an instruction concerning the waiver of defendant's Miranda rights was unnecessary for the jury's deliberation, the Justice Court gave an appropriate response in order to avoid confusion of the issues for deliberation (see People v Malloy, 55 NY2d 296, 303 [1982]) or introducing new principles of law after summations (see People v Wood, 163 AD3d 1485 [2018]).

Accordingly, the judgment of conviction is affirmed.

WALSH and CONWAY, JJ., concur.

GARGUILO, P.J., taking no part.