| People v Colburn |
| 2014 NY Slip Op 08875 [123 AD3d 1292] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Colburn, Appellant. |
John A. Cirando, Syracuse, for appellant.
Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered January 9, 2012, upon a verdict convicting defendant of the crimes ofaggravated driving while intoxicated and driving while intoxicated, and of the trafficinfractions of leaving the scene of an accident and failure to keep right.
Defendant was found guilty of aggravated driving while intoxicated, driving whileintoxicated, leaving the scene of an accident and failure to keep right after a jurydetermined that he was intoxicated when he drove his car into a ditch on privately ownedresidential property, then left the car in the ditch after he was unable to drive the car backonto the roadway. He was sentenced to two concurrent prison terms of1
Initially, defendant contends that the verdict was against the weight of theevidence.[FN*]
[*2]"Inasmuch as a different verdict would not have beenunreasonable, we must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Westcott, 84 AD3d 1510, 1511 [2011] [internalquotation marks and citations omitted]). To support the verdict of aggravated drivingwhile intoxicated, the People were required to prove that defendant was operating amotor vehicle with a blood alcohol content (hereinafter BAC) of .18% or more(see Vehicle and Traffic Law § 1192 [2-a]). As for the driving whileintoxicated charge, the evidence must show that defendant was in an intoxicatedcondition when he operated the vehicle (see Vehicle and Traffic Law§ 1192 [3]). The charge of leaving the scene of an accident involvingproperty damage without reporting required the People to prove that defendantknowingly caused damage to real or personal property while operating a motor vehicleand left the accident scene without providing certain information to the damaged party(see Vehicle and Traffic Law § 600 [1] [a]). A verdict for failure tokeep right must be supported with evidence that the defendant failed to keep to the rightof a roadway that was of sufficient width (see Vehicle and Traffic Law§ 1120 [a]). While defendant concedes that his BAC exceeded the statutorylimit, his primary argument with regard to the aggravated driving while intoxicated,driving while intoxicated, and failure to keep right convictions is that he was not drivingand that he did not become intoxicated until after the accident. In this regard, defendanttestified that an individual named Chip, who he had not seen or spoken to since theaccident, was driving the car when it went into the ditch.
According deference to the jury's credibility determinations, we do not believe that itwas unreasonable for the jury to find that defendant was operating the vehicle in anintoxicated state. A defendant need not be driving to operate a vehicle for purposes of theVehicle and Traffic Law; it is enough if the evidence shows that he or she is behind thewheel with the engine running (see People v Westcott, 84 AD3d at 1512). Thetestimony was that when defendant arrived on Marcy Lamica's doorstep to requestassistance with getting the car out of the ditch, he was alone and smelled of alcohol. Inaddition to the testimony of Lamica and her sister-in-law describing his efforts,defendant acknowledged that he was behind the wheel of the car, and that the car wasrunning with the wheels spinning as he attempted to drive the car out of the ditch. Thesefactors are sufficient to establish that defendant was operating a motor vehicle on apublic highway (see People vBeyer, 21 AD3d 592, 594 [2005], lv denied 6 NY3d 752 [2005]).Similarly, we discern no reason to disturb the jury's determination that defendant wasintoxicated. The jury was entitled to credit the breathalyzer test evidence that defendant'sBAC was in excess of .18% following his arrest, the witnesses' testimony with regard todefendant's slurred speech, unsteady movements, inability to stand in the ditch and thathe smelled of alcohol. The jury was also entitled to reject defendant's claim that he hadaggravated an old injury and consumed a quantity of bourbon between the time the carwent into the ditch and when he was apprehended shortly thereafter, approximately a halfof a mile away (see People vKing, 77 AD3d 1173, 1174-1175 [2010]; People v Owens, 45 AD3d 1058, 1059 [2007]; People v Arnold, 2 AD3d975, 975 [2003], lv denied 1 NY3d 594 [2004]). We also reject defendant'sclaim that the conviction for leaving the scene of an accident was against the weight ofthe evidence. Under the circumstances presented, the jury was entitled to conclude thatdefendant did not give the required information to Lamica before leaving the accidentscene (see Vehicle and Traffic Law § 600 [1] [a]).
[*3] Defendant also claims that County Court committedreversible error when it denied the People's challenge for cause to juror No. 38. As isrelevant here, a challenge for cause may be made where a prospective juror "has a stateof mind that is likely to preclude him [or her] from rendering an impartial verdict basedupon the evidence adduced at the trial" (CPL 270.20 [1] [b]). During voir dire, juror No.38 intimated that he knew someone who was a victim of a crime involving alcohol, thathe was not happy with the outcome of the case and that he decided to go into lawenforcement as a result of his experience. While we recognize such a response warrantedfurther inquiry to secure the juror's express and unequivocal assurance of impartiality (see People v Young, 119AD3d 970, 971 [2014]), the failure of counsel and the court to conduct this inquirydoes not, under the circumstances presented, constitute reversible error. Reversible erroroccurs only if, at the time of the denial, the defendant had exhausted his or herperemptory challenges, or the defendant is forced to exercise a peremptory challengeagainst the prospective juror and then exhausts his or her peremptory challenges beforethe end of jury selection (see People v Lynch, 95 NY2d 243, 248 [2000];People v Culhane, 33 NY2d 90, 97 [1973]; People v Russell, 288 AD2d759, 760 [2001]). The anomaly here is that defendant did not join in the People'schallenge for cause and, although his peremptory challenges were eventually exhausted,defendant did not use an available peremptory challenge for juror No. 38 when the jurorwas seated (see People v Russell, 288 AD2d at 760; People v Dehler, 216AD2d 643, 643 [1995], lv denied 86 NY2d 734 [1995]). In our view, even if thecourt denied the challenge for cause in error, it was not reversible error.
We also reject defendant's claim that two sworn jurors should have been dismissedbecause they were "grossly unqualified to serve" (CPL 270.35 [1]). "A juror will bedeemed to be grossly unqualified to serve only when, after conduct[ing] a probing,tactful inquiry into the specific circumstances, it becomes obvious that a particular jurorpossesses a state of mind which would prevent the rendering of an impartial verdict" (People v Reichel, 110 AD3d1356, 1358 [2013], lv denied 22 NY3d 1090 [2014] [internal quotationmarks and citations omitted]). As such, "[t]his statutory test places a greater burden uponthe moving party than if the juror was challenged for cause" (People v Buford, 69NY2d 290, 298 [1987] [internal quotation marks and citation omitted]; see People v Wlasiuk, 90AD3d 1405, 1409 [2011]). Accordingly, while a court should generally err on theside of disqualification when a juror is challenged for cause, a juror should be removedduring a trial as grossly unqualified "only when it becomes obvious that a particular jurorpossesses a state of mind which would prevent the rendering of an impartial verdict"(People v Buford, 69 NY2d at 298).
Here, during the course of testimony by a witness to the incident, juror No. 87advised that he was related to the witness. Although it is not clear when the disclosurewas made, County Court later confirmed that the witness also disclosed that she wasrelated to a different juror, juror No. 169. There is no dispute that the jurors and thewitness were related within the degree of consanguinity that would permit a challenge forcause (see CPL 270.20 [1] [c]), and all agree that their failure to disclose wasinadvertent. The court allowed the witness to complete her testimony before conductingan in camera review with counsel and the two jurors to review the "nature of theirrelationship" to the witness.
Where a juror is "related within the sixth degree by consanguinity or affinity to. . . a prospective witness at the trial" (CPL 270.20 [1] [c]), and a timelyobjection is made, the juror is automatically barred from sitting on the jury even if he orshe claims they can be impartial (see People v Walters, 12 AD3d 953, 954 [2004]). Here,because the jurors were sworn and the witness had already testified, defendant's right toremove the jurors for cause was waived and the only available ground for removal wasthe "grossly unqualified" standard (see CPL 270.35; compare CPL 270.15[4]; 270.20; People v Harris, 57 NY2d 335, 349 [1982]). Since defendant [*4]did not argue that the jurors were grossly unqualified, theissue is not preserved for our review. Even if it were preserved, we would deem it to bewithout merit. A juror is not grossly unqualified because there is a relationship within thesixth degree of consanguinity or affinity. Indeed, "[u]nless the juror is aware of therelationship, the statutory proscription does not come into play" (People v Barnes,129 AD2d 249, 250 [1987], lv denied 70 NY2d 873 [1987]). Here, the jurorsonly realized their relation to the witness during her testimony. The record confirms thatneither juror became aware of the relationship during jury selection because they were sodistantly related. The scope of a court's evaluation is dependent on the nature of thedisqualifying conduct and, under the circumstances presented, we would not find thatany further inquiry with regard to whether the jurors were grossly unqualified wasnecessary (see People vMejias, 21 NY3d 73, 79 [2013]).
Defendant also contends that he was deprived of a fair trial due to prosecutorialmisconduct, to wit, that the prosecutor mischaracterized Lamica's testimony during hisopening argument and questioned defendant's failure to tell the police about Chip.Inasmuch as defendant did not object to either instance at trial, we find that his claim isnot preserved for our review (see People v Jordan, 99 AD3d 1109, 1110 [2012], lvdenied 20 NY3d 1012 [2013]). Nor do we believe that the conduct wasinappropriate. During his opening statement, the prosecutor was entitled to" 'state . . . the facts he expect[ed] to prove [and] the evidence heplan[ned] to introduce' " (People v Brown, 104 AD2d 696, 696 [1984],lv denied 64 NY2d 778 [1985], quoting People v Kurtz, 51 NY2d 380,384 [1980], cert denied 451 US 911 [1981]). The minor inconsistency betweenthe expected testimony and the actual testimony did not constitute misconduct. Similarly,the prosecutor's questions with regard to Chip, the ostensible driver, during defendant'scross-examination were not improper (see People v Andrews, 237 AD2d 110,110 [1997], lv denied 90 NY2d 1009 [1997]).
We also find no merit to defendant's ineffective assistance of counsel claim. Whenevaluating such a claim, this Court looks to whether "the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147[1981]). "[T]o establish ineffective assistance, a defendant must 'demonstrate the absenceof strategic or other legitimate explanations' for counsel's allegedly deficient conduct"(People v Caban, 5 NY3d143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]). Ourrole is to evaluate an attorney's "performance . . . to determine whether thetactics and strategies were consistent with those of a reasonably competent attorney. Thetest is reasonable competence, not perfect representation" (People v Oathout, 21 NY3d127, 128 [2013] [internal quotation marks and citations omitted]). Here, defendantclaims that he received ineffective representation because his trial counsel failed topursue a Huntley hearing. We disagree. A "showing that counsel failed to make aparticular pretrial motion generally does not, by itself, establish ineffective assistance ofcounsel" (People v Rivera, 71 NY2d at 709; see People v Hamms, 55 AD3d 1142, 1145 [2008], lvdenied 11 NY3d 925 [2009]). Defendant's statements during custodial interrogationthat he was not driving the car were consistent with the defense presented during thetrial. In our view, the record confirms that there was a legitimate basis for trial counsel'sdecision to forgo a Huntley hearing.
We further reject defendant's claim that he was denied the effective assistance ofcounsel because he failed to object to juror No. 38 for cause. The record confirms thattrial counsel was equivocal on his decision, but "lawyers selecting juries are notineffective because they make unconventional choices or play hunches" (People v Thompson, 21 NY3d555, 560 [2013]). Trial counsel's belief that the juror's experience "could be a goodthing" for defendant, could have been based on his demeanor or body language, factorswe cannot discern from the record (see id.; People v Barboni, 21 NY3d 393, 406-407 [2013]). Thus,we cannot conclude [*5]there was no legitimateexplanation for the perceived error (see People v Barboni, 21 NY3d at 406-407).Moreover, even if we believed that it was an error, under the circumstances, we do notbelieve that it was so "clear-cut and completely dispositive" as to constitute reversibleerror (People v Thompson, 21 NY3d at 561 [internal quotation marks andcitation omitted]).
Defendant's remaining arguments in support of his ineffective assistance of counselclaim—that trial counsel should have objected during defendant'scross-examination about Chip and failed to preserve the legal insufficiencyargument—are also without merit. As stated, we do not believe that theprosecutor's questions were objectionable (see People v Marshall, 2 AD3d 1157, 1158 [2003], lvdenied 2 NY3d 743 [2004]). The failure to preserve a legal sufficiency argumentdoes not necessarily establish ineffective assistance (see People v Harvey, 96 AD3d 1098, 1100 [2012], lvdenied 20 NY3d 933 [2012]; People v Elwood, 80 AD3d 988, 990 [2011], lvdenied 16 NY3d 858 [2011]). Based on our review, we find that, even accepting thaterrors may have occurred, defendant received meaningful representation (see Peoplev Baldi, 54 NY2d at 147, 152).
Finally, given the nature of the crimes, the risk that defendant created in thecommunity and his criminal history, we discern no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Young, 115AD3d 1013, 1015 [2014]).
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's challenge tothe legal sufficiency of the evidence was not preserved for our review (see People v Hawkins, 11NY3d 484, 493 [2008]; People v Rankin, 117 AD3d 1231, 1232 [2014]) and wedecline to exercise our interest of justice jurisdiction in connection with this unpreservedargument. Nevertheless, our weight of the evidence review necessarily includesconsideration of whether all the elements of the crimes charged were proven beyond areasonable doubt (see People vDanielson, 9 NY3d 342, 348-349 [2007]; People v Rankin, 117 AD3d at1232).