People v Davis

2012 NY Slip Op 00543 [91 AD3d 1273]

Jnury 31, 2012

Appellate Division, Fourth Department

As corrected through Wednesday, February 29, 2012

The People of the State of New York, Respondent, v MarkJ. Davis, Appellant.

D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent. Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered May 18, 2009. The judgment convicted defendant, upon a jury verdict, of driving whileintoxicated, a class D felony, and aggravated unlicensed operation of a motor vehicle in the firstdegree. 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 driving while intoxicated (Vehicle and Traffic Law 1192 [3]; 1193 [1] [c] [ii]) andaggravated unlicensed operation of a motor vehicle in the first degree ( 511 [3] [a] [i]). We rejectdefendant's contention that the stop of his vehicle was improper. Rather, we conclude that thestop was lawful inasmuch as the officer observed defendant committing a traffic violation (seePeople v Robinson, 97 NY2d 341, 348-349 [2001]; People v White, 27 AD3d 1181 [2006]).Contrary to defendant's further contention, County Court did not abuse its discretion in denyinghis request for an adjournment (see People v Jones, 79 AD3d 1773, 1774 [2010], lv denied 16NY3d 832 [2011]; People v Green, 74 AD3d 1899, 1900-1901 [2010], lv denied 15 NY3d 852[2010]; see generally People v Diggins, 11 NY3d 518, 524 [2008]). Defendant failed to preservefor our review his contention that the court violated CPL 270.05 (2) in conducting the juryselection (see People v Hayes, 71 AD3d 1477 [2010], lv denied 15 NY3d 751 [2010]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Defendant also failed to preserve for our review his contention that the evidence is legallyinsufficient to establish that he was intoxicated by alcohol (see People v Gray, 86 NY2d 10, 19[1995]; see also People v Rawleigh, 89 AD3d 1483 [2011]). In any event, his contention iswithout merit. Defendant did not contest that he was driving erratically and that he failed thesobriety tests, but he blamed his inability to pass the sobriety tests on the prescription medicationhe was taking. The arresting officer, however, testified that he smelled alcohol, particularly beer,on defendant's breath. In addition, defendant admitted to him that he drank three beers at a localbar, and defendant refused to take a breathalyzer test, which permitted the jury to infer that herefused to take the test because he knew that the results would be incriminating (see Vehicle andTraffic Law 1194 [2] [f]; People v Schuh, 4 AD3d 751 [2004], lv denied 2 NY3d 806 [2004]).Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d620, 621 [1983]), we conclude that the evidence is legally sufficient to support the conviction(see People v Scroger, 35 AD3d 1218 [2006], lv denied 8 NY3d 950 [2007]; People v Shank, 26AD3d 812, 813-814 [2006]; People v Milo, 300 AD2d 680, 681 [2002], lv denied 99 NY2d 630[2003]). In addition, viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant contends that he was denied a fair trial by prosecutorial misconduct onsummation. The court sustained defendant's objection to the comment made by the prosecutor onsummation and issued a curative instruction. In the absence of any further objection, "the curativeinstruction[ ] must be deemed to have corrected the error to the defendant's satisfaction" (Peoplev Heide, 84 NY2d 943, 944 [1994]; see People v Cox, 78 AD3d 1571, 1571-1572 [2010], lvdenied 16 NY3d 742 [2011]). We reject the further contention of defendant that he was deniedeffective assistance of counsel. Viewing the evidence, the law and the circumstances of this casein totality and as of the time of the representation, we conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Finally, thesentence is not unduly harsh or severe. Present Scudder, P.J., Smith, Centra, Lindley and Gorski,JJ.