| People v Donaldson |
| 2007 NY Slip Op 09971 [46 AD3d 1109] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert A.Donaldson, Jr., Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (John F. Lambert of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Otsego County (Coccoma, J.),rendered July 17, 2006, upon a verdict convicting defendant of the crime of driving whileintoxicated.
Defendant was convicted of driving while intoxicated after a jury trial. On this appeal, hecontends that County Court erred in its Sandoval ruling and in denying his request toallow the jury to spray his Primatine Mist during deliberations. He further argues that his prisonsentence of 2
With regard to the Sandoval ruling, we find that, regardless of its remoteness in time,defendant's 14-year-old attempted robbery conviction is probative of his character fortruthfulness (see People v Walker, 83 NY2d 455, 459 [1994]; People v Trichilo,230 AD2d 926, 928 [1996], lv denied 89 NY2d 931 [1996]), as are the five theft-relatedconvictions allowed by County Court (see People v Tarver, 292 AD2d 110, 116-117[2002], lv denied 98 NY2d 702 [2002]). Because the court properly concluded that theprobative value of these convictions outweighed their prejudicial effect (see People vSandoval, 34 NY2d 371 [1974]), we find defendant's claim of reversible error unpersuasive.
We also do not agree with defendant's contention that County Court committed reversibleerror by denying his request to permit the jury to spray his Primatine Mist in the jury [*2]room. Defendant claims that had the jury been allowed to smell thatspray, they might have concluded that the officer who stopped defendant's car on the night inquestion actually smelled that medicine, instead of alcohol, on defendant's breath. However, evenassuming that the court erred, the overwhelming evidence of defendant's intoxication at the timeof his arrest—including the testimony of three police officers that defendant's speech wasslurred, that he was staggering and holding on to his vehicle to keep his balance, that he failedthree field sobriety tests and that he refused both a breathalyzer and a blood test—rendersany error harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Beyer, 21 AD3d 592,594-595 [2005], lv denied 6 NY3d 752 [2005]; People v Gallup, 302 AD2d 681,683 [2003], lv denied 100 NY2d 594 [2003]).
Finally, considering defendant's extensive criminal history, including two prior convictionsfor driving while intoxicated, we are not persuaded to disturb the sentence imposed by CountyCourt (see People v Hamm, 29AD3d 1158, 1160 [2006], lv denied 7 NY3d 848 [2006]; People v Gallup,302 AD2d at 684-685).
Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.