| People v Torres |
| 2015 NY Slip Op 01324 [125 AD3d 1481] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vThomas J. Torres, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered August 7, 2012. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class D felony, and aggravated driving while intoxicated, perse, a class D felony.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofdriving while intoxicated, a class D felony (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [ii]), and aggravated driving whileintoxicated, per se, a class D felony (§§ 1192 [2-a] [a]; 1193 [1] [c][ii]), defendant contends that the verdict is contrary to the weight of the evidence withrespect to the issues of intoxication, the breathalyzer test results, and the defense ofjustification. Inasmuch as defendant admitted during his trial testimony that he wasintoxicated when he operated the vehicle, we reject his contention that the juryimproperly weighed the evidence of intoxication. Defendant's contention with respect tothe breathalyzer test results is without merit (see § 1194 [4] [c]; People v Kulk, 103 AD3d1038, 1041 [2013], lv denied 22 NY3d 956 [2013]; see generally People v Boscic,15 NY3d 494, 498-500 [2010]). Consequently, the only remaining issue with respectto the weight of the evidence is defendant's contention that the jury did not properlyweigh the evidence with respect to the defense of justification based on an emergency,also known as the "choice of evils" defense (see e.g. People v Craig, 78 NY2d616, 620 n 1 [1991]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that,under the circumstances of this case, the jury failed to give the evidence the weight itshould be accorded in considering that defense (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
The defense applies where, inter alia, the defendant's conduct "is necessary as anemergency measure to avoid an imminent public or private injury which is about tooccur" (Penal Law § 35.05 [2]). "[T]he requirement that the impendinginjury must be 'imminent' and 'about to occur' denotes an impending harm whichconstitutes a present, immediate threat—i.e., a danger that is actual and at hand,not one that is speculative, abstract or remote" (Craig, 78 NY2d at 624). "It wasfor the jury to determine whether the threat of harm that the defendant perceived hadceased to exist and if so whether defendant had sufficient time to react prior to" engagingin the illegal conduct (People v Maher, 79 NY2d 978, 982 [1992]). Evenassuming, arguendo, that defendant was initially justified within the meaning of PenalLaw § 35.05 (2) in driving while intoxicated to escape an imminent threatof physical injury, we cannot conclude that the jury improperly weighed the evidence indetermining that defendant was not justified in continuing to operate the vehicle forseveral miles, with no evidence that he was being pursued.
We reject defendant's contention that County Court erred in denying his motion tosuppress all evidence arising from the allegedly improper stop of his vehicle. "The policehad reasonable suspicion to stop defendant['s] vehicle based on the contents of a 911 callfrom [three [*2]identified citizens] and the confirmatoryobservations of the police. [Inasmuch as the evidence in the record establishes that theinformation provided by those citizens] was reliable under the totality of thecircumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability ofhearsay tips in this particular context and contained sufficient information aboutdefendant['s] unlawful possession of a weapon to create reasonable suspicion, thelawfulness of the stop of defendant['s] vehicle is" established (People v Argyris,24 NY3d 1138, 1140-1141 [2014]).
We also reject defendant's contention that he was denied effective assistance ofcounsel. It is well settled that, "[t]o prevail on a claim of ineffective assistance ofcounsel, it is incumbent on defendant to demonstrate the absence of strategic or otherlegitimate explanations" for defense counsel's allegedly deficient conduct (People vRivera, 71 NY2d 705, 709 [1988]; see People v Benevento, 91 NY2d 708,712 [1998]), and defendant failed to meet that burden. Viewing the evidence, the law andthe circumstances of this case, in totality and as of the time of the representation, weconclude that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Defendant further contends that the court committed reversible error by failing toprovide a meaningful response to a jury note asking for the legal definition of anadjournment in contemplation of dismissal. We reject the People's assertion thatdefendant's contention is not preserved for our review, inasmuch as the record establishesthat "the court 'was aware of, and expressly decided, the [issue] raised onappeal' " (People vCollins, 106 AD3d 1544, 1546 [2013], lv denied 21 NY3d 1072 [2013],quoting People v Hawkins,11 NY3d 484, 493 [2008]). We conclude, however, that defendant's contention iswithout merit. The court appropriately answered the jury's question by explaining thatthere was no evidence in the record concerning such a disposition (see generallyPeople v Esquilin, 236 AD2d 245, 246-247 [1997], affd 91 NY2d 902[1998]; People v Davis, 223 AD2d 376, 377 [1996], lv denied 88 NY2d846 [1996]). Thus, "whatever questions are raised as to the phrasing of the court'sresponse to the jury's questions, the court's answer provided the requisite 'meaningfulresponse' " (People vSimmons, 66 AD3d 292, 295 [2009], affd 15 NY3d 728 [2010]).
Defendant further contends that he was deprived of a fair trial by various instances ofprosecutorial misconduct. Although defendant contends that the prosecutor engaged inmisconduct by introducing evidence of defendant's invocation of his right to remainsilent, we note that the prosecutor in fact did not introduce such evidence; rather, thetestimony elicited by the prosecutor established that defendant merely responded to aquestion about his rights by stating that he would speak to the officers when heconsidered it appropriate to do so. "By refusing to respond to certain questions but whilecontinuing to respond to others, defendant [did not] invoke his right to remain silent"(People v Gibbs, 286 AD2d 865, 867 [2001], lv denied 97 NY2d 704[2002]; see People vFlowers, 122 AD3d 1396, 1396-1397 [2014]; People v Jandreau, 277AD2d 998, 998 [2000], lv denied 96 NY2d 784 [2001]) and, "thus, theprosecutor did not err in eliciting testimony on that issue" (Gibbs, 286 AD2d at867).
Defendant failed to object to the majority of the remaining instances of allegedprosecutorial misconduct that he raises on appeal, and thus failed to preserve hiscontention for our review with respect to those instances (see People v Ward, 107 AD3d1605, 1606 [2013], lv denied 21 NY3d 1078 [2013]). In any event, withrespect to the remaining alleged instances of misconduct, both preserved andunpreserved, we conclude that "[a]ny improprieties were not so pervasive or egregious asto deprive defendant of a fair trial" (People v Jones, 114 AD3d 1239, 1241 [2014], lvdenied 23 NY3d 1038, 1039 [2014] [internal quotation marks omitted]; see People v Smith, 109 AD3d1150, 1151-1152 [2013], lv denied 22 NY3d 1090 [2014]).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contention and conclude that it is without merit. Present—Smith, J.P.,Carni, Lindley and Valentino, JJ.