| People v Anderson |
| 2011 NY Slip Op 07759 [89 AD3d 1161] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kenneth L.Anderson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 23,2009 in Albany County, upon a verdict convicting defendant of the crime of aggravated unlicensedoperation of a motor vehicle in the first degree and the traffic infraction of driving while ability impaired.
In 2009, in the City of Cohoes, Albany County, defendant was stopped by police officers who hadobserved him driving down the center of a two-lane street. Defendant refused a field sobriety test and,based on his unsteady gait, appearance and the smell of alcohol on his breath, the officers arrested him.At the police station, after he was notified that a refusal to consent to a chemical test of his bloodalcohol or drug content could be used as evidence against him, defendant refused such testing.
Thereafter, defendant, whose license already had been revoked after a 2004 driving whileintoxicated conviction in accordance with Vehicle and Traffic Law § 1192 (3), was indicted andcharged with driving while intoxicated and aggravated unlicensed operation of a motor vehicle in thefirst degree (see Vehicle and Traffic Law § 511 [1] [a]; [2] [a] [ii]; [3] [a] [i]). Inaccordance with CPL 200.60 (3) (a), to preclude the People from introducing evidence at trial of thatprior conviction to prove that defendant knew or had reason to know that his license had beenrevoked—an element of aggravated unlicensed operation of a motor vehicle—defendantadmitted the 2004 driving while intoxicated conviction. Following a Sandoval [*2]hearing, Supreme Court held that if defendant testified at trial, the Peoplecould impeach him by asking if he had been convicted of a misdemeanor in 2004, but not as to otherspecifics of the conviction, nor could they inquire as to another driving while intoxicated conviction from2004. Defendant testified at trial.
Defendant was convicted after the jury trial of the lesser included offense of driving while abilityimpaired and aggravated unlicensed operation of a motor vehicle in the first degree, and was sentencedto an aggregate prison term of 1
It is now well settled that a defendant's refusal to submit to a chemical test is admissible todemonstrate consciousness of guilt "provided the People show that 'the person was given sufficientwarning, in clear and unequivocal language, of the effect of such refusal and that the person persisted inthe refusal' " (People v Richburg, 287 AD2d 790, 791 [2001], lv denied 97 NY2d687 [2001], quoting Vehicle and Traffic Law § 1194 [2] [f]; see People v Thomas, 46NY2d 100, 108-109 [1978], appeal dismissed 444 US 891 [1979]). No dispute exists thatdefendant was adequately warned as to the consequences of his refusal to submit to a chemical test, orthat he repeatedly refused to take such a test. Defendant argues, nevertheless, that the People'sstatements and questioning of him at trial regarding his refusal to consent to a chemical blood testdeprived him of a fair trial by impermissibly shifting the burden of proof to him. Specifically, during bothcross-examination and summation, the People suggested that, by refusing to take the test, defendantforewent the opportunity to prove his innocence. Supreme Court sustained defendant's objections tothese questions and comments, informing the jury that defendant did not bear any burden of proof andthat it was entitled, but not required, to infer that defendant refused the test because he feared it wouldprovide evidence of his guilt. Under these circumstances, we see no evidence that the burden of proofwas improperly shifted to defendant or that he was deprived of a fair trial (see People v Beyer, 21 AD3d 592,595 [2005], lv denied 6 NY3d 752 [2005]; People v Poladian, 189 AD2d 911,912-913 [1993], lv denied 81 NY2d 891 [1993]).
Next, defendant contends that Supreme Court's CPL 200.60 ruling was violated by the court'ssubsequent Sandoval ruling admitting evidence of his prior conviction for impeachmentpurposes, and by the People's cross-examination of defendant regarding his need for a driver's license."The purpose of CPL 200.60 is to give a defendant the opportunity to stipulate to a prior conviction toavoid the prejudicial impact of having the prior offense proven to the jury" when the prior conviction isan element of the crime charged (People v Reynolds, 283 AD2d 771, 772 [2001], lvdenied 96 NY2d 866 [2001]; see People v Cooper, 78 NY2d 476, 481 [1991]).However, evidence of the prior conviction may still be adduced for purposes of impeachment shouldthe defendant testify in his or her own defense, provided that the trial court "expressly balanc[es] theprobative impeachment value of that crime against its potential for undue prejudice" (People v Gilliam, 36 AD3d 1151, 1153[2007], lv denied 8 NY3d 946 [2007]). Here, the court properly balanced the potentialprejudice to defendant against the probative value of the evidence in fashioning its Sandovalcompromise, permitting evidence that defendant was convicted of a misdemeanor in 2004 butprecluding testimony as to the details of that conviction or mention of any of his multiple priorconvictions (see People v Stevens, 65AD3d 759, 762 [2009], lv denied 13 NY3d 839 [2009]; People v Young, 13 AD3d 716, 718[2004]).
On cross-examination, the People attempted to establish that a license was a necessity fordefendant, suggesting that he would have had a strong motive to refuse the test and thereby [*3]risk losing his license. However, the People did not ask defendant if hislicense was suspended or revoked and, in fact, their questions presumed that defendant had a driver'slicense at the time of his arrest on the current charges. During deliberation, the jury submitted a noteasking if it was "a matter of record that . . . defendant did not have a license" when he wasarrested for the current charges, and Supreme Court responded that the jury need not answer thatquestion in order to return its verdict. Under these circumstances, the CPL 200.60 ruling was notviolated, either by the People's questions about defendant's refusal to take the chemical test or bySupreme Court's Sandoval ruling (see People v Gilliam, 36 AD3d at 1153; Peoplev Reynolds, 283 AD2d at 772).
We reject defendant's remaining argument that his admission at the CPL 200.60arraignment—that he "knew or should have known" that his driver's license had beenrevoked—was insufficient to establish, as required to prove aggravated unlawful operation of amotor vehicle, that he "kn[ew] or ha[d] reason to know" that his driver's license had been revoked(Vehicle and Traffic Law § 511 [1] [a]; see People v Pacer, 6 NY3d 504, 508 [2006]). Simply put, we see noviable distinction between a finding that one "should have known" something and a finding that he or she"had reason to know" it.
Peters, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.