| People v Gibson |
| 2019 NY Slip Op 04856 [173 AD3d 1785] |
| June 14, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Brodes J. Gibson, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Michael F. Pietruszka, A.J.),rendered May 6, 2016. The judgment convicted defendant, upon a jury verdict, of aggravatedunlicensed operation of a motor vehicle in the first degree (two counts), driving while abilityimpaired, reckless driving, unlawfully fleeing a police officer in a motor vehicle in the thirddegree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, one count of driving while ability impaired (DWAI) (Vehicle and Traffic Law§ 1192 [1]), two counts of aggravated unlicensed operation of a motor vehicle in thefirst degree (§ 511 [3] [a] [i]), and one count of endangering the welfare of a child(Penal Law § 260.10 [1]). Contrary to defendant's contention, viewing the evidencein light of the elements of those crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "The resolution ofcredibility issues by the jury and its determination of the weight to be given to the evidence areaccorded great deference" (People v Wallace, 306 AD2d 802, 802 [4th Dept 2003];see Bleakley, 69 NY2d at 495). Here, the jury was entitled to credit the testimony of thePeople's witnesses regarding defendant's "poor driving, signs of intoxication, [and refusal] toperform field sobriety tests[ ] and . . . chemical test[s]" to determine his bloodalcohol content and regarding the fact that defendant drove his vehicle over a field toward aplayground where children were playing, nearly striking a nine-year-old child (People vGelster, 256 AD2d 1133, 1133 [4th Dept 1998]; see People v Morrison, 48 AD3d 1044, 1045 [4th Dept 2008],lv denied 10 NY3d 867 [2008]; see generally Bleakley, 69 NY2d at 495).Concomitantly, the jury was entitled to "discredit the version of the incident set forth bydefendant" (Morrison, 48 AD3d at 1045; see generally Bleakley, 69 NY2d at495).
Contrary to defendant's further contention, he was not denied effective assistance of counselwhen defense counsel asked him on direct examination if he had a valid driver's license on theday of his arrest. Defendant failed to demonstrate the " 'absence of strategic or otherlegitimate explanations' for counsel's alleged shortcomings" (People v Benevento, 91NY2d 708, 712 [1998]). Indeed, under the Sandoval ruling, the People were allowed toquestion defendant regarding a prior conviction for aggravated unlicensed operation of a motorvehicle. Thus, defense counsel employed sound trial strategy by eliciting defendant's admissionthat he lacked a valid driver's license to diminish the impact of the People's likelycross-examination regarding the prior conviction (see People v Salsbery, 78 AD3d 1624, 1625 [4th Dept 2010], lvdenied 16 NY3d 836 [2011]; People v Van Vleet, 256 AD2d 1181, 1182 [4th Dept1998]). Additionally, even assuming, arguendo, that defense counsel should have objected to theprosecutor's limited violation of the Sandoval ruling while cross-examining defendant,we conclude that any such error did not deprive defendant of his right to a fair trial (seeMorrison, 48 AD3d at 1045; see generally Benevento, 91 NY2d at 713). We havereviewed defendant's remaining allegations of ineffective assistance of counsel and conclude thatthey lack merit.
Lastly, we reject defendant's contention that the court violated CPL 320.10 (2) by acceptinghis stipulation to the conviction of both counts of aggravated unlicensed operation of a motorvehicle in the first degree without obtaining a waiver of his right to a jury trial. In order toestablish that defendant committed one of the counts of aggravated unlicensed operation of amotor vehicle in the first degree, the People would have introduced evidence that he had a priorconviction of DWAI (Vehicle and Traffic Law §§ 1192 [1]; see 511[2] [a] [ii]; 3 [a] [i]), and defendant waived his present contention by " 'freely andvoluntarily enter[ing] into [a] stipulation as part of a strategy to keep the jury from learning of hisprior [DWAI] conviction' " (People v Smith, 306 AD2d 858, 859 [4th Dept2003], lv denied 100 NY2d 587 [2003]; see People v Donhauser, 255 AD2d 933,934 [4th Dept 1998]). Present—Peradotto, J.P., Lindley, DeJoseph, NeMoyer and Curran,JJ.