| People v Horsey |
| 2007 NY Slip Op 08618 [45 AD3d 1378] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David M.Horsey, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Jessica Birkahn of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), renderedSeptember 15, 2004. The judgment convicted defendant, upon a jury verdict, of felony drivingwhile intoxicated (two counts) and driving without headlamps.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3];§ 1193 [1] [c] [ii]) and driving without headlamps (§ 375 [2] [a] [1]). Contrary todefendant's contention, County Court properly concluded that the police made " 'reasonable andsufficient' efforts" to contact an attorney upon the request of defendant prior to eliciting hisconsent to submit to the chemical breath test (People v DePonceau, 275 AD2d 994, 994[2000], lv denied 95 NY2d 962 [2000]; see generally People v Shaw, 72 NY2d1032, 1033-1034 [1988]; People v Gursey, 22 NY2d 224, 227-229 [1968]; People vMonahan, 295 AD2d 626, 627 [2002], lv denied 98 NY2d 770 [2002]). Where, ashere, the attorney requested by the defendant " 'cannot be reached promptly by telephone orotherwise, the defendant may be required to elect between taking the test and submitting torevocation of his license, without the aid of counsel' " (DePonceau, 275 AD2d at 994,quoting Gursey, 22 NY2d at 229).
Contrary to the further contention of defendant, the court properly denied hischallenge for cause to a prospective juror. The prospective juror gave the requisite unequivocalassurances that she would follow the law and consider police testimony just as she would anyother testimony (see People v Chambers, 97 NY2d 417, 419 [2002]; People v Madison, 8 AD3d 956,957 [2004], lv denied 3 NY3d 709 [2004]; People v Cato, 306 AD2d 912, 913[2003], lv denied 1 NY3d 569 [2003]; see generally People v Johnson, 94 NY2d600, 614 [2000]).We reject defendant's contention that the court erred in allowing the People to introduceMolineux evidence. The evidence was properly admitted in order to complete thenarrative of the chemical breath test operator with respect to his preliminary steps inadministering the breath test [*2]to defendant, and it wasadmissible in order to lay a foundation for the breath test results (see generally People vTosca, 98 NY2d 660 [2002]; People v Till, 87 NY2d 835, 836-837 [1995];People v Corchado, 299 AD2d 843 [2002], lv denied 99 NY2d 581 [2003]).Moreover, the evidence circumstantially established defendant's intoxication, i.e., bydemonstrating defendant's belligerence (see generally People v Neil, 30 AD3d 901, 902 [2006], lvdenied 7 NY3d 869 [2006]; People v O'Meara, 182 AD2d 1116 [1992], lvdenied 80 NY2d 836 [1992]), and we conclude that its probative value outweighed the riskof undue prejudice (see Till, 87 NY2d at 836-837; People v Alvino, 71 NY2d233, 242 [1987]). In any event, any error in admitting the evidence is harmless (see generallyPeople v Crimmins, 36 NY2d 230, 237 [1975]). Present—Scudder, P.J., Gorski,Centra, Fahey and Green, JJ.