| People v Carota |
| 2012 NY Slip Op 02346 [93 AD3d 1072] |
| March 29, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert Carota,Jr., Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered September 15, 2010, upon a verdict convicting defendant of the crime of driving whileintoxicated.
In January 2009, defendant was stopped in the early morning hours by Glens Falls PoliceOfficer Daniel Habshi, after he observed defendant fail to stop at a stop sign, make a right-handturn without first signaling and then proceed to drive with his vehicle straddling two lanes atonce. When Habshi approached the vehicle, he smelled a strong odor of alcohol, asked defendantto step out of his vehicle, and then administered five field sobriety tests to defendant, all of whichindicated that defendant was intoxicated. Defendant refused to submit to an Alko-sensor test andHabshi ultimately placed him under arrest for driving while intoxicated (hereinafter DWI).Defendant was transported to the police station, where Habshi read him his Mirandarights and a DWI warning. Defendant thereafter refused to submit to a chemical/breathalyzer test,insisting that he wanted a blood test instead. Defendant was [*2]subsequently indicted on a felony DWI charge (see Vehicleand Traffic Law § 1192 [3]).[FN*]A Dunaway/Huntley hearing was held and, after a jury trial, defendant was found guiltyas charged. County Court sentenced defendant to a prison term of 1
Contrary to defendant's contentions, we are satisfied that his conviction was supported bylegally sufficient evidence and was in accord with the weight of the evidence. Vehicle andTraffic Law § 1192 (3) provides that "[n]o person shall operate a motor vehicle while in anintoxicated condition." In this regard, a driver is intoxicated when he or she has "voluntarilyconsumed alcohol to the extent that he [or she] is incapable of employing the physical and mentalabilities which he [or she] is expected to possess in order to operate a vehicle as a reasonable andprudent driver" (People v Cruz, 48 NY2d 419, 428 [1979], appeal dismissed 446US 901 [1980]; see People v Pierce, 268 AD2d 883 [2000], lv denied 94 NY2d924 [2000]; People v Hagmann, 175 AD2d 502, 504 [1991]).
Here, defendant's theory of the case was that he was impaired because he used marihuana,and he asserts that the evidence presented at trial was insufficient to support the conclusion thathe was intoxicated by alcohol. We disagree. The People's evidence included Habshi's testimonythat defendant failed to stop at a stop sign, made a right turn without first indicating and thencontinued to drive with his car in two lanes at once—all of which are violations of theVehicle and Traffic Law (see Vehicle and Traffic Law § 1128 [a]; § 1163[b]; § 1172 [a]). Habshi further testified that defendant smelled strongly of alcohol andmarihuana, his speech was slurred, he had glassy, bloodshot eyes, and he struggled to maintainhis balance upon exiting his vehicle. Habshi also testified that defendant was unable tosuccessfully complete any of the five field sobriety tests that Habshi administered—andthe transcript of the tape recording made by defendant at the time supports this testimony. Inaddition, defendant refused several times to take a breathalyzer. Moreover, after being advised ofhis Miranda rights, defendant admitted that he had been drinking prior to the traffic stop,although he claimed he had consumed only two beers. Defendant's former girlfriend, MarieCrandall, also testified that he smelled of alcohol when she saw him at the jail several hours afterhe was arrested. In a recorded telephone call with Crandall, defendant stated, among other things,that he had been "partying" since midnight prior to his arrest.
Viewing the evidence in the light most favorable to the People, we conclude that "there is [a]valid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial" that defendant wasintoxicated (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Johnson, 70 AD3d1188, 1189 [2010]). Combined with defendant's concession that he was operating a motorvehicle, we find the evidence was legally sufficient to support defendant's conviction of DWIunder Vehicle and Traffic Law § 1192 (3) (see People v Johnson, 70 AD3d at1189; People v Owens, 45 AD3d1058, 1059 [2007]; People vHamm, 29 AD3d 1079, 1080 [2006]).
Despite certain inconsistencies between Habshi's trial testimony and otherevidence—[*3]including, among other things, Habshi'sgrand jury testimony and certain written reports he completed—and the absence ofevidence of defendant's blood alcohol content, defendant's conviction was not against the weightof the evidence. Any inconsistencies in relation to Habshi's testimony were minor and " 'werethoroughly aired during cross-examination' " (People v Hamm, 29 AD3d at 1080, quotingPeople v Howard, 299 AD2d 647, 648 [2002], lv denied 99 NY2d 629 [2003]; see People v Silvestri, 34 AD3d986, 987 [2006]). Defense counsel also cross-examined Habshi regarding, among otherthings, the manner in which he administered the field sobriety tests, which defendant alleged wasimproper in various respects. In addition, the jury heard a tape recording made by defendant ofthe traffic stop and defendant's testimony that his intoxicated appearance and behavior werecaused by his use of marihuana.
The jury had a full opportunity to evaluate the credibility of the witnesses (see People vHamm, 29 AD3d at 1081), and "clearly did not accept or credit defendant's explanation forhis intoxicated appearance" (People v Johnson, 70 AD3d at 1190). Furthermore,inasmuch as the lack of evidence of defendant's blood alcohol content was the result of hisrefusal to submit to a breathalyzer test, the jury was entitled to draw a negative inference againsthim (see Vehicle and Traffic Law § 1194 [2] [f]; People v D'Angelo, 244AD2d 788, 789 [1997], lv denied 91 NY2d 890 [1998]). Viewing the evidence in aneutral light, according deference to the jury's credibility determinations, and "weigh[ing] therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony" (People v Spencer, 89 AD3d 1156, 1157 [2011] [internal quotationmarks and citations omitted]; accord People v Johnson, 70 AD3d at 1189-1190), we findthat defendant's conviction was not against the weight of the evidence.
In order to warrant the submission to the jury of the charge of DWAI pursuant to Vehicle andTraffic Law § 1192 (1) as a lesser included offense of the DWI charge, defendant must"establish that it is impossible to commit the greater crime without concomitantly committing thelesser offense by the same conduct" (People v Van Norstrand, 85 NY2d 131, 135 [1995])and that, viewing the evidence in the light most favorable to defendant (see People v Hernandez, 42 AD3d657, 658-659 [2007]), there is "a reasonable view of the evidence to support a finding that. . . defendant committed the lesser offense but not the greater" (People v VanNorstrand, 85 NY2d at 135; see CPL 1.20 [37]; 300.50 [1], [2]; People vScarborough, 49 NY2d 364, 368 [1980]; People v Johnson, 45 NY2d 546, 549[1978]; accord People v Heslop, 48AD3d 190, 193-194 [2007], lv denied 10 NY3d 935 [2008]). "[A] refusal to charge alesser included crime is warranted only where every possible hypothesis but guilt of the highercrime [is] excluded" (People v Johnson, 45 NY2d at 549 [internal quotation marks andcitations omitted]; see People v Hernandez, 42 AD3d at 659).
In this case, there is no dispute that the first prong of the test was met. As to the secondprong, defendant admitted that he had consumed two beers prior to his arrest and that his abilityto operate a motor vehicle was impaired, but alleged that such impairment was caused by hisadditional use of marihuana, not by the alcohol he consumed. On the other hand, Habshi'stestimony was that defendant was intoxicated, not merely impaired, due to his consumption ofalcohol. However, a reasonable view of the evidence could support a finding that defendant wasimpaired by alcohol in violation of Vehicle and Traffic Law § 1192 (1), but not intoxicated(see People v Wimberly, 86 AD3d806, 808 [2011], lv denied 18 NY3d 863 [2011]; People v Bowman, 79 AD3d 1368, 1370 [2010], lv denied16 NY3d 828 [2011]). In making this determination, we recognize that the jury is free to acceptsome portions of Habshi's testimony and some parts of defendant's testimony, while rejectingother portions of each witness's testimony (see People v Negron, 91 NY2d 788, 792[1998]; People v Johnson, 45 NY2d at 549), [*4]and weconclude that viewing the evidence in the light most favorable to defendant does not require thatwe accept his testimony in its totality.
Thus, the jury could have believed that defendant was affected by both alcohol andmarihuana, and that the two beers he consumed resulted only in some impairment of his ability tooperate a motor vehicle, not intoxication. For example, the jury could have discounted Habshi'sultimate opinion that defendant was intoxicated, believing that he exaggerated the effect ofdefendant's consumption of alcohol on his ability to operate a motor vehicle and/or based uponHabshi's improper administration of the field sobriety tests (compare People vScarborough, 49 NY2d at 374). Alternatively, the jury could have attributed some ofHabshi's observations of defendant's appearance and conduct to defendant's admitted use ofmarihuana, rather than to his alcohol consumption. Because a rational factfinder could haveconcluded on this record that defendant committed the lesser offense but not the greater, we areconstrained to reverse and remit for a new trial.
Defendant's challenges to certain pretrial rulings by County Court do not merit extendeddiscussion. First, there is no statutory requirement or decisional authority mandating a pretrialhearing to determine the admissibility of defendant's refusal to submit to a chemical test (seee.g. People v O'Rama, 78 NY2d 270, 281 [1991]; People v Thomas, 46 NY2d 100,103, 106-107 [1978], appeal dismissed 444 US 891 [1979]; see also People v Friel, 53 AD3d667, 668 [2008], lv denied 11 NY3d 854 [2008]). Moreover, the requirements ofVehicle and Traffic Law § 1194 (2) (f) for admitting such evidence were met here (seePeople v Richburg, 287 AD2d 790, 791 [2001], lv denied 97 NY2d 687 [2001]).
Nor did County Court err by limiting the Dunaway hearing so as to preclude evidenceconcerning the issue of probable cause for defendant's arrest, as opposed to the stop. Aside fromdefendant's bald assertion that he had not violated any laws, none of the documentationsupporting defendant's request for a hearing on such issue presented factual support therefor (see People v Gilmore, 72 AD3d1191, 1192 [2010]; People vMcNair, 28 AD3d 800, 800 [2006]). Thus, County Court properly limited the scope ofthe Dunaway hearing (see People v Mendoza, 82 NY2d 415, 421 [1993];People v Daniger, 227 AD2d 846, 847 [1996], lv denied 88 NY2d 1020 [1996]).
Even assuming that Habshi's grand jury testimony relating to defendant's refusal to submit toa chemical test constitutes Rosario material, he has not demonstrated any prejudiceresulting from the People's failure to turn over such material until after theDunaway/Huntley hearing (see generally CPL 240.44 [1]). Defendant received afull transcript of Habshi's grand jury testimony prior to trial, was afforded a meaningfulopportunity to cross-examine him (seePeople v Williams, 50 AD3d 1177, 1179 [2008]), and in fact did so.
Rose, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Warren County for a new trial.
Footnote *: The People also filed a specialinformation accusing defendant of having been previously convicted of DWI.