| People v Teatom |
| 2012 NY Slip Op 00133 [91 AD3d 1025] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John Teatom,Appellant. |
—[*1] Richard J. McNally, Jr., District Attorney, Troy (Michael P. FiggsGanter of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered September 21, 2009, upon a verdict convicting defendant of the crime of driving whileintoxicated and the traffic infractions of leaving the scene of an incident without reporting,failure to keep right, and driving across a hazard marking.
Defendant was charged with two counts of driving while intoxicated (hereinafter DWI) andvarious traffic violations after he drove off a rural road and collided with a telephone pole.Following a jury trial, he was convicted of one count of DWI and the traffic infractions ofleaving the scene of an incident without reporting, failure to keep right, and driving across ahazard marking. County Court sentenced defendant to a prison term of 1 to 3 years for the DWIconviction. Defendant appeals.
Defendant contends that the evidence of his intoxication while operating his vehicle is legallyinsufficient because he did not become intoxicated until after the unwitnessed accident. Wecannot agree. A witness who came upon defendant at the accident scene testified that defendantwas staggering in the middle of the road while talking on his cell phone and, when the witnessrolled down his window and said "it looks like you have been drinking," defendant stated "well, Ididn't start drinking until after I crashed." According to the witness, defendant had slurredspeech, glossy eyes and appeared confused. A State Trooper dispatched to the accident [*2]scene found a half-empty bottle of vodka in defendant's car, butdefendant was gone. Within an hour of the accident, another Trooper found defendant at hishome and observed him to have glassy eyes, impaired motor coordination, slurred speech and ageneral odor of alcohol. Defendant failed a number of sobriety tests. The People also establishedthat the weather was clear and dry at the time of the accident and that there was only a slightbend in the roadway where defendant's vehicle was found. Defendant told the Trooper who foundhim at home that he had had one or two beers at a party before the accident. While defendantclaimed that he did not become intoxicated until he arrived home—where he allegedlydowned four more beers and half a bottle of whiskey before the Trooper arrived—and thathis staggering on the road after the accident was a result of being struck by the airbag, we viewthe evidence in the light most favorable to the People and, accordingly, find that a jury couldreasonably have concluded that defendant was intoxicated when he drove off the road (see People v Owens, 45 AD3d1058, 1059 [2007]; People vCurkendall, 12 AD3d 710, 712-714 [2004], lv denied 4 NY3d 743 [2004];People v Fitzgerald, 257 AD2d 679, 681 [1999], lv denied 93 NY2d 899 [1999]).
We find merit, however, in defendant's argument that County Court did not comply withCPL 270.35. That statute provides that a defendant's consent to the substitution of a juror afterdeliberations have commenced "must be in writing . . . signed by defendant in opencourt in the presence of the court" (CPL 270.35 [1]; see NY Const, art I, § 2). Here,County Court discharged juror No. 11 upon defendant's request, substituted the alternate with thedirection that the jury begin deliberations anew and, the next day, defendant and his counselexecuted a written consent to the substitution. Nothing in the record, however, indicates that thewritten consent was signed in open court in the presence of the court. The failure to strictlycomply with the waiver requirement infringes on defendant's fundamental constitutional right toa trial by a jury of 12 and requires reversal (see People v Page, 88 NY2d 1, 8 [1996]; People v Garbutt, 42 AD3d 665,666 [2007]; People v Whitley, 24AD3d 473, 474 [2005]; see alsoPeople v Gajadhar, 9 NY3d 438, 445-446 [2007]). Accordingly, as the issue is one ofconstitutional dimension, reversal is required despite defendant's request for the substitution andfailure to formally preserve the issue (see People v Garbutt, 42 AD3d at 667). Inasmuchas defendant is entitled to a new trial, we need not address his remaining challenges to thejudgment.
Mercure, A.P.J., Peters, Lahtinen and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Rensselaer County for a newtrial.