| People v Wongsam |
| 2013 NY Slip Op 02603 [105 AD3d 980] |
| April 17, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Orrett A. Wongsam, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (J.Doyle, J.), rendered July 19, 2010, convicting him of operating a motor vehicle whileunder the influence of alcohol as a felony, aggravated unlicensed operation of a motorvehicle in the first degree (two counts), and speeding, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant contends that he was deprived of the protection of CPL 200.60 whenthe prosecution employed a prior conviction to elevate the level of a charged crime.However, the defendant waived this contention by entering into a stipulation pursuant towhich he agreed to place the subject prior conviction and conviction-related facts beforethe jury (see People vCleophus, 81 AD3d 844, 846 [2011]; People v Ward, 57 AD3d 582, 583 [2008]).
The record as a whole demonstrates that the defendant received meaningfulrepresentation (see People vStultz, 2 NY3d 277, 287 [2004]; People v Benevento, 91 NY2d 708[1998]; People v Rivera, 71 NY2d 705, 709 [1988]; cf. People vCleophus, 81 AD3d at 846).
The defendant failed to preserve for appellate review his contention that he wasdeprived of a fair trial because the prosecutor's summation comments regarding hisfailure to call certain witnesses to corroborate his testimony impermissibly shifted theburden of proof (see CPL [*2]470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]). In any event, the defendant's contention is without merit, sincewhere, as here, a defendant elects to present evidence of his innocence, his failure to callcertain witnesses in support of his defense may be brought to the jury's attention by theprosecutor on summation, provided that the prosecutor's comments are, as here, not madein bad faith and are merely efforts to persuade the jury to draw inferences supporting thePeople's position (see People v Tankleff, 84 NY2d 992, 994-995 [1994]; People v Floyd, 97 AD3d837, 837-838 [2012]; People v Gross, 78 AD3d 1196, 1197 [2010]).
Contrary to the defendant's contention, the County Court properly adhered to itsoriginal Sandoval ruling (see People v Sandoval, 34 NY2d 371 [1974])in allowing the prosecutor to question the defendant as to the name and classification ofhis prior conviction for criminal possession of a weapon. Moreover, the court properlyallowed the prosecutor to question the defendant about a prior chemical test refusal thathad already been placed before the jury by stipulation. However, we agree with thedefendant that the court improperly modified its Sandoval ruling in allowing theprosecutor to cross-examine him about a prior conviction for driving while abilityimpaired and his refusal to submit to a chemical test in that case. Contrary to the court'sdetermination, the defendant did not testify about this prior conviction or to facts inconflict with the precluded evidence, and therefore did not "open the door" to theotherwise precluded evidence (see People v Seabrooks, 82 AD3d 1130, 1131 [2011]; People v Perez, 40 AD3d1131, 1132 [2007]; cf. People v Fardan, 82 NY2d 638, 646 [1993]; People v Gross, 88 AD3d905, 905 [2011]). Nevertheless, the error was harmless, as there was overwhelmingevidence of the defendant's guilt and no significant probability that the error contributedto the defendant's convictions (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Seabrooks, 82 AD3d at 1131).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Austin, Cohen and Miller, JJ., concur.