| People v Beaupre |
| 2019 NY Slip Op 02107 [170 AD3d 1031] |
| March 20, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael John Beaupre, Appellant. |
Bruce A. Petito, Poughkeepsie, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T.McLoughlin, J.), rendered May 12, 2017, convicting him of driving while intoxicated in violationof Vehicle and Traffic Law § 1192 (2) and driving while intoxicated in violation ofVehicle and Traffic Law § 1192 (3), upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials, the results ofa field sobriety test, evidence of law enforcement officials' observations of him, and the results ofa breathalyzer test.
Ordered that the judgment is affirmed.
We agree with the County Court's denial of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials, the results of a field sobrietytest, evidence of law enforcement officials' observations of him, and the results of a breathalyzertest, made on the ground that law enforcement officials did not have probable cause to stop hisvehicle and then arrest him for driving while intoxicated. The People met their burden ofestablishing the legality of the initial traffic stop through the testimony of Police Officer JasonFasano that he observed that the taillights on the defendant's vehicle were inoperable as thedefendant drove past him on the road at 9:45 p.m. (see People v Robinson, 97 NY2d 341,347 [2001]; People v Wyatt, 153AD3d 1371, 1372 [2017]; People vVargas, 123 AD3d 1149 [2014]; People v White, 40 AD3d 535 [2007]). Officer Fasano's failure toissue a traffic ticket for the infraction presented a credibility determination for resolution by thehearing court. Contrary to the defendant's contention, there is no basis in the record to disturb thehearing court's determination that Officer Fasano's testimony was credible (see People v Chambers, 18 AD3d571 [2005]). Moreover, as the hearing court found, the testimony of Officer Fasano and ofPolice Officer Gregory Drobot, who arrested the defendant, that the defendant smelled ofalcohol, had glassy and bloodshot eyes, and failed all three of the field sobriety testsadministered, was sufficient to provide probable cause to arrest the defendant for driving whileintoxicated (see People v Johnson,140 AD3d 978 [2016]; People vFarnsworth, 134 AD3d 1302 [2015]; People v Depinto, 124 AD3d 677 [2015]; People v Vargas, 123 AD3d 1149[2014]; People v Tieman, 112 AD3d975 [2013]).
The defendant's contention that his convictions are not supported by legally sufficientevidence is unpreserved for appellate review (see CPL 470.05 [2]). In any event, viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt ofdriving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) anddriving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3),beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt is not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's specific contentions regarding the County Court's Sandoval ruling(see People v Sandoval, 34 NY2d 371 [1974]) are unpreserved for appellate review (see People v Hawkins, 11 NY3d484, 494 [2008]; People v Lee,165 AD3d 838 [2018]). In any event, the court's Sandoval ruling reflects anappropriate balancing of the probative value of the defendant's prior convictions against the riskof unfair prejudice to the defendant (seePeople v Seymour, 77 AD3d 976 [2010]).
The defendant's contention that the County Court erred in permitting Officer Drobot to givetestimony regarding the horizontal gaze nystagmus field sobriety test (hereinafter the HGN test)without evidence of its acceptance in the scientific community is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, there was no error. "Such tests have beenfound to be accepted within the scientific community as a reliable indicator of intoxication and,thus, a court may take judicial notice of the HGN test's acceptability" (People v Tetrault, 53 AD3d 558,559 [2008] [citations omitted]).
The defendant's contention that a certain comment made by the prosecutor in summationimproperly vouched for the credibility of Officer Fasano is unpreserved for appellate review(see CPL 470.05 [2]). In any event, the challenged comment was not improper. Theprosecutor expressed no personal opinion regarding Officer Fasano's veracity, and the remarkwas properly responsive to defense counsel's summation, in which she attacked Officer Fasano'scredibility (see People v Morrow,143 AD3d 919, 921 [2016]; People v Thomas, 186 AD2d 602, 603 [1992]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing 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 NY3d 571,575 n 2 [2011]). As the defendant's claim of ineffective assistance of counsel cannot be resolvedwithout reference 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 vMaxwell, 89 AD3d at 1109).
Finally, contrary to the defendant's contention, the County Court's response to a particularjury note, that the jury should not consider whether the police had probable cause to effect theinitial stop of the defendant's vehicle, was meaningful (see People v Malloy, 55 NY2d296, 301-302 [1982]; People v Arce,70 AD3d 1196 [2010]; see also Steele v United States, 267 US 505, 511 [1925]).Mastro, J.P., Duffy, LaSalle and Iannacci, JJ., concur.