| People v Foose |
| 2015 NY Slip Op 07067 [132 AD3d 1236] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRonald Foose, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Meghan E. Leydecker of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered July 8, 2014. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class E felony.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of felony driving while intoxicated (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [i]). Defendant contends that the evidence islegally insufficient to establish that he was the operator of the vehicle because thewitness was unable to identify him in court, and her testimony was incredible orunreliable as a matter of law. We reject that contention (see People v Segatol-Islami,121 AD3d 1575, 1576 [2014], lv denied 24 NY3d 1221 [2015]). Thewitness testified that she was outside at night when she heard a crash and observed that avehicle had collided with a parked vehicle. The witness called 911, and watched thedriver exit the vehicle, wander around the street, and get into arguments with otherpeople. When the police arrived, she pointed out the driver, and a police officer testifiedthat she arrested defendant. The witness's inability to identify defendant in court does notrender her testimony regarding her observations and identification of the driver after theaccident " 'manifestly untrue, physically impossible, contrary to experience, orself-contradictory' " (People v Gaston, 104 AD3d 1206, 1207 [2013], lvdenied 22 NY3d 1156 [2014]). The witness testified that, although she did not seethe driver very well because of the dimly-lit street, she did not think that there was anychance that she pointed out the wrong person to the police inasmuch as she lost track ofthe person for only a second or two, and the person was wearing the same shirt as the onewho exited the vehicle. In addition, the officer testified that defendant was standing nearthe vehicle when she arrived at the scene. The officer further testified that defendant,who was yelling and exhibited signs of intoxication, stated that he had not "been drivingthat long."
Defendant next contends that he was deprived of effective assistance of counselbased on defense counsel's failure to move for a mistrial after certain conduct by aprospective juror during voir dire (see generally People v Baldi, 54 NY2d 137,147 [1981]). Defendant further contends that Supreme Court should have granted amistrial sua sponte. We reject those contentions. When the prospective jurors were askedwhether they could not be fair and impartial on the case, one prospective juror indicatedthat her father had been killed in an alcohol-related accident, and the court excused theprospective juror upon seeing that she was "upset." Defendant's contention that theremaining jury panel was tainted by the prospective juror's response "is purelyspeculative" (People v Clark, 262 AD2d 233, 234 [1999], lv denied 93NY2d 1016 [1999]). Finally, we conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Centra, Peradotto and Carni, JJ.