| People v Keener |
| 2016 NY Slip Op 02679 [138 AD3d 1162] |
| April 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWilliam R. Keener, Appellant. |
George P. Ferro, Albany, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered April 16, 2014, upon a verdict convicting defendant of the crime ofaggravated unlicensed operation of a motor vehicle in the first degree and the trafficinfraction of driving while ability impaired.
During the early morning hours of November 6, 2012, Town of Saugerties PoliceOfficer Bret Rell observed defendant driving a vehicle without tail lights on State Route212 in the Town of Saugerties, Ulster County. Rell activated his emergency lights andsiren and attempted to pull over defendant's vehicle, but defendant continued driving foran additional 3
Defendant was charged with two counts of driving while intoxicated and one counteach of aggravated unlicensed operation of a motor vehicle in the first degree, recklessdriving and unlawful fleeing a police officer in a motor vehicle in the third degree.Following a combined Huntley and Dunaway hearing, County Courtsuppressed all but one of the statements that defendant had made at the police stationbefore he was advised of his Miranda rights and ruled that the results of the fieldsobriety tests and the chemical test were admissible. A jury trial [*2]ensued, at the conclusion of which defendant was foundguilty of aggravated unlicensed operation of a motor vehicle in the first degree anddriving while ability impaired as a lesser included offense of driving while intoxicated.He appeals, and we affirm.
Defendant's challenge to the legal sufficiency of the evidence supporting hisconviction for aggravated unlicensed operation of a motor vehicle in the first degree isunpreserved for our review, as he failed to move for a trial order of dismissal withrespect to that count of the indictment (see People v Gray, 86 NY2d 10, 20-21[1995]; People v Davis, 133AD3d 911, 912 [2015]). To the extent that his pro se submission can be read tochallenge the weight of the evidence supporting such conviction, we find the argument tobe without merit. During his arraignment on a special information filed by the People,defendant admitted that he had been previously convicted of felony driving whileintoxicated, that his license was thereafter suspended based on his failure to submit to achemical test, and that he knew or had reason to know that his license remainedsuspended on the date of the present offenses (see Vehicle and Traffic Law§ 511 [1] [a]; [2] [a] [ii]; [3] [a] [i]). Such admissions established thoseelements of the instant offense and relieved the People of their burden of proving them(see CPL 200.60 [3] [a]; People v Dailey, 260 AD2d 81, 84-85 [1999],lv denied 94 NY2d 821 [1999]; see also People v Cooper, 78 NY2d 476,482-483 [1991]; People vBurgess, 89 AD3d 1100, 1101 [2011]).
Defendant next contends that County Court should have suppressed his oralstatement that he had consumed a "couple of beers" that evening, which was made whilehe was in custody and before he had been advised of his Miranda rights.Inasmuch as that statement was not introduced at trial, the propriety of that aspect of thecourt's suppression ruling is academic (see People v Joseph, 97 AD3d 838, 839 [2012]; People v Kirton, 36 AD3d1011, 1012 [2007], lv denied 8 NY3d 947 [2007]; People v Nevins, 16 AD3d1046, 1048 [2005], lv denied 4 NY3d 889 [2005], cert denied 548US 911 [2006]).
Defendant's assertion that the results of his chemical test should have beensuppressed because his right to counsel was violated is similarly without merit. "While anindividual has the right to consult with an attorney in deciding whether to submit to asobriety test, it is only a qualified right to counsel, not a constitutional one" (People v Curkendall, 12 AD3d710, 714 [2004], lv denied 4 NY3d 743 [2004] [citations omitted]; see People v Smith, 18 NY3d544, 548 [2012]; People vHiggins, 124 AD3d 929, 933 [2015]). To invoke this limited right, the requestmust be specific and unequivocal (see People v Higgins, 124 AD3d at 933-934;People v Vinogradov, 294 AD2d 708, 709 [2002]; People v Hart, 191AD2d 991, 992 [1993], lv denied 81 NY2d 1014 [1993]). Thus, "if a defendantarrested for driving while under the influence of alcohol asks to contact an attorneybefore responding to a request to take a chemical test, the police 'may not, withoutjustification, prevent access between the criminal accused and his [or her] lawyer,available in person or by immediate telephone communication, if such access does notinterfere unduly with the matter at hand' " (People v Smith, 18 NY3d at549, quoting People v Gursey, 22 NY2d 224, 227 [1968]; see People v Washington, 23NY3d 228, 233 [2014]).
Here, Rell administered chemical test warnings to defendant at the police station(see Vehicle and Traffic Law § 1194 [2]) and asked him, on morethan one occasion, whether he would submit to a chemical test. Although initiallyproviding nonresponsive statements to Rell's repeated inquiry, defendant ultimatelyagreed to submit to the test. At that point, Rell advised defendant of his Mirandarights and, when asked if he would talk without an attorney, defendant responded, "No. Iwant my attorney to come here before I do anything further." Several minutes later,defendant asked the officer who was preparing the chemical test whether the officer hadcalled defendant's attorney, apparently under the mistaken belief that the police would doso for [*3]him. The officer responded that he had not, butthat defendant could call his attorney if he would like. When defendant again expressedhis understanding that he did not have to do anything until his attorney was present, thisofficer reiterated that he could arrange for defendant to call the attorney. Defendant,however, never took the officer up on this offer nor made any further mention of hisattorney before submitting to the chemical test a few minutes later. Even assuming thatdefendant's statements could be viewed as " 'a specific request for an attorneyvis-à-vis th[e] decision' " to submit to a chemical test (People vHiggins, 124 AD3d at 933-934, quoting People v Curkendall, 12 AD3d at715), it surely cannot be said that the police "prevent[ed] access between [defendant] andhis lawyer" in connection with such decision (People v Gursey, 22 NY2d at 227;see People v Smith, 18 NY3d at 550). Thus, the results of the chemical test wereadmissible at trial.
Lastly, defendant challenges the manner in which County Court responded to a notefrom the jury. During deliberations, County Court received a note from the jury thatstated: "We, the jury, want it known that one juror[ ] has withheld the fact he served on ajury of a [driving while intoxicated] case where he regrets his decision of not sticking tohis conviction. This is causing him to not deliberate free of bias and with preconceivedideas." The court immediately read the jury note verbatim in the presence of theprosecutor, defense counsel and defendant, thereby fulfilling its "core responsibility"under CPL 310.30 "to give meaningful notice to counsel of the specific content of thejurors' request—in order to ensure counsel's opportunity to frame intelligentsuggestions for the fairest and least prejudicial response—and to provide ameaningful response to the jury" (People v Kisoon, 8 NY3d 129, 134 [2007]; accord People v Silva, 24NY3d 294, 298-299 [2014]; see People v O'Rama, 78 NY2d 270, 277[1991]; People v Lee, 129AD3d 1295, 1299 [2015]). County Court then asked each side for its input and,following a brief colloquy with the court, defense counsel indicated that he would notconsent to the juror's discharge or an inquiry by the court to determine whether the jurorin question was grossly disqualified to serve. Defense counsel and the prosecutorultimately agreed that County Court should reread an Allen charge, which it hadgiven earlier that day, and defense counsel did not object when the response to the notewas communicated to the jury. Thus, defendant's present contention—that CountyCourt should have made a probing inquiry to determine whether a juror wasunqualified—is unpreserved for our review (see People v Lee, 129 AD3dat 1299-1300; People vRivera, 83 AD3d 1370, 1370-1371 [2011], lv denied 17 NY3d 904[2011]; compare People vBrown, 129 AD3d 854, 857-858 [2015]).
Defendant's remaining contentions, to the extent not specifically addressed herein,have been reviewed and found to be lacking in merit.
Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.