| People v Rawleigh |
| 2011 NY Slip Op 08066 [89 AD3d 1483] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard Rawleigh,Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), rendered October2, 2008. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated, a class Dfelony (two counts).
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 of twocounts of felony driving while intoxicated ([DWI] Vehicle and Traffic Law § 1192 [2], [3];§ 1193 [1] [c] [former (ii)]). Contrary to defendant's contention, the evidence is legally sufficientto establish that he operated a motor vehicle while having more than .08 of one per centum by weight ofalcohol in his blood (see § 1192 [2]; People v McCloskey, 78 AD3d 1077, 1078 [2010], lv denied16 NY3d 861 [2011]), and that he operated the vehicle while in an intoxicated condition (see§ 1192 [3]; People vMcGraw, 57 AD3d 1516, 1517 [2008]). Police and civilian witnesses testified that defendantwas unsteady on his feet, that his eyes were glassy or bloodshot, that his speech was slurred, and thathe smelled of alcohol. Defendant admitted that he consumed three 40-ounce bottles of beer and oneother beer of unspecified quantity, and a subsequent breath test showed defendant's blood alcoholcontent (BAC) to be .10. Thus, viewing the evidence in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficientwith respect to both counts of driving while intoxicated (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Defendant's remaining contentions concerning the legal sufficiency of theevidence are unpreserved for our review inasmuch as his trial order of dismissal was not specificallydirected at the alleged deficiencies identified on appeal (see People v Gray, 86 NY2d 10, 19[1995]; People v Roman, 85 AD3d1630 [2011], lv denied 17 NY3d 821 [2011]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we further concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at495).
Defendant further contends that the People committed a Brady violation and that he wasthereby denied a fair trial based on the People's failure to provide him with photographs taken of him onthe date of his arrest. Contrary to defendant's contention, there was no Brady violation.[*2]"Brady . . . does not require prosecutors to supplya defendant with evidence when the defendant knew of, or should reasonably have known of, theevidence and its exculpatory nature" (People v Doshi, 93 NY2d 499, 506 [1999]; see People v Singleton, 1 AD3d 1020,1021 [2003], lv denied 1 NY3d 580 [2003]). Here, the circumstances of defendant's arrestwere such that he knew or should have known that he was being photographed and that thephotographs were allegedly exculpatory in nature (see People v Rivera, 82 AD3d 1590, 1592 [2011], lv denied 17NY3d 800 [2011]; People v Gilpatrick,63 AD3d 1636, 1637 [2009], lv denied 13 NY3d 835 [2009]).
We also reject defendant's contention that he was denied a fair trial when the prosecutor asked himon cross-examination whether before testifying he had reviewed notes from a notepad situated next todefense counsel. Even assuming, arguendo, that the prosecutor's question was improper, weconclude that it was not so egregious as to deny defendant a fair trial (see People v Chatman,281 AD2d 964, 966 [2001], lv denied 96 NY2d 899 [2001]; see generally People v Agostini, 84 AD3d1716 [2011]). Defendant did not object when the prosecutor asked him whether his testimonywas "the God-spoken truth." Thus, he failed to preserve for our review his contention that he wasdenied a fair trial by that question (see CPL 470.05 [2]), and we decline to exercise our powerto review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's further contention, we conclude that the sentence is not unduly harsh orsevere particularly in light of his criminal history and the fact that these crimes were committed after hehad completed serving a sentence of incarceration of 1