| People v McRobbie |
| 2012 NY Slip Op 05668 [97 AD3d 970] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David E.McRobbie, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered April 19, 2010, upon a verdict convicting defendant of the crime of driving whileintoxicated.
In August 2008, a State Trooper observed defendant driving a four-wheel, all-terrain vehicle(hereinafter ATV) in a parking lot in the Village of Hermon, St. Lawrence County without ahelmet. After apparently seeing the trooper, defendant drove in the opposite direction and thenonto a public highway. The trooper followed, until defendant pulled into a driveway and crosseda backyard. Shortly thereafter, the trooper found defendant lying in the middle of a nearby road,next to the overturned ATV. Ice and cans of beer had spilled onto the road from a cooler that wason the ATV. The trooper later testified that defendant smelled of alcohol, had poor coordinationwhen walking, and admitted to consuming alcohol, though without clearly indicating the amount.Defendant refused medical treatment, refused to submit to field sobriety tests, and twice refusedto submit to a chemical test. He was arrested and charged with driving while intoxicated andseveral traffic violations. Following a jury trial, he was convicted upon the felony charge ofdriving while intoxicated and sentenced to 120 days in the local jail, to be served on weekends,five years of probation, and revocation of his driving privilege. Defendant appeals.[*2]
Initially, defendant's challenge to the legal sufficiency ofthe evidence supporting his conviction for driving while intoxicated (see Vehicle andTraffic Law § 1192 [3]) is unpreserved. Defendant made a general motion to dismiss at theclose of the People's case, and failed to renew this motion at the close of all evidence (see People v Lane, 7 NY3d 888,889 [2006]; People v Fisher, 89AD3d 1135, 1136 [2011], lv denied 18 NY3d 883 [2012]). However, defendant alsoasserts that the weight of the evidence does not support a finding that he was intoxicated, and wewill evaluate the proof in that respect (see People v Dancy, 87 AD3d 759, 760 [2011]). In considering thisclaim, we view the evidence in a neutral light. If a different finding would not have beenunreasonable, we then, like the trier of fact, "weigh the relative probative force of any conflictingtestimony and the relative strength of conflicting inferences that may be drawn therefrom" (People v King, 77 AD3d 1173,1174 [2010] [internal quotation marks and citations omitted]; see People v Romero, 7 NY3d 633, 643-644 [2006]).
At trial, the trooper testified that defendant appeared to see him and then drove away, makingsharp turns, swerving, and driving in the wrong lane. In addition to defendant's admission at thescene that he had consumed alcohol, the trooper and an emergency medical technician eachtestified that defendant smelled of alcohol and exhibited signs of intoxication, specifically, lackof coordination and delayed response to questioning. On defendant's behalf, his nephew testifiedthat defendant had consumed only one beer, and that the beer found at the scene belonged to him,not defendant. The nephew and defendant's brother testified that defendant neither appeared to beintoxicated nor smelled of alcohol, and that defendant lost consciousness after the accident. Theytestified that there were problems with the ATV's steering and that, immediately prior to theaccident, the ATV kept veering off the road. A central theme of the defense was that defendant'shead injury accounted for his conduct and the observations of certain witnesses following theaccident, rather than intoxication. The hospital records indicated that defendant "hit his head" andcould not recall the accident. Although an emergency room triage nurse testified that the signsand symptoms of intoxication and head injury are similar, and that she had not noted a smell ofalcohol, she also testified that she did not observe symptoms of a head injury. Accordingdeference to the jury's credibility determinations, it was not unreasonable that they rejected thealternate theories explaining defendant's erratic driving and physical condition. We thus find thatthe proof established defendant's intoxication, and the verdict was not against the weight of theevidence (see People v Swan, 90AD3d 1146, 1148 [2011]; People vJohnson, 70 AD3d 1188, 1189-1190 [2010]).
Defendant further contends that he did not receive the effective assistance of counsel. Toestablish this claim, he is required to demonstrate that he was not provided "meaningfulrepresentation" and that there is an " 'absence of strategic or other legitimate explanations' forcounsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2005], quoting People vRivera, 71 NY2d 705, 709 [1988]; see People v Garrow, 75 AD3d 849, 852 [2010]). Defendantalleges multiple errors, but the record reveals that counsel was prepared and presented a plausibledefense, made relevant objections during trial, gave cogent and consistent opening and closingstatements, cross-examined witnesses, and made an appropriate posttrial motion (see People v Pinkney, 90 AD3d1313, 1317 [2011]; compare Peoplev Miller, 63 AD3d 1186, 1187-1188 [2009]). Although counsel erred in failing to renewthe motion to dismiss, the motion would not have been compelling (see People v Winchell, 46 AD3d1096, 1098 [2007], lv denied 10 NY3d 818 [2008]; see also People v May,301 AD2d 784, 787 [2003], lv denied 100 NY2d 564 [2003]). Counsel did not err infailing to request a circumstantial evidence charge, as defendant's admission constituted directevidence of intoxication (see People v Setless, 289 AD2d 708, 709 [2001], lvdenied 98 NY2d 640 [2002]; People v Crandall, 287 AD2d 881, 883[*3][2001], lv denied 97 NY2d 703 [2002]). Defendant'sremaining arguments relative to ineffective assistance of counsel present merely speculativedisagreements with strategic choices, raised with the benefit of hindsight (see People vFlores, 84 NY2d 184, 187 [1994]; People v Richards, 78 AD3d 1221, 1225-1226 [2010], lvdenied 15 NY3d 955 [2010]; see generally People v Miller, 63 AD3d at 1186-1188).
Peters, P.J., Lahtinen, Spain and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.