| People v Tieman |
| 2015 NY Slip Op 07300 [132 AD3d 703] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven J. Tieman, Appellant. |
Salvatore C. Adamo, New York, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Andrew R. Kass ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Freehill, J.), rendered December 3, 2012, convicting him of operating a motor vehiclewhile under the influence of alcohol (two counts), upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials. The credibletestimony at the suppression hearing established that a police detective observed thedefendant's vehicle driving in the left lane of a two-lane road against traffic, with itsheadlights pointed toward a wooded area containing public hunting land. This gave thedetective probable cause to believe that the defendant had violated Vehicle and TrafficLaw § 1120 by driving on the wrong side of the roadway and that he hadviolated Environmental Conservation Law § 11-0901 (1) by using theheadlights of his vehicle for the purpose of hunting (see People v Abraham, 111 AD3d 756 [2013]; People v Davis, 103 AD3d810, 811 [2013]; People vGlover, 84 AD3d 977, 978 [2011]). After stopping the defendant's vehicle andinquiring as to whether everything was okay, the detective detected the odor of alcoholon the defendant's breath. The defendant's speech was slurred, his face was flushed, andhis eyes were red and glassy. The defendant admitted that he had consumed alcohol, andfailed four out of five field sobriety tests. Based on all of the above, the detective hadprobable cause to arrest the defendant for a violation of Vehicle and Traffic Law§ 1192 (see Peoplev Shaffer, 95 AD3d 1365, 1366 [2012]; People v Biro, 85 AD3d 1570, 1571 [2011]; People vSchmitt, 262 AD2d 588 [1999]). The detective's initial questioning of the defendantat the traffic stop was investigatory in nature, and once the defendant was in custody, allquestioning was preceded by proper Miranda warnings (see Miranda vArizona, 384 US 436 [1966]; People v Bennett, 70 NY2d 891, 893-894[1987]; People v Gore, 117AD3d 845 [2014]).
The defendant contends that his right to trial by an impartial jury was violated by theseating of a prospective juror who expressed uncertainty as to whether he would draw anegative inference if the defendant chose not to testify. This contention is unpreservedfor appellate review, since the defendant failed to challenge the prospective juror forcause in the trial court (seePeople v Simmons, 119 AD3d 1343 [2014]; People v Scott, 197 AD2d644, 645 [1993]). In any event, an erroneous denial of a challenge for cause by adefendant "does not constitute reversible error unless the defendant has exhausted hisperemptory challenges at the time or, if he has not, he peremptorily challenges such [*2]prospective juror and his peremptory challenges areexhausted before the selection of the jury is complete" (CPL 270.20 [2]; see People vLynch, 95 NY2d 243, 248 [2000]; People v Williams, 97 AD3d 769, 770 [2012]). Here, thedefendant did not use a peremptory challenge on the prospective juror, and did notexhaust his peremptory challenges. Any claim as to that juror is therefore deemed waived(see People v Jackson, 59AD3d 736 [2009]; People v Pagan, 191 AD2d 651 [1993]; People vSmith, 111 AD2d 883 [1985]).
The defendant's claim of ineffective assistance of counsel is based, in part, on matterappearing on the record and, in part, on matter outside the record and, thus, constitutes a"mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 575 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852[1978]). Since the defendant's claim of ineffective assistance cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805, 806 [2012];People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).
The defendant failed to show that he suffered substantial prejudice from the People'sdelay in disclosing certain Rosario material (see People v Banch, 80NY2d 610, 617 [1992]; People v Rosario, 9 NY2d 286 [1961]; People v Aviles, 119 AD3d871, 871-872 [2014]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.