| People v Keener |
| 2017 NY Slip Op 05875 [152 AD3d 1073] |
[*1]
| 1 The People of the State of New York,Respondent, v William Keener, Appellant. |
George P. Ferro, Albany, for appellant, and appellant pro se.
D. Holley Carnright, 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 February 19, 2015, upon a verdict convicting defendant of the crime of aggravatedunlicensed operation of a motor vehicle in the first degree.
Defendant was charged with driving while intoxicated and aggravated unlicensed operationof a motor vehicle in the first degree following an incident in which he was stopped by a statetrooper who had observed him driving in a dangerous manner on public highways in UlsterCounty. A jury thereafter acquitted defendant of driving while intoxicated, but convicted him ofaggravated unlicensed operation of a motor vehicle in the first degree. County Court denieddefendant's subsequent motion to set aside the verdict and sentenced him to a prison term of1
Defendant contends that County Court's Sandoval ruling, which permitted the Peopleto inquire about his 2011 conviction of criminal possession of a weapon in the fourth degree inthe event that he chose to testify, constituted an abuse of discretion. "Whether and to what extentprior convictions may be used on cross-examination of a defendant is a matter which rests in thesound discretion of the trial court after appropriately balancing the probative worth of theevidence as it relates to the defendant's credibility against the risk of unfair prejudice to thedefendant" (People v Iovino, 149AD3d 1350, 1353 [2017] [internal quotation marks, ellipsis, brackets and citation omitted];see People v Sandoval, 34 NY2d 371, 375 [1974]; People v Bateman, 124 AD3d 983, 985 [2015], lv denied 25NY3d 949 [2015]). Here, County Court [*2]properly determinedthat defendant's criminal possession of a weapon conviction, which was based on his possessionof 11 rifles or shotguns after having previously been convicted of a felony, was probative as todefendant's credibility and willingness to place his own interests above those of society (see People v Portis, 129 AD3d1300, 1303 [2015], lv denied 26 NY3d 1091 [2015]; People v Morris, 101 AD3d 1165,1166 [2012], lv denied 20 NY3d 1102 [2013]). Moreover, to minimize any undueprejudice, County Court limited the scope of the People's inquiry by precluding any mention ofthe underlying facts. Inasmuch as the prior conviction was neither too remote in time nor similarto the charged crimes and County Court appropriately balanced the probative value of suchconviction against the risk of prejudice to defendant, we perceive no abuse of discretion inCounty Court's Sandoval ruling (see People v Cooley, 149 AD3d 1268, 1270-1271 [2017]; People v Mould, 143 AD3d 1186,1188 [2016], lv denied 28 NY3d 1187 [2017]; People v Victor, 139 AD3d 1102, 1110 [2016], lv denied 28NY3d 1076 [2016]).
Defendant's challenge to the legal sufficiency of the evidence supporting his conviction foraggravated unlicensed operation of a motor vehicle in the first degree is unpreserved for appellatereview, as he failed to move to dismiss that count of the indictment at the close of the People'sproof (see People v Hawkins, 11NY3d 484, 492 [2008]; People vKeener, 138 AD3d 1162, 1162-1163 [2016], lv denied 27 NY3d 1134 [2016];People v Davis, 133 AD3d 911,912 [2015]). Were the issue before us, we would find that the evidence was legally sufficient toestablish each element of the crime beyond a reasonable doubt (see Vehicle and TrafficLaw § 511 [1] [a]; [2] [a] [ii]; [3] [a] [i]; see generally People v Danielson, 9 NY3d 342, 349 [2007]).
Defendant also asserts that the jury's verdict convicting him of aggravated unlicensedoperation of a motor vehicle in the first degree is repugnant to his acquittal on the charge ofdriving while intoxicated. Having failed to object on this ground before the jury was discharged,defendant failed to preserve such claim for our review (see People v Booker, 141 AD3d 834, 835-836 [2016], lvdenied 28 NY3d 1026 [2016]; People v Rodwell, 122 AD3d 1065, 1068 [2014], lv denied25 NY3d 1170 [2015]; People vDale, 115 AD3d 1002, 1006 [2014]). In any event, defendant's contention lacks merit.County Court instructed the jury that, to convict defendant of driving while intoxicated, it mustfind that he operated a motor vehicle while "in an intoxicated condition" and that, to convictdefendant of aggravated unlicensed operation of a motor vehicle in the first degree, it must findthat he operated a motor vehicle while "his ability to [do so] was impaired by the consumption ofalcohol." County Court properly distinguished between intoxication and impairment byinstructing the jury that a person is in an intoxicated condition when such person "is incapable toa substantial extent of employing the physical and mental abilities which he [or she] is expectedto possess in order to operate a vehicle as a reasonable and prudent driver" and that, by contrast, aperson is impaired when his or her capability in that respect has been diminished to any extent(see People v Cruz, 48 NY2d 419, 427-428 [1979], appeal dismissed 446 US 901[1980]). Viewing the elements of the crimes as charged to the jury, we would find that the verdictis not repugnant since the jury could have concluded that defendant was impaired by alcohol butwas not intoxicated at the time of the crime (see People v Booker, 141 AD3d at 836; People v Fancher, 116 AD3d1084, 1087-1088 [2014]; People vMercado, 113 AD3d 930, 933-934 [2014], lv denied 23 NY3d 1040[2014]).
Finally, we reject defendant's contention that he was denied the effective assistance ofcounsel. Defendant faults counsel for failing to object when the People and County Courtreferenced the statutory name of aggravated unlicensed operation of a motor vehicle in the firstdegree, claiming that such omission by counsel resulted in the disclosure of prejudicial evidencethat his license was suspended at the time of the crime in violation of CPL 200.60. The purposeof CPL 200.60 is to provide a defendant with the opportunity to stipulate to prior convictions or[*3]conviction-related facts that constitute an element of thecrime charged in order to "avoid the prejudicial impact of having the prior offense proven to thejury" (People v Kinney, 66 AD3d1238, 1239 [2009] [internal quotation marks and citation omitted]; see People vCooper, 78 NY2d 476, 480-483 [1991]). Here, the mere passing reference to the word"unlicensed," while potentially suggesting to the jury that defendant's license was suspended, didnot necessarily imply that defendant had committed a prior driving-related offense, especiallygiven that no evidence of a prior conviction was admitted at trial (see People v Hamm,254 AD2d 535, 536 [1998], lv denied 92 NY2d 982 [1998]; People v Woodrow,212 AD2d 834, 835 [1995], lv denied 85 NY2d 982 [1995]). Thus, counsel was notineffective for failing to object to the reference to the term "unlicensed." Viewed in its entirety,the record reflects that counsel pursued a rational trial strategy, vigorously cross-examined thePeople's witnesses, presented cogent opening and closing statements, secured an acquittal on oneof the charges and otherwise provided defendant with meaningful representation (see People v Henry, 129 AD3d1334, 1337 [2015], lv denied 26 NY3d 930 [2015]; People v Roach, 119 AD3d 1070,1072-1073 [2014], lv denied 24 NY3d 1221 [2015]). Defendant's remaining contentions,to the extent not specifically addressed herein, have been examined and found to be lacking inmerit.
Rose, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.