| People v Krut |
| 2015 NY Slip Op 08439 [133 AD3d 781] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Pavel Krut, Appellant. |
Jeremy Gutman, New York, N.Y., for appellant.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I.Kleinbart and Paul M. Tarr of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Collini, J., at trial; Rienzi, J., at sentence), rendered December 11, 2014, convicting himof assault in the second degree, resisting arrest, and driving while intoxicated in violationof Vehicle and Traffic Law § 1192 (3), upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofdriving while intoxicated, vacating the sentence imposed thereon, and remitting thematter to the Supreme Court, Richmond County, for a new trial as to that count of theindictment; as so modified, the judgment is affirmed.
At about 2:00 a.m. on April 1, 2012, two police officers pulled over a vehicle drivenby the defendant after he disregarded a yield sign, changed lanes without signaling, andstopped at a green light for up to 25 seconds. After observing the defendant's demeanorand detecting the odor of alcohol, one of the officers asked the defendant to blow into aportable breath test device (hereinafter PBT). The officer later testified that, according tothe PBT, the defendant's blood alcohol content (hereinafter BAC) was .128%, which isabove the legal limit of .08%. The officer allowed the defendant to call a relative in orderto secure the vehicle. When that relative arrived at the scene, the defendant exited hisvehicle and announced that he was leaving with his relative. At that point, one of theofficers attempted to handcuff the defendant. However, the defendant resisted arrest and,after a prolonged struggle between the defendant and the two officers at the scene, thedefendant was arrested and charged with assault in the second degree, resisting arrest,and driving while intoxicated in violation of Vehicle and Traffic Law§ 1192 (3) under a theory of common-law intoxication.
Prior to opening statements at the defendant's jury trial, the parties noted thatevidence regarding the results of the PBT administered prior to the defendant's arrest wasnot going to be admitted at trial. The prosecutor did not mention the PBT evidence in hisopening statement. However, in his opening statement, defense counsel, referring to avideo of the incident taken from the patrol car, stated that one of the officersadministered a PBT and then disposed of "the cap" or "whatever" after the defendantblew into it. Based on defense counsel's opening statement, which implied that theofficer disposed of the PBT device, the trial court allowed the People to present evidenceon their case-in-chief that, according to the PBT, the defendant's BAC result was .128%,[*2]higher than the legal limit of .08%. Additionally, oneof the police officers testified that, when he stopped the defendant's vehicle, he couldsmell the odor of alcohol coming from the defendant's breath, the defendant's face wasflushed, his speech was slurred, and his eyes were bloodshot.
The People further elicited testimony that the defendant was uncooperativethroughout the stop, notwithstanding that the officers allowed him to make two phonecalls before he exited his vehicle and to ask his relative to come to their location to pickup the vehicle. Upon exiting the vehicle, the defendant indicated that he was leaving thescene and going home with his relative. When one of the police officers attempted tohandcuff the defendant, a struggle ensued. During the struggle, one of the officerssustained a laceration to the bridge of his nose, which required treatment with "medicalglue," and left a scar that was still visible at the time of trial. The police officer alsosustained a torn rotator cuff in the struggle, and was on sick leave for several weeks. ThePeople submitted a video of the incident taken from the patrol car, which was played forthe jury.
As part of his defense, the defendant took the stand and testified that he did not haveanything to drink that night. The defendant further testified that the police officers didnot tell him that he was being arrested, that he could not imagine why this incidenthappened, and otherwise suggested that he did not understand that he was being arrestedfor an offense. Defense counsel later argued that the defendant did not realize that he wasbeing arrested. During the charge conference, defense counsel argued that the trial courtshould not include any references to the PBT in the jury charge regarding the offense ofdriving while intoxicated; the court denied the application. The jury found the defendantguilty of assault in the second degree, resisting arrest, and driving while intoxicated inviolation of Vehicle and Traffic Law § 1192 (3) under a theory ofcommon-law intoxication. The defendant appeals.
The defendant's challenge to the legal sufficiency of the evidence is only partiallypreserved for appellate review. In any event, viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of each charge beyond areasonable doubt (see People v Tejeda, 78 NY2d 936 [1991]; People v Lundell, 24 AD3d569, 570 [2005]; People v Galvin, 253 AD2d 437, 438 [1998]). Moreover,in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383,410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633, 644-645 [2006]).
The defendant contends that the trial court erred in precluding him from testifyingregarding his state of mind—to the effect that he did not realize that he was beingarrested. "[W]here an actor's state of mind is a material issue, the actor is allowed totestify concerning such issue" (People v Rivera, 101 AD2d 981, 982 [1984],affd 65 NY2d 661 [1985]; see People v McBee, 143 AD2d 773, 774[1988]). Under the circumstances, the defendant's state of mind was relevant to thecharges of assault in the second degree (Penal Law § 120.05 [3]) andresisting arrest (Penal Law § 205.30), and we agree with the defendant thatthe court erred in preventing him from testifying as to his state of mind. However, weconclude that this error was harmless.
Where the error, as here, involves the denial of the defendant's constitutional right topresent a defense, the " 'error can be harmless only if the evidence of guilt,without reference to the error, is overwhelming, and there is no reasonable possibilitythat the error might have contributed to the defendant's conviction, such that it isharmless beyond a reasonable doubt' " (People v Thompson, 111 AD3d 56, 67 [2013], quoting People v Dunbar, 104 AD3d198, 214-215 [2013], affd 24 NY3d 304 [2014]). Here, the evidence of thedefendant's guilt of both assault in the second degree and resisting arrest wasoverwhelming, and there is no reasonable possibility that the error might havecontributed to the defendant's conviction for those offenses. "The police need notspecifically inform a defendant that he is under arrest. His awareness that he is beingarrested may be proven . . . from inferences logically drawn from theattendant facts and circumstances" (People v Galvin, 253 AD2d 437, 438 [1998][citations omitted]). Here, both the police officers and the defendant himself [*3]offered testimony demonstrating that he was pulled over bythe police, instructed to blow into a PBT device, and thereafter directed to get out of hisvehicle. In addition, one of the officers attempted to handcuff the defendant. Moreover,the trial court allowed defense counsel to argue in summation that the defendant did notrealize that he was being arrested. Thus, there is no reasonable possibility that thedefendant would have been acquitted of assault in the second degree and resisting arresthad he been permitted to testify as to his state of mind at the time of his arrest.
The challenges to the prosecutor's summation remarks are unpreserved for appellatereview (see CPL 470.05 [2]). In any event, those challenged remarks were properresponses to arguments made by defense counsel on summation or fair comment on theevidence (see People v Halm, 81 NY2d 819, 821 [1993]; People v Gonzalez, 11 AD3d558, 559 [2004]).
For the foregoing reasons, we affirm the defendant's convictions of assault in thesecond degree and resisting arrest.
However, the trial court committed reversible error with respect to the charge ofdriving while intoxicated, when it admitted the PBT result into evidence and then failedto instruct the jury, among other things, that such evidence may not be used to prove thedefendant's intoxication. Thus, the defendant's conviction of driving while intoxicated,and the sentence imposed thereon, must be vacated.
Generally, the result of a PBT, such as an Alco-sensor, "is not admissible to establishintoxication, as its reliability for this purpose is not generally accepted in the scientificcommunity" (People vKulk, 103 AD3d 1038, 1040 [2013]; see People v Thomas, 70 NY2d823, 825 [1987], affg 121 AD2d 73 [1986]; People v Palencia, 130 AD3d 1072, 1074 [2015];People v MacDonald, 227 AD2d 672, 674 [1996], affd 89 NY2d 908[1996]; see also Vehicle and Traffic Law § 1194 [2]). Contrary tothe trial court's determination, isolated remarks during defense counsel's openingstatement did not open the door for the People to introduce incriminating testimony aboutthe PBT result as part of their case-in-chief, particularly in the absence of appropriatelimiting instructions (seegenerally People v Palencia, 130 AD3d 1072 [2015]; People v Kulk,103 AD3d at 1040; cf. People vMartin, 100 AD3d 930 [2012]). We note that the opening remarks at issue,regarding the officer discarding the PBT "cap," were at least partly offered in support ofthe defense theory that the defendant was not aware that he was the subject of a lawfularrest on the night in question, which theory was offered to undermine the charges ofassault in the second degree and resisting arrest. Further, we find that the Peopleadequately responded to this remark by eliciting the officer's testimony that he disposedof the plastic cap because it was unsanitary, and this was standard procedure.Nonetheless, the People elicited testimony that, according to the PBT, the defendant'sBAC was .128%, significantly higher than the legal limit of .08%, before defensecounsel had an opportunity to raise this issue during cross-examination (cf. People v Martin, 100 AD3d930 [2012]). Under these circumstances, it cannot be said that the defendant openedthe door for the People to adduce evidence of an insufficiently reliable PBT result inorder to prove the defendant's intoxication (see generally People v Kulk, 103AD3d at 1040; see also People v Melendez, 55 NY2d 445, 451-453 [1982]; cf. People v Martin, 100 AD3d930 [2012]; People vSeavy, 16 AD3d 1130, 1131 [2005]).
Thereafter, the trial court did not provide the jury with any limiting instructionsregarding the PBT result (cf.People v Palencia, 130 AD3d 1072 [2015]; People v Martin, 100 AD3d 930 [2012]), but insteaddirected the jury to consider the PBT result as direct proof of the defendant'sintoxication. The court told the jury that the PBT was a "generally accepted instrument indetermining blood alcohol content," and that no scientific expert was necessary. This waserror (see Vehicle and Traffic Law § 1194 [2]; People vPalencia, 130 AD3d at 1076; People v Kulk, 103 AD3d at 1040; People vMacDonald, 227 AD2d at 674). Under the circumstances, including the lack ofevidence of admissible field sobriety tests, we find that this error was not harmlessbeyond a reasonable doubt.
The defendant's remaining contention, that the trial court erred in charging the jurywith respect to his refusal to submit to a blood test at the hospital, is unpreserved forappellate review and, in any event, need not be reached in light of our determination tovacate the conviction of driving while intoxicated in violation of Vehicle and TrafficLaw § 1192 (3). Mastro, J.P., Dickerson, Austin and Maltese, JJ.,concur.