| People v Olson |
| 2015 NY Slip Op 02024 [126 AD3d 1139] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher S. Olson, Appellant. |
Jay L. Wilber, Public Defender, Binghamton (Jonathan Rothermel of counsel), forappellant.
Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County(Cawley, J.), rendered April 27, 2012, upon a verdict convicting defendant of the crimeof driving while intoxicated.
In March 2011, defendant was charged in a single-count indictment with drivingwhile intoxicated. The charges stemmed from an accident that occurred on State Route17 in Broome County in July 2010 when defendant left the traveled portion of the roadand struck a sign—all of which was observed by a state trooper. Following a jurytrial, defendant was convicted of driving while intoxicated as a felony and thereafter wassentenced to a prison term of 1 to 3 years followed by five years of postreleasesupervision. Defendant now appeals, primarily contending that the verdict is against theweight of the evidence.
Insofar as is relevant here, the People were required to prove beyond a reasonabledoubt that defendant "operate[d] a motor vehicle while in an intoxicated condition"(Vehicle and Traffic Law § 1192 [3]). At trial, the trooper in questiontestified that, as he was traveling behind defendant on State Route 17, he observeddefendant's vehicle veer off the road to the right, proceed down a hill, through the grassinto a park, strike a school sign, travel back up the hill to State Route 17 and come to ahalt. Upon pulling up behind defendant's vehicle and approaching the driver's-sidewindow, the trooper detected "a strong odor of alcohol" emanating from the vehicle anddiscovered a "disheveled" defendant displaying "watery" eyes, a "red and flush[ed]"[*2]complexion and "slow slurred speech." When thetrooper asked defendant to step out of the vehicle, he observed that defendant had "poormotor skills" and "poor coordination"—as evidenced by the fact that defendantheld onto the door and hood of his vehicle as he exited. Additionally, in response toquestioning, defendant admitted that he had "consumed a couple of drinks at a friend'shouse" before getting in his car and attempting to drive home. The trooper thenadministered the horizontal gaze nystagmus (hereinafter HGN) test, which defendantfailed. The trooper further testified that defendant declined to perform additional fieldsobriety tests and, after being transported to the State Police barracks and advised of theconsequences of refusing a chemical breath test of his blood alcohol content, refused tosubmit to such test.
Although defendant attributed both his poor motor skills and failure of the HGN testto preexisting back problems and/or injuries that he sustained in the accident, the troopertestified that defendant did not have any visible injuries and declined medical treatment.To the extent that defendant now challenges the trooper's training, experience and actualadministration of the HGN test and/or points to certain claimed inconsistencies in thetrooper's testimony, suffice it to say that these issues were thoroughly vetted during thecourse of defense counsel's extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d1072, 1074 [2012]; Peoplev Silvestri, 34 AD3d 986, 987 [2006]). Thus, while a different verdict may nothave been unreasonable, upon viewing the record as a whole, we find that the jury'sverdict is in accord with the weight of the evidence (see People v Carota, 93AD3d at 1073-1074; People vOwens, 45 AD3d 1058, 1059 [2007]; People v Silvestri, 34 AD3d at987).
Defendant next contends that County Court abused its discretion in addressing thePeople's admitted Rosario violation, i.e., the destruction of the recordings of theradio transmissions made by the trooper during his encounter with defendant, as well asthe apparent loss of certain photographs taken at the accident scene. In this regard, theCourt of Appeals has instructed that the "nonwillful, negligent loss or destruction ofRosario material does not mandate a sanction unless the defendant establishesprejudice. If prejudice is shown, the choice of the proper sanction is left to the sounddiscretion of the trial judge, who may consider the degree of prosecutorial fault" (People v Martinez, 22 NY3d551, 567 [2014] [citations omitted]; see People v Lee, 116 AD3d 493, 496 [2014], lvdenied 23 NY3d 1064 [2014]; People v La Mountain, 249 AD2d 584,585-586 [1998], lv denied 92 NY2d 855 [1998]). Here, nothing in the recordsuggests that the destruction and/or loss of the cited evidence was willful, and we arehard pressed—in light of the extensive cross-examination of the trooper as to hisobservations of defendant on the evening in question and the content of his radiotransmissions—to discern any prejudice to defendant in this regard. That said,even assuming, without deciding, that defendant indeed has established prejudice, wecannot say that County Court abused its discretion in providing apermissive—rather than a mandatory—adverse inference charge to the jury(see People v Davis, 18AD3d 1016, 1018-1019 [2005], lv denied 5 NY3d 805 [2005]).Accordingly, the judgment of conviction is affirmed.
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.