| People v Thomas |
| 2015 NY Slip Op 06685 [131 AD3d 712] |
| August 26, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Zerlena Thomas, Appellant. |
Matthew W. Brissenden, P.C., Garden City, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Jason R. Richards andJoseph Mogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Sullivan, J.), rendered March 25, 2014, convicting her of aggravated unlicensedoperation of a motor vehicle in the first degree, operating a motor vehicle while under theinfluence of alcohol in violation of Vehicle and Traffic Law § 1192 (2)(two counts), aggravated driving while intoxicated in violation of Vehicle and TrafficLaw § 1192 (2-a) (a), reckless endangerment in the second degree, failureto maintain lane, and operating a motor vehicle without a license, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearingpursuant to a stipulation in lieu of motions (Ayres, J.), of the suppression of physicalevidence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant'smotion pursuant to CPL 200.20 (3) to sever the charges relating to the offenses that shecommitted on February 27, 2011, from those which she committed on March 23, 2012.Contrary to the defendant's contention, she failed to demonstrate that there wassubstantially more proof of one incident, as compared to the other, or that there was asubstantial likelihood that the jury would be unable to consider separately the proof as itrelated to each incident (see CPL 200.20 [3] [a]; People v Smith, 64 AD3d619, 620 [2009]).
However, as the defendant correctly contends, the Supreme Court should havesuppressed two paper receipts that were recovered from her purse, which indicated that,prior to being stopped by police, she had patronized two bars on the night of March 23,2012. The People failed to establish that the receipts were lawfully recovered pursuant toan inventory search, as there was no evidence the search was conducted in accordancewith a standardized, written protocol (see People v Gomez, 13 NY3d 6, 10 [2009]). Nevertheless,the erroneous admission of this evidence was harmless beyond a reasonable doubt(see People v Crimmins, 36 NY2d 230, 237 [1975]). The evidence of guiltregarding the incident of driving while intoxicated on March 23, 2012, included, interalia, proof from three officers who observed that the defendant appeared to be highlyintoxicated, two officers who conducted field sobriety tests—one at approximately4:30 a.m. and another at approximately 6:30 a.m., on which the defendant performedpoorly—and scientific evidence [*2]indicating thatthe defendant had a blood alcohol concentration of .18. Thus, the evidence of guilt wasoverwhelming, and there was no reasonable possibility that the erroneously admittedevidence might have contributed to the defendant's convictions (see id. at237).
The defendant's challenges to certain comments made by the prosecutor insummation are unpreserved for appellate review (see CPL 470.05 [2]; People v Charles, 57 AD3d556 [2008]). In any event, with the exception of one comment, the remarks wereeither fair comment on the evidence or within the bounds of rhetorical comment (seePeople v Ashwal, 39 NY2d 105, 109-110 [1976]). With regard to that one comment,in which the prosecutor misstated the type of vehicle involved in an accident with thedefendant on February 27, 2011, after which the defendant was charged with drivingwhile intoxicated, that misstatement did not deprive the defendant of a fair trial (see People v Bell, 126 AD3d993 [2015]).
The defendant was not deprived of the effective assistance of counsel, as the recordreveals that defense counsel provided meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Dillon, J.P., Chambers, Austin and Sgroi, JJ., concur.