| People v Daggett |
| 2011 NY Slip Op 07112 [88 AD3d 1296] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronald C.Daggett, Appellant. |
—[*1] Ronald C. Daggett, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May16, 2007. The judgment convicted defendant, upon a jury verdict, of felony driving whileintoxicated, felony driving while ability impaired by drugs, and various traffic infractions.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentences imposed for felony driving whileintoxicated and felony driving while ability impaired by drugs to indeterminate terms ofincarceration of 15 years to life and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, felony driving while intoxicated (DWI) (Vehicle and Traffic Law § 1192 [3];§ 1193 [1] [c] [former (ii)]) and felony driving while ability impaired by drugs (DWAI)(§ 1192 [4]; § 1193 [1] [c] [former (ii)]). Prior to defendant's first trial, which endedin a mistrial, County Court granted the People's motion to dismiss the DWAI count. Contrary todefendant's contention in his main and pro se supplemental briefs, the court properly concludedthat the dismissal of the DWAI count was a nullity (see People v Dexter, 259 AD2d 952,952-953 [1999], affd 94 NY2d 847 [1999]), and thus permitted the People to prosecutedefendant on that count at the retrial (see generally People v Barnett, 254 AD2d 12[1998], lv denied 93 NY2d 871 [1999]; People v Clarke, 203 AD2d 916 [1994],lv denied 83 NY2d 965 [1994]). The court also properly denied defendant's motion todismiss that count prior to the retrial on statutory speedy trial grounds, inasmuch as the retrialcommenced within the applicable six-month period (see CPL 30.30 [5]).
The court properly denied the motion of defendant for a mistrial during jury deliberationsbased upon a juror's exposure to a radio broadcast concerning defendant's prior arrests for DWI(see People v Matt, 78 AD3d1616 [2010], lv denied 15 NY3d 954 [2010]; People v Costello, 104 AD2d947, 948-949 [1984]). Contrary to the contention of defendant in his main brief, the courtprovided a meaningful response to the jury's note requesting a readback of the instructions withrespect to the DWAI charge (see People v Malloy, 55 NY2d 296, 301-302 [1982],cert denied 459 US 847 [1982]). Viewing the evidence in light of the elements of theDWI and DWAI counts as charged to the [*2]jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict with respect to those counts is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
The court properly rejected defendant's constitutional challenge to the persistent felonyoffender sentencing scheme (see Peoplev Battles, 16 NY3d 54, 59 [2010]; People v Quinones, 12 NY3d 116, 119, 130-131 [2009], certdenied 558 US —, 130 S Ct 104 [2009]). Defendant's contention that the court failedto comply with that scheme in sentencing him as a persistent felony offender is not preserved forour review (see People v Proctor, 79 NY2d 992, 994 [1992]), and we decline to exerciseour power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Contrary to defendant's further contention, his previous DWI convictionsmay properly serve as predicates both for his conviction of felony DWI and felony DWAI and forpurposes of determining his eligibility for persistent felony offender treatment (see generallyPeople v Bowers, 201 AD2d 830, 831 [1994], lv denied 83 NY2d 909 [1994];People v Maldonado, 173 Misc 2d 612, 616-617 [1997]). We reject defendant'scontention that the court abused its discretion in considering his prior youthful offenderadjudication as relevant to his "history and character" (Penal Law § 70.10 [2]; see People v O'Connor, 6 AD3d738, 740-741 [2004], lv denied 3 NY3d 645 [2004]). We conclude, however, thatwhile the court did not abuse its discretion in sentencing defendant as a persistent felonyoffender, the sentence nevertheless is unduly harsh and severe. The instant offenses did not resultin physical injury or property damage, and the evidence presented at the persistent felonyoffender hearing established that defendant's criminal history is the product of his alcoholism andmental health problems. As a matter of discretion in the interest of justice, we therefore modifythe judgment by reducing the sentences imposed for DWI and DWAI to indeterminate terms ofincarceration of 15 years to life (see CPL 470.20 [6]).
We have reviewed the remaining contentions of defendant in his pro se supplemental briefand conclude that none warrants further modification or reversal of the judgment.Present—Fahey, J.P., Peradotto, Lindley, Sconiers and Green, JJ. [Prior Case History:15 Misc 3d 1143(A), 2007 NY Slip Op 51130(U).]