| People v Sampson |
| 2020 NY Slip Op 03323 [184 AD3d 1123] |
| June 12, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Richard L. Sampson, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, PLLC, Syracuse(John A. Cirando of counsel), for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered July6, 2016. The judgment convicted defendant upon a jury verdict of driving while intoxicated, aclass D felony, and aggravated unlicensed operation of a motor vehicle in the first degree.
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 ofdriving while intoxicated as a class D felony (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [ii]) and aggravated unlicensed operation of a motorvehicle in the first degree (§ 511 [3] [a] [i]). Defendant contends that County Courterred in determining that the testimony of a State Trooper regarding statements made by the otheroccupants of the vehicle was admissible in evidence under the present sense impression andexcited utterance exceptions to the rule against hearsay. Specifically, when the Trooper firstapproached the window of the vehicle, about 20 seconds after pulling it over, he observeddefendant attempting to settle himself between two occupants of the vehicle who were sitting inthe back seat, and the Trooper heard the other occupants of the vehicle spontaneously state,among other things, that defendant was the driver of the vehicle. Under those circumstances, thecourt properly admitted in evidence the spontaneous statements of the other occupants of thevehicle as excited utterances (see Peoplev Hernandez, 28 NY3d 1056, 1057 [2016]). The court also properly admitted thosestatements as present sense impressions, inasmuch as the statements described an unfoldingsituation and were independently verified by the Trooper's own observations (see People v Eves, 28 AD3d 1231,1231 [4th Dept 2006], lv denied 7 NY3d 755 [2006]; see generally People vVasquez, 88 NY2d 561, 574 [1996]). Defendant also contends that the admission in evidenceof those statements violated his right to confront witnesses against him. We reject that contentionbecause the spontaneous statements of the other occupants were not testimonial in nature (see generally People v Garcia, 25NY3d 77, 85 [2015]).
We reject defendant's contention that his conviction of driving while intoxicated is notsupported by legally sufficient evidence with respect to the element of operation of a motorvehicle, inasmuch as "there is a valid line of reasoning and permissible inferences from which arational jury could have found [that] element[ ] of the crime proved beyond a reasonable doubt"(People v Danielson, 9 NY3d342, 349 [2007] [internal quotation marks omitted]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see id.), we reject defendant's furthercontention that the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]; People v Courteau, 154 AD3d 1317, 1318 [4th Dept 2017], lvdenied 30 NY3d 1104 [2018]).
We also reject defendant's contention that the court improperly aided the prosecution duringan evidentiary hearing by asking additional questions of the testifying State Trooper. The courtdid not take on " 'either the function or appearance of an advocate' " (People v Pham, 178 AD3d 1438,1439 [4th Dept 2019]) and instead merely sought to " 'clarify [the Trooper's] testimonyand to facilitate the progress of the [hearing] and to elicit relevant and important facts' "(id. at 1438).
Contrary to defendant's further contention, defense counsel was not ineffective for failing toobject to the testimony of the Trooper regarding statements made by defendant on the ground thatdefendant's statements were hearsay. Certain of those statements were not admitted for theirtruth, and thus were not hearsay (seegenerally People v Patterson, 28 NY3d 544, 551-552 [2016]), the remaining statementsof defendant were admissible as declarations against defendant's interest (see People v Soto, 26 NY3d 455,457 [2015]), and defense counsel's performance was not rendered ineffective by an allegedfailure to " 'make [an objection] or argument that has little or no chance ofsuccess' " (People v Caban,5 NY3d 143, 152 [2005]). Defendant further contends that defense counsel was ineffectivefor failing to object to the Trooper's testimony when the Trooper read aloud a portion ofdefendant's chemical test refusal form. Defense counsel, however, initially objected to theadmission in evidence of the chemical test refusal form, and defendant failed " 'todemonstrate the absence of strategic or other legitimate explanations' " for defensecounsel's failure to make additional objections to that part of the Trooper's testimony (Peoplev Benevento, 91 NY2d 708, 712-713 [1998]). Lastly, the sentence is not unduly harsh orsevere. Present—Carni, J.P., Lindley, Curran, Troutman and Bannister,JJ.