| People v Tomlin |
| 2015 NY Slip Op 05802 [130 AD3d 1455] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCharles W. Tomlin, III, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered February 9, 2012. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class E felony, and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of driving while intoxicated as a felony (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [i]), and unlawful possession of marihuana(Penal Law § 221.05). Defendant failed to preserve for our review hischallenge to the alleged legal insufficiency of the evidence with respect to the element ofintoxication because he failed to move for a trial order of dismissal on that ground(see People v Gray, 86 NY2d 10, 19 [1995]). Contrary to defendant's contention,the evidence is legally sufficient to establish that he operated the motor vehicle at thetime and place charged in the indictment (see People v Blake, 5 NY2d 118,119-120 [1958]). Furthermore, viewing the evidence in light of the elements of the crimeand the violation as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that County Court abused its discretion in denyingas untimely his request for a missing witness charge with respect to one of the policeofficers at the scene of defendant's arrest. "The request was not made until both partieshad rested, rather than at the close of the People's proof, when defendant became 'awarethat the witness would not testify' " (People v Williams, 94 AD3d 1555, 1556 [2012]). In anyevent, we note that the witness was no longer a police officer, and was incarcerated afterhaving been prosecuted by the same District Attorney's office. Thus, it cannot be saidthat the witness was "favorably disposed" to the People and was under their control(People v Gonzalez, 68 NY2d 424, 429 [1986]).
Defendant further contends that the court erred in permitting the prosecutor to elicittestimony from a police officer regarding defendant's failure to respond to an unspecifiedinquiry made to him while in the holding cell after his arrest, because such testimony wasinconsistent with the court's pretrial suppression ruling. Contrary to defendant'scontention, the testimony made no reference to defendant's refusal to submit to a breathtest, which was the subject of the pretrial suppression ruling. The testimony concerningdefendant's failure to respond to an unspecified inquiry was properly admitted because itwas relevant to establishing defendant's physical condition, demeanor and generalresponsiveness to questioning (see People v McRobbie, 97 AD3d 970, 971-972 [2012],lv denied 20 NY3d 934 [2012]). By failing to object during the prosecutor'ssummation, defendant failed to preserve for our review his contention that the prosecutormade an improper reference to defendant's breath test refusal during summation and, inany event, he was not thereby denied a fair trial (see People v Johnston, 43 AD3d 1273, 1274-1275 [2007],lv denied 9 NY3d 1007 [2007]). Defendant further contends that the court erredin permitting the prosecutor to play portions of the booking video for the jury becausethe booking video was not included in the People's CPL 710.30 notice. We reject thatcontention, inasmuch as the portions of the booking video played for the jury showeddefendant's physical condition, and they contained questions and answers aboutdefendant's pedigree information as well as spontaneous statements by defendant not inresponse to any questions or interrogation (see People v Higgins, 124 AD3d 929, 932-933[2015]).
We reject defendant's further contention that he was denied effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). We note inparticular that defense counsel was not ineffective in failing to request a charge inaccordance with CPL 60.50 (seePeople v Higgins, 123 AD3d 1143, 1144 [2014]). Defendant's admission withrespect to the operation of the motor vehicle was sufficiently corroborated by otherevidence (see People vTyra, 84 AD3d 1758, 1759 [2011], lv denied 17 NY3d 822 [2011]) and,under these circumstances, defense counsel could have reasonably concluded that such acharge would focus the jury's attention on the strength of the corroborating evidence (see generally People vSmith-Merced, 50 AD3d 259, 259 [2008], lv denied 10 NY3d 939[2008]). Defendant thus "has failed to show the absence of strategic or other legitimateexplanations for defense counsel's alleged shortcoming[ ]" (People v Gilpatrick, 63 AD3d1636, 1637 [2009], lv denied 13 NY3d 835 [2009]). Finally, the sentence isnot unduly harsh or severe. Present—Scudder, P.J., Carni, Sconiers, Valentino andWhalen, JJ.