| People v King |
| 2010 NY Slip Op 07618 [77 AD3d 1173] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thomas P.King, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Tracy E. Steeves of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedAugust 20, 2008, upon a verdict convicting defendant of the crimes of driving while intoxicated(two counts) and aggravated unlicensed operation of a motor vehicle in the first degree.
In March 2006, a state trooper responding to the scene of a motor vehicle accident in theTown of Saugerties, Ulster County found several individuals standing near a vehicle that had leftthe road and struck a telephone pole. One of these people, a young man, told the trooper thatdefendant had been the operator of the wrecked vehicle, had returned to his nearby residenceimmediately after the accident, and had asked the young man to go to the scene and tell policethat he, rather than defendant, had been driving the vehicle. A second trooper went to defendant'sresidence, spoke with him there, and returned with him to the accident scene.
The first trooper testified that after he arrived at the scene, defendant admitted that he was thedriver and had been drinking before the accident. Both troopers testified that defendant smelledof alcohol, slurred his speech, and had glassy, bloodshot eyes. Defendant was given field sobrietytests, several of which he failed, and a portable breath screen test which indicated the presence ofalcohol. He was then arrested for driving while intoxicated and transported to State Policebarracks, where he was given driving while intoxicated and Miranda warnings [*2]followed by a breathalyzer test revealing a blood alcohol content of.17%.
Defendant was indicted on two counts of driving while intoxicated and one count ofaggravated unlicensed operation of a motor vehicle in the first degree. During a suppressionhearing, defendant raised, among other things, Payton and Miranda arguments.County Court denied the motion to suppress in its entirety. After a jury trial, defendant wasconvicted as charged and sentenced, respectively, to two concurrent prison terms of 2½ to 7years and a term of incarceration of 1
Defendant contends that the verdict was not supported by the weight of the evidence. Inevaluating this claim, this Court must "view the evidence in a neutral light and, if a conclusioncontrary to guilt would not be unreasonable . . . then weigh the relative probativeforce of any conflicting testimony and the relative strength of conflicting inferences that may bedrawn therefrom" (People vTrumbach, 31 AD3d 1054, 1055 [2006], lv denied 10 NY3d 772 [2008]; seePeople v Bleakley, 69 NY2d 490, 495 [1987]). Defendant argues that the jury failed toaccord appropriate weight to testimony supporting his claim that he did not become intoxicateduntil after the accident occurred. During his testimony, defendant conceded that he hadasked the young man to lie on his behalf in order to conceal the fact that he had been driving, butasserted that he had done so not because he was intoxicated but because he did not have a validdriver's license. He testified that he drank only one 12-ounce beer several hours before theaccident and consumed no more alcohol until after the accident, when he drank three more beersand about two shots of Jack Daniels before his return to the scene. The young man testified thatdefendant did not appear intoxicated immediately after the accident, and that later that evening itappeared that his supply of Jack Daniels, kept at the residence he shared with defendant, wasdepleted. Based on this testimony, a verdict inconsistent with guilt would not have beenunreasonable. However, the People presented substantial contradictory evidence, including thetroopers' testimony that defendant initially denied that he had been drinking at home, admitted atthe accident scene that he had been drinking and driving, and did not claim that he becameintoxicated after the accident until after the breathalyzer test was administered. "[W]e accordgreat deference to the jury's conclusions regarding the credibility of witnesses and the weight tobe given their testimony" (People vScott, 47 AD3d 1016, 1017 [2008] [internal quotation marks and citations omitted],lv denied 10 NY3d 870 [2008]). It was not unreasonable for the jury to resolve thecredibility issues thus presented against defendant, particularly in light of his inconsistentaccounts of the night's events and his admission that he had asked the young man to lie on hisbehalf (see People v Smith, 27AD3d 894, 896-897 [2006], lv denied 6 NY3d 898 [2006]; People v Massey, 45 AD3d 1044,1046-1047 [2007], lv denied 9 NY3d 1036 [2008]). We therefore find that the verdictwas not against the weight of the evidence.
Defendant further contends that he did not receive the effective assistance of counsel. Toestablish this claim, he was required to " 'demonstrate that his attorney failed to providemeaningful representation' " (People vSomerville, 72 AD3d 1285, 1288 [2010], quoting People v Caban, 5 NY3d 143, 152 [2005]). Contrary to defendant'sclaim that his attorney did not effectively address the allegedly coercive entry of a trooper intohis home, counsel made a vigorous Payton argument at the close of the suppressionhearing and renewed it at trial.[FN*]As to [*3]the trial testimony of a witness who purportedly wouldhave testified to his sobriety before the accident, the record reveals that defendant himselfdeclined to call the witness. Counsel made appropriate efforts on defendant's behalf throughoutthe proceedings, including objections to the admissibility of defendant's statements onMiranda and notice grounds (see CPL 710.30 [1]) and extensive examination andcross-examination during the trial. "Under the totality of the circumstances and being mindfulthat we must avoid confusing true ineffectiveness with mere losing tactics and according unduesignificance to retrospective analysis" (People v Jones, 70 AD3d 1253, 1256 [2010] [internal quotationmarks and citations omitted]), we conclude that defendant received meaningful representation(see People v Baldi, 54 NY2d 137, 147 [1981]; People v Colvin, 37 AD3d 856, 857-858 [2007], lv denied8 NY3d 944 [2007]).
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant also claims that histestimony regarding lack of consent to the trooper's entry should have been presented at thesuppression hearing. This testimony would not have affected the outcome. The trooper clearlydid not enter the home "in order to make a routine felony arrest" (Payton v New York,445 US 573, 576 [1980]); defendant was not arrested until after he voluntarily accompanied thetrooper back to the accident scene and failed sobriety and breath tests.