| People v Surowka |
| 2013 NY Slip Op 01108 [103 AD3d 985] |
| February 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CraigM. Surowka, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Delaware County (Becker,J.), rendered February 14, 2011, upon a verdict convicting defendant of the crimes ofdriving while intoxicated and reckless driving (two counts), the violation of trespass andthe traffic infractions of speeding (two counts), failure to comply with a lawful order of apolice officer (two counts), failure to stop at a stop sign (two counts), improper turn(three counts) and refusal of a chemical test.
In the early morning hours of April 12, 2009, State Troopers responded to a call inthe Town of Sidney, Delaware County regarding a campfire and activity on woodedprivate property. The Troopers found a black SUV that had extensive damage, uncookedfood and over a dozen empty beers cans, but could not locate anyone on the property inthe dark, so they waited on a nearby road in their patrol vehicle. The damaged SUVdriven by defendant emerged an hour later from the property and ultimately engaged in ahigh speed chase with the Troopers in pursuit, ignoring their activated emergency lights.Defendant committed numerous traffic violations, twice failed to stop at stop signs,drove at an unsafe speed and failed to signal on turns, nearly striking a pedestrian as heentered the Village of Sidney. When the SUV came to a stop in a parking lot, defendantwas apprehended attempting to exit the still-running vehicle; he admitted being the driverand consuming alcohol. At trial, Troopers identified defendant as the person they hadobserved operating the vehicle beginning when it emerged from the wooded property.Testimony also revealed that defendant displayed signs of intoxication, including glassyeyes, a very strong odor of alcohol, unsteady and impaired motor coordination and slowand [*2]unintelligible speech. Defendant declined tosubmit to any field sobriety tests at the scene, was arrested and, after Miranda andrepeated driving while intoxicated (hereinafter DWI) refusal warnings, refused to submitto a chemical breath test to measure his blood alcohol level at the police station. He wascharged with, and subsequently indicted for, DWI as a felony and reckless driving,trespass and numerous traffic infractions. Following a jury trial, defendant was convictedas charged and sentenced to a prison term of 2 to 6 years on the DWI and concurrentdefinite terms on the remaining 13 charges, with total fines of $7,350. Defendant nowappeals.
Defendant argues on appeal that he was deprived of the effective assistance ofcounsel before and at trial. Initially, he contends that defense counsel failed to properlyadvise him regarding the People's pretrial plea offer. Given that this claim is basedexclusively on matters outside the record on appeal, the appropriate vehicle in which toraise it is a CPL 440.10 motion wherein a record focused on this issue may be developed(see People v Haffiz, 19NY3d 883, 885 [2012]; People v Wimberly, 86 AD3d 651, 652 [2011]). Here, therecord reflects that in September 2010, the People offered defendant the opportunity toenter a guilty plea to the top count, DWI, with a recommended sentence of 1 to 3 years tobe served in a drug treatment correctional facility, with a fine and appeal waiver, in fullsatisfaction of the 14-count indictment. County Court later indicated that it would acceptthe plea, but would not recommend a drug treatment correctional facility, and wouldagree to a $3,000 fine. At the outset of the January 11, 2011 pretrial proceedings whenasked by the court on the record if the offer—restated on the record—was"deemed unacceptable," defendant himself replied "yes," thereby rejecting the plea offer.The record does not at any point reflect what, if anything, counsel apprised defendantwith regard to the plea offer, including whether counsel advised defendant to accept orreject the plea deal and why, or counsel's advice, if any, regarding the strength of thePeople's proof and likelihood of a conviction and the effect that defendant's criminalhistory might have on his sentencing exposure. Indeed, it is not clear that defendantactually followed counsel's advice in rejecting the plea offer. Accordingly, on the recordbefore us, defendant's claims cannot be reviewed on direct appeal.
To the extent that defendant also contends that counsel employed "no realisticdefense strategy," this is belied by the record on appeal (see People v Benevento,91 NY2d 708, 712 [1998]). Defense counsel vigorously advocated in defense ofdefendant at all proceedings, successfully limited the Sandoval proffer,effectively cross-examined the witnesses pointing out inconsistencies between them andin relation to their grand jury testimony, and made appropriate objections. Defendant hasnot demonstrated that counsel's failure to make any particular pretrial motion deprivedhim of meaningful representation or made any argument that there was a colorable basisfor any suppression motion (see People v Rivera, 71 NY2d 705, 709 [1988]; cf. People v Carnevale, 101AD3d 1375, 1378-1381 [2012]). Counsel pursued several legitimate defensestrategies, including that defendant was not trespassing, that the SUV was successfullyoperated during the pursuit (i.e., without crashing) in a manner inconsistent withintoxication, that no tests established defendant's intoxication, and that Troopers lostsight of the SUV and had an inadequate opportunity to identify its driver. Indeed, therecord supports the conclusion that the verdict was the result of the strong proof againstdefendant rather than any failures on the part of counsel. Defendant has not demonstratedeither that counsel's performance was deficient or that he was prejudiced (see People v Caban, 5 NY3d143, 155 [2005]) and, viewed in its entirety, the record reflects that defendant wasprovided meaningful representation (see People v Benevento, 91 NY2d at 712).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.