| People v Vargas |
| 2014 NY Slip Op 09157 [123 AD3d 1149] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edward J. Vargas, Appellant. |
Edward Vargas, Jr., Moravia, N.Y, named herein as Edward J. Vargas, appellant prose.
David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered April 9, 2012, convicting him of driving while intoxicated inviolation of Vehicle and Traffic Law § 1192 (3), upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
"The credibility determinations of a hearing court following a suppression hearingare accorded great deference on appeal, and will not be disturbed unless clearlyunsupported by the record" (People v Hobson, 111 AD3d 958, 959 [2013]; seePeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Wilson, 96 AD3d 980, 981 [2012]; People v Marinus, 90 AD3d677 [2011]). Here, the hearing court properly found that there was reasonablesuspicion to pull over the defendant's car based on the testimony of a New York Statetrooper that he observed the defendant commit several traffic infractions (see Peoplev Close, 207 AD2d 905, 906 [1994]). Moreover, the hearing court properly foundthat, after the lawful stop, the trooper had probable cause to arrest the defendant fordriving while intoxicated based on his appearance, the smell of alcohol that emanatedfrom him, and his failure of each of the field sobriety tests he performed (see People vBall, 141 AD2d 743, 744-745 [1988]).
Accordingly, the County Court properly permitted the People to introduce, at trial,statements that the defendant made to law enforcement officials that were made inresponse to the trooper's investigatory inquiry, and were not the result of custodialinterrogation, or which were uttered by the defendant spontaneously and voluntarily (see People v Grant, 96 AD3d779, 780 [2012]).
Contrary to the People's contention, the defendant's challenge to the County Court'sSandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]) ispreserved for appellate review, as "[t]he law does not require litigants to make repeatedpointless protests after the court has made its position clear" (People v Mezon, 80NY2d 155, 161 [1992]). However, the County Court's ruling that, if the defendant tookthe stand, the People could ask him about his most recent conviction for driving whileintoxicated, was not an improvident exercise of discretion (see People v Ardila,202 AD2d 514 [1994], affd 85 NY2d 846 [1995]).
[*2] The defendant was not aggrieved by the CountyCourt's denial of his challenge to a juror for cause, since he exercised a peremptorychallenge to excuse that juror and did not exhaust his peremptory challenges before juryselection was completed (see CPL 270.20 [2]; People v Dicks, 287 AD2d517 [2001]).
The defendant's contention that the evidence was not legally sufficient to support hisconviction is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt (see People v Kane, 240AD2d 516, 517 [1997]). Moreover, upon our independent review pursuant to CPL470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vDanielson, 9 NY3d 342, 348 [2007]; People v Shank, 26 AD3d 812, 814 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Mastro, J.P., Chambers, Sgroiand Miller, JJ., concur.