| People v Walters |
| 2014 NY Slip Op 06115 [120 AD3d 1272] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Chester Walters, Appellant. |
Robert J. Rountry, Freeport, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald Berk and Kevin C. Kingof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Honorof, J.), rendered May 8, 2012, convicting him of driving while intoxicated per sein violation of Vehicle and Traffic Law § 1192 (2), driving whileintoxicated as a felony in violation of Vehicle and Traffic Law § 1192 (3),and failing to stop at a stop sign, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions(Grella, J.), of the suppression, inter alia, of the defendant's statements to lawenforcement officials.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the conviction of failing to stop at a stop sign and the sentenceimposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
The defendant was charged, inter alia, with two counts of failing to stop at a stopsign (Vehicle and Traffic Law § 1172), but was convicted of that offenseunder only one of those counts. The two counts related to two different stop signs, atdifferent locations. The identically worded counts failed to identify which stop sign wasthe subject of which count, and the trial court's instructions to the jury did not link eachcount to a specific stop sign. The defendant contends that, accordingly, his conviction offailing to stop at a stop sign should be vacated. Although the defendant failed to preservethis claim for appellate review, we vacate the conviction of failing to stop at a stop signand the sentence imposed thereon, and dismiss that count of the indictment, in theexercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; Peoplev Aponte, 249 AD2d 553, 555 [1998]; People v Jones, 233 AD2d 342, 342[1996]).
The defendant's current contentions in support of his claim that the Supreme Courtshould have suppressed certain evidence on the ground that the police lacked reasonablesuspicion to stop his vehicle and probable cause to arrest him were not asserted at thesuppression hearing and, thus, are unpreserved for appellate review (see CPL470.05 [2]; People vBowen-Allen, 97 AD3d 598, 599 [2012]; People v Parker, 74 AD3d 1365, 1366 [2010]). They are, inany event, without merit (seePeople v Frazier, 33 AD3d 934, 935 [2006]; People v Robinson, 140AD2d 723, 723 [1988], affd 74 NY2d 773 [1989]).
The defendant's allegations in support of his claim of ineffective assistance ofcounsel [*2]concern matter dehors the record and, thus,may not be reviewed on direct appeal (see People v Crawford, 115 AD3d 672 [2014]).
The defendant's remaining contention is without merit. Mastro, J.P., Rivera, Balkinand Miller, JJ., concur.