| People v Houck |
| 2012 NY Slip Op 08572 [101 AD3d 1239] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Frank B.Houck, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered March 1, 2011, upon a verdict convicting defendant of the crime of driving whileintoxicated.
Defendant was charged by indictment with driving while intoxicated as a felony due to aprior conviction (see Vehicle and Traffic Law § 1192 [3]). Following a jury trial,he was convicted of the charge and County Court sentenced him to five years of probation and afine. Defendant now appeals. We affirm.
Defendant asserts that he was deprived of a fair trial as a result of prosecutorial misconductand an improper jury charge. Specifically, defendant argues that during cross-examination andsummation, the prosecutor impermissibly shifted the burden of proof to defendant and forcedhim to characterize a prosecution witness as a liar. Further, defendant argues that the juryinstructions did not sufficiently address the limited purpose for which evidence of defendant'sprior conviction could be used.
Among the questions during cross-examination to which defendant objected at trial, only oneis arguably relevant to the issues he raises on appeal. At one point, the prosecutor askeddefendant, "And according to you, you could have scientifically proven that [you were not [*2]intoxicated] at that time because your blood alcohol content wouldnot have been illegal, correct?" Defendant's objection to this question was overruled, anddefendant now argues that this question serves as evidence of the prosecutor's attempts toimpermissibly shift the burden of proof to defendant. Even if this question were inappropriate,standing alone it is insufficient to constitute "a flagrant and pervasive pattern of prosecutorialmisconduct" so as to warrant a new trial (People v Demming, 116 AD2d 886, 887[1986], lv denied 67 NY2d 941 [1986]; see People v Wright, 88 AD3d 1154, 1158 [2011], lvdenied 18 NY3d 863 [2011]; Peoplev White, 79 AD3d 1460, 1464-1465 [2010], lv denied 17 NY3d 803 [2011];People v Jones, 283 AD2d 665, 668 [2001], lv denied 96 NY2d 903 [2001]).
As to comments in the prosecutor's closing argument, the other questions oncross-examination and County Court's charge to the jury, defendant failed to preserve theseissues for appeal. Defendant did not object to either the closing statement, questions or juryinstructions at the time that they were given. Because he did not protest these issues at a timewhen the court had an opportunity to correct the alleged errors, they are not preserved for ourreview (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Head, 90 AD3d 1157,1158 [2011]; People v Clairmont,75 AD3d 920, 923-924 [2010], lv denied 15 NY3d 919 [2010]; People vKeller, 238 AD2d 758, 758 [1997]). As to these unpreserved issues, we decline to exerciseour interest of justice jurisdiction.
Mercure, J.P., Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.