| People v Ormsby |
| 2014 NY Slip Op 05377 [119 AD3d 1159] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York,Respondent, v Homas R. Ormsby, Appellant. |
Mark Diamond, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered August 2, 2012, upon a verdict convicting defendant of the crime of drivingwhile intoxicated and the traffic infraction of failing to display lighted head lamps.
On July 25, 2011 at approximately 10:15 p.m., defendant was driving withoutilluminated headlights in the Town of Plattsburgh, Clinton County. State TrooperMatthew White pulled him over and observed that defendant had "glossy bloodshoteyes," impaired motor function and slurred speech, and that he smelled of alcohol. Whiteinquired whether defendant had been drinking, and defendant admitted that he had been.Defendant proceeded to fail three field sobriety tests administered by White, and hesubmitted to a preliminary breath screening that tested positive for alcohol. Defendantwas then taken into custody and, at 11:01 p.m., a breathalyzer revealed that he had ablood alcohol content (hereinafter BAC) of .08%.
Defendant was thereafter charged with driving while intoxicated per se, common-lawdriving while intoxicated and failing to display lighted head lamps. Following a jury trial,defendant was convicted of driving while intoxicated per se and the head lamp violation.County Court sentenced defendant to, among other things, a prison term of2
We are unpersuaded by defendant's assertion that his conviction for driving while[*2]intoxicated per se (see Vehicle and TrafficLaw § 1192 [2]) is not supported by legally sufficient evidence. Thebreathalyzer result—taken within two hours of defendant's arrest—coupledwith the failed field sobriety tests and defendant's admission that he had been drinkingalcohol, provide legally sufficient evidence to support the jury's determination thatdefendant violated Vehicle and Traffic Law § 1192 (2) (see People vMertz, 68 NY2d 136, 146 [1986]; People v Menegan, 107 AD3d 1166, 1170 [2013]).
Defendant also claims that the verdict was against the weight of the evidence, bothbecause alcohol soaked up by the denture adhesive that he used would lead to aninaccurately high BAC test result and because variation in the testing process could causea lower BAC being reported as .08%. With regard to the first contention, the recordreflects that the alcohol absorbed in denture adhesive would only persist for about anhour after its consumption, and defendant had not consumed alcohol for at least that longprior to undergoing the breath test. Moreover, the breathalyzer device employed a "slopedetector" that even defendant's expert admitted would have discounted the presence ofany mouth alcohol. With regard to the test result variation, although defendant submittedproof that the device had a .01% margin of error,[FN*]the jury was entitled to considerdefendant's admissions, his failure of three field sobriety tests, slurred speech, blood shoteyes and odor of alcohol, together with the test result itself, in reaching its determinationthat defendant operated a motor vehicle with a BAC of .08% or greater (see People vMenegan, 107 AD3d at 1170; People v Arnold, 2 AD3d 975, 976 [2003], lvdenied 1 NY3d 594 [2004]; People v Knapp, 272 AD2d 637, 639 [2000]).Thus, while a different verdict would not have been unreasonable, when "we view theevidence in a neutral light, accord deference to the jury's assessment of credibility andweigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Murphy, 101 AD3d1177, 1178 [2012] [internal quotation marks and citations omitted]; see generally People vDanielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d 490,495 [1987]), we find that the verdict was in accord with the weight of the evidence.
Defendant also argues that a sufficient foundation was not laid for the admission ofthe breathalyzer result. However, inasmuch as defendant stipulated at trial to theadmission into evidence of various documents regarding the breathalyzer device and thetest itself, his contention is unpreserved for our review, and we perceive no reason totake corrective action in the interest of justice (see CPL 470.05 [2]; 470.15 [6][a]; People v Westcott, 84AD3d 1510, 1513 [2011]; see also People v Kenny, 283 AD2d 950, 951[2001], lv denied 96 NY2d 903 [2001]). Contrary to defendant's furtherargument, his counsel's strategic decision to forgo a challenge to the admissibility of thetest result and instead attack its reliability did not render counsel's assistance ineffective(see People v Gross, 21AD3d 1224, 1225 [2005]; People v Sowizdral, 275 AD2d 473, 476 [2000],lv denied 95 NY2d 969 [2000]; see also People v McRobbie, 97 AD3d 970, 972 [2012],lv denied 20 NY3d 934 [2012]).
Defendant's remaining argument—that the prosecutor engaged in misconductduring his summation—is unavailing. Defendant failed to object to at least one ofthe challenged comments, rendering issues with regard thereto unpreserved (see People v Simmons, 111AD3d 975, 980 [2013], lv denied 22 NY3d 1203 [2014]; People v Carney, 110 AD3d1244, 1245[*3][2013]). Moreover, defendantinaccurately characterizes a majority of the challenged comments, and all but one ofthose comments constituted "fair comment on the evidence and [were] not outside thebounds of fair advocacy" (People v Simmons, 111 AD3d at 980). County Courtsustained defendant's objection to the sole improper remark and promptly instructed thejury to disregard it. Under these circumstances, "defendant's right to a fair trial was notcompromised" (People v Carney, 110 AD3d at 1246; see People v Mitchell, 112AD3d 1071, 1074 [2013], lv denied 22 NY3d 1140 [2014]; People v Hughes, 111 AD3d1170, 1173 [2013]; Peoplev Bravo, 69 AD3d 870, 871 [2010], lv denied 14 NY3d 798 [2010]). Tothe extent not specifically addressed, defendant's remaining contentions have beenconsidered and are without merit.
Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:In rebuttal, the Peopleelicited testimony that the margin of error for an actual sample was only .008%.