| People v Smith (Howard) |
| 2010 NY Slip Op 50789(U) [27 Misc 3d 135(A)] |
| Decided on April 28, 2010 |
| Appellate Term, Second Department |
| This opinion is uncorrected and will not bepublished in the printed Official Reports. |
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2008-1338 RO CR.
against
Howard K. Smith, Appellant.
Appeal from a judgment of the Justice Court of the Town of Orangetown, Rockland County(Paul B. Phinney, III, J.), rendered June 4, 2008. The judgment convicted defendant, after anonjury trial, of driving while ability impaired. The appeal brings up for review the denial, aftera hearing (Paul B. Phinney, III, J.), of the branch of defendant's omnibus motion which was tosuppress evidence of defendant's refusal to submit to a chemical test.
ORDERED that the judgment of conviction is affirmed.
Defendant was convicted, after a nonjury trial, of driving while ability impaired (Vehicleand Traffic Law § 1192 [1]). He contends on appeal that the Justice Court improperlyallowed the People to present evidence at trial that he had persistently refused to submit to achemical test. He asserts that his insistence on consulting with counsel before he would consentto take a chemical test should not have been construed as a persistent refusal pursuant to Vehicleand Traffic Law section 1194 (2) (f). This argument is without merit, as defendant's repeatedattempts to contact his attorney were unsuccessful (see People v Monahan, 295 AD2d626 [2002]).
Contrary to defendant's contention, we find that the evidence, when viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legallysufficient to establish defendant's guilt of driving while ability impaired. The evidenceestablished, beyond a reasonable doubt, that defendant's ability to operate his vehicle "wasimpaired to some extent" (People v McNamara, 269 AD2d 544, 545 [2000]), that is, thatdefendant was "incapable of employing the physical and mental abilities one is expected topossess when operating a vehicle" (People v Wenz, 12 Misc 3d 134[A], 2006 NY Slip Op 51194[U][App Term, 9th & 10th Jud Dists 2006]). Moreover, we are satisfied that the verdict of guiltywas not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]; People v Romero, 7 [*2]NY3d 633 [2006]).
Finally, defendant argues that he was denied his fundamental right to be present at a materialstage of the trial because the guilty verdict was mailed to him (see People v Febo, 210AD2d 251, 252 [1994]). However, the verdict was stated in open court, at the sentencinghearing, at which defendant was present. Consequently, any error that may have been committedby the court in mailing the decision was cured when it restated its decision in open court (cf.United States v Canady, 126 F3d 352, 359, 361 [2d Cir 1997]).
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: April 28, 2010