| People v Kucmierowski |
| 2013 NY Slip Op 00942 [103 AD3d 755] |
| February 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert S. Kucmierowski, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco,Laurie G. Sapakoff, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Lorenzo, J.), rendered May 25, 2011, convicting him of driving while ability impairedby the combined influence of drugs or of alcohol and any drug or drugs and leaving thescene of an incident without reporting, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statementsto law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, there was probable cause for his arrest basedon the totality of the circumstances, which included, inter alia, the police officers'observations of the defendant driving on a blown-out tire and swerving, theirobservations of the defendant sweating profusely and his bloodshot eyes, their detectionof alcohol on his breath, the defendant's failure of a field sobriety test, and aneyewitness's report that the defendant's vehicle hit his parked vehicle (see People v Mojica, 62 AD3d100, 114 [2009]; People v Scalzo, 176 AD2d 363 [1991]). Accordingly, thehearing court properly denied those branches of the defendant's omnibus motion whichwere to suppress physical evidence and his statements to law enforcement officials on theground that his arrest was made without probable cause.
The trial court's Sandoval ruling (see People v Sandoval, 34 NY2d371 [1974]) was error insofar as it permitted the prosecutor to question the defendant,who testified at trial, as to a prior conviction for driving while intoxicated. The courtpermitted the prosecutor to question the defendant about that conviction while precludingthe prosecutor from questioning him about other convictions that were less similar to theinstant offense and more probative on the issue of the defendant's credibility (see People v Jones, 70 AD3d1253 [2010]). Accordingly, under the circumstances of this case, the court failed toappropriately balance the probative value of the defendant's prior crimes on the issue ofhis credibility and the possible prejudice to the defendant, and reach an appropriatecompromise ruling (see People v Dickman, 42 NY2d 294, 297-298 [1977];People v Church-Ford, 242 AD2d 579 [1997]; cf. People v Allan, 41 AD3d727 [2007]). Nevertheless, the error was harmless, as [*2]there was overwhelming evidence of the defendant's guiltand no significant probability that the error contributed to his convictions (see Peoplev Crimmins, 36 NY2d 230 [1975]; People v Goodwin, 95 AD3d 1357 [2012]; People v Jean-Louis, 74 AD3d1093 [2010]; People v Church-Ford, 242 AD2d at 579).
The defendant's challenge to the admission of evidence concerning his inability toproduce a urine sample for a chemical test is unpreserved for appellate review (seeCPL 470.05 [2]) and, in any event, without merit. The defendant's further contentionthat the trial court failed to properly respond to a jury note regarding that evidence is alsowithout merit (see People v Almodovar, 62 NY2d 126, 131-132 [1984]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based on matter dehors the record and, thus, cannot be reviewed on directappeal (see People v Smith,98 AD3d 533, 535 [2012]; People v Alburg, 96 AD3d 771 [2012]). Skelos, J.P.,Dillon, Hall and Miller, JJ., concur.