| People v Biro |
| 2011 NY Slip Op 04856 [85 AD3d 1570] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Laszlo Biro,Appellant. |
—[*1] John C. Tunney, District Attorney, Bath (Brooks T. Baker of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedSeptember 30, 2009. The judgment convicted defendant, upon a jury verdict, of felonyaggravated driving while intoxicated, felony driving while intoxicated, and aggravatedunlicensed operation of a motor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict offelony aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [former(2-a)]; § 1193 [1] [c] [former (ii)]), felony driving while intoxicated (§ 1192 [3];§ 1193 [1] [c] [former (ii)]), and aggravated unlicensed operation of a motor vehicle in thefirst degree (§ 511 [3] [a] [iii]). We reject the contention of defendant that he was deniedeffective assistance of counsel based upon defense counsel's alleged failure to conduct anadequate cross-examination of the arresting officer and the officer who administered thebreathalyzer test. "To prevail on a claim of ineffective assistance, defendant[ ] must demonstratethat [he was] deprived of a fair trial by less than meaningful representation; a simpledisagreement with strategies, tactics or the scope of possible cross-examination, weighed longafter the trial, does not suffice" (People v Flores, 84 NY2d 184, 187 [1994]). Althoughdefense counsel did not cross-examine the officers concerning administration of the field andchemical sobriety tests, defendant fails to identify a single error in those tests with respect towhich defense counsel should have inquired. Moreover, the record establishes that defensecounsel's strategy was to challenge the People's allegation that defendant was operating thevehicle in question, an element of the charges against him (see Vehicle and Traffic Law§ 511 [3] [a] [iii]; § 1192 [former (2-a)], [3]). In accordance with that strategy,defense counsel elicited testimony during cross-examination of the officers that the vehicle wasstopped and the engine was off when they approached it, that the vehicle appeared to be disabledand that the vehicle may have been operated by defendant's father, who was sitting in thepassenger seat thereof.
We reject the further contention of defendant that he was denied effective assistance ofcounsel based on defense counsel's failure to request a hearing pursuant to People v Ingle(36 NY2d 413 [1975]) to challenge the legality of the vehicle stop or a probable cause hearing tochallenge the legality of defendant's arrest. It is well settled that "a showing that [defense]counsel failed to make a particular pretrial motion generally does not, by itself, establishineffective assistance [*2]of counsel" (People v Rivera,71 NY2d 705, 709 [1988]; see alsoPeople v Webster, 56 AD3d 1242 [2008], lv denied 11 NY3d 931 [2009]). Here,the record establishes that the police had the authority to approach the vehicle and requestidentification from defendant inasmuch as the vehicle was parked partially in the traffic lane of aroadway, thereby creating a traffic hazard (see generally People v Richardson, 27 AD3d 1168, 1169 [2006]; People v Dunnigan, 1 AD3d 930,931 [2003], lv denied 1 NY3d 627 [2004]). The record also establishes that the policehad probable cause to arrest defendant based on, inter alia, the odor of alcohol and the opencontainer of alcohol in the vehicle, defendant's admission that he had been drinking and hisfailure to pass field sobriety tests (see People v D'Augustino, 272 AD2d 914 [2000],lv denied 95 NY2d 851 [2000]; People v Schroeder, 229 AD2d 917 [1996]).Thus, defendant was not denied effective assistance of counsel based on defense counsel's failureto "make . . . motion[s] . . . that ha[d] little or no chance of success"(People v Stultz, 2 NY3d 277,287 [2004], rearg denied 3 NY3d 702 [2004]).
We have reviewed the remaining instances of alleged ineffective assistance of counsel raisedby defendant and conclude that he received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of felony driving while intoxicated under Vehicle and Traffic Law § 1192 (2),and it must therefore be amended to reflect that he was convicted of felony aggravated drivingwhile intoxicated under Vehicle and Traffic Law § 1192 (former [2-a]) (see People v Saxton, 32 AD3d1286 [2006]). Present—Smith, J.P., Peradotto, Carni, Sconiers and Martoche, JJ.