| People v Morrison |
| 2008 NY Slip Op 00744 [48 AD3d 1044] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David J.Morrison, Appellant. (Appeal No. 2.) |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December6, 2006. The judgment convicted defendant, upon a jury verdict, of felony driving whileintoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, offelony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c][i]) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3][a] [i]). Contrary to the contention of defendant, he was not deprived of effective assistance ofcounsel when defense counsel included in his omnibus motion a request for a Huntleyhearing to determine the admissibility of the only statement by defendant to the police thatwas contained in the People's CPL 710.30 notice, i.e., "I know that I drank too much to drive."We cannot agree with defendant that his statement was equivocal. Indeed, we conclude that itwas a damaging admission, particularly in view of additional evidence that defendant operatedthe vehicle while intoxicated. We thus conclude that defense counsel had a strategic explanationfor requesting a Huntley hearing to determine the admissibility of that statement (seegenerally People v Rivera, 71 NY2d 705, 709 [1988]). Defendant's contentions that, byrequesting a Huntley hearing, defense counsel opened the door to the admissibility ofother statements not contained in the CPL 710.30 notice and that defense counsel failed toimpeach the credibility of the police officers who testified concerning those additional statementsare based on matters outside the record and thus should be raised in a motion pursuant to CPLarticle 440 (see People v Moore, 41AD3d 1149, 1150 [2007], lv denied 9 NY3d 879 [2007], reconsideration denied9 NY3d 992 [2007]). In any event, those officers did not prepare the CPL 710.30 notice, andthus any attempts by defense counsel to impeach their credibility with respect to the failure toinclude the statements in the CPL 710.30 notice would have been futile. We agree with defendantthat defense counsel should not have questioned him concerning the underlying charges of his1988 conviction when County Court's Sandoval ruling precluded the People from doingso and that defense counsel should have objected when the prosecutor questioned defendant inviolation of the court's Sandoval ruling. We note, however, that defendant's answer [*2]to the prosecutor's question was nonresponsive and that theprosecutor immediately moved on to a different line of questioning. We thus conclude thatdefense counsel's errors were not so egregious and prejudicial that they deprived defendant of hisright to a fair trial (see People vCaban, 5 NY3d 143, 152 [2005]; People v Hobot, 84 NY2d 1021, 1022 [1995];cf. People v Ofunniyin, 114 AD2d 1045, 1047 [1985]). The further contentions ofdefendant concerning effective assistance of counsel are based largely on his hindsightdisagreements with defense counsel's trial strategies, and defendant failed to meet his burden ofestablishing the absence of any legitimate explanations for those strategies (see People vBenevento, 91 NY2d 708, 712-713 [1998]; People v Martinez, 43 AD3d 1408, 1409 [2007]). We concludethat, based on "the evidence, the law, and the circumstances of [this] case, viewed in totality andas of the time of the representation," defendant received meaningful representation (People vBaldi, 54 NY2d 137, 147 [1981]).
We reject defendant's further contention that the verdict is against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "The resolution ofcredibility issues by the jury and its determination of the weight to be given to the evidence areaccorded great deference" (People v Wallace, 306 AD2d 802, 802 [2003]; seeBleakley, 69 NY2d at 495; People v Davis, 191 AD2d 705 [1993]). The jury wasentitled to credit the testimony of the People's two eyewitnesses and the police officers withrespect to defendant's operation of the vehicle and to discredit the version of the incident set forthby defendant and his witnesses. Finally, we reject the contention of defendant that he was denieddue process at sentencing, and we conclude that the sentence is not unduly harsh or severe.Present—Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.