Opinion
2019-746 Q CR
03-25-2022
The PEOPLE of the State of New York, Respondent, v. Yenson BARRENO, Appellant.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a prosecutor's information with operating a motor vehicle while under the influence of drugs ( Vehicle and Traffic Law § 1192 [4] ) (count one), driving while ability impaired ( Vehicle and Traffic Law § 1192 [1] ) (count two), and unlicensed operation of a motor vehicle ( Vehicle and Traffic Law § 509 [1] ) (count three).
At a jury trial, the People introduced evidence that, on August 18, 2017, at about 3:30 a.m., the police responded to the scene of an accident, where defendant's vehicle had flipped onto its passenger side, was "completely wrecked" or "totaled," and had severely damaged two other vehicles that were "legally" parked on the street. Defendant had bloodshot and watery eyes, slurred speech and an unsteady gait, and admitted to the arresting officer that he was driving his vehicle and, prior thereto, had smoked marihuana. The arresting officer smelled an odor of marihuana on defendant; another officer and an eyewitness each detected an odor of alcohol emanating from defendant. Defendant refused to submit to a blood test at a hospital and failed the horizontal gaze nystagmus field sobriety test, where he exhibited all of the six clues of intoxication. After the close of proof and summations, the Criminal Court, over defendant's objection, informed the jury that defendant was charged under count one with driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs ( Vehicle and Traffic Law § 1192 [4-a] ), and instructed the jury on that offense. Following the trial, the jury convicted defendant of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, driving while ability impaired and unlicensed operation of a motor vehicle.
CPL 100.45 (2) states that the provisions of CPL 200.70, governing amendment of indictments, apply to prosecutor's informations. CPL 200.70 permits a court to amend an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, provided that the amendment does not change the theory of the prosecution and does not prejudice the defendant on the merits. Furthermore, it is well established that "[a jury] charge which constructively amends an indictment in such a way as to allow a variation in the theory of the prosecution is impermissible" ( People v Buanno , 296 AD2d 600, 601 [2002] [internal quotation marks omitted]; see People v Charles , 61 NY2d 321, 329 [1984] ; People v Kaminski , 58 NY2d 886, 887 [1983] ; People v Tucker , 195 AD3d 1547, 1547 [2021] ).
Here, the factual portion of count one of the accusatory instrument charged defendant with operating a motor vehicle while under the influence of drugs (see Vehicle and Traffic Law § 1192 [4] ), and defendant was arraigned on that charge. The prosecutor expressly indicated at trial that he intended to prove defendant's guilt on that count by introducing evidence that defendant's ability to operate his motor vehicle was impaired by the use of a drug, namely marihuana, alone. However, the Criminal Court's jury instruction on count one—charging the jury on an offense, to wit, violating Vehicle and Traffic Law § 1192 (4-a), that was different from the one set forth in the accusatory instrument—impermissibly amended the accusatory instrument to allege an uncharged offense based on a different theory of misconduct (see People v Maneri , 22 Misc 3d 132[A], 2009 NY Slip Op 50168[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). The variance between the jury instruction and the charge as set forth in the accusatory instrument deprived defendant of fair notice of the charge upon which he was to be tried (see People v Gachelin , 237 AD2d 300, 301 [1997] ; People v Martin , 23 Misc 3d 67, 69-70 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]), and it prejudiced defendant since the jury's guilty verdict on count one could have been based on a finding that defendant's ability to drive was impaired by the combined effects of alcohol and marihuana (see People v Gentles , 171 AD3d 471, 472 [2019] ). Therefore, defendant is entitled to a new trial as to count one (see Kaminski , 58 NY2d at 887 ; Gentles , 171 AD3d at 472 ; Gachelin , 237 AD2d at 302 ; Martin , 23 Misc 3d at 70 ). The fact that defendant has completed his sentence does not warrant dismissal of the charge as a matter of discretion in the interest of justice, in light of the serious nature of the charge (see People v Extale , 18 NY3d 690, 696 [2012] ; Gentles , 171 AD3d at 472 ; People v Todd , 57 Misc 3d 157[A], 2017 NY Slip Op 51656[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). As defendant expressly asks that, in the event dismissal is not granted, this court affirm his conviction rather than vacate it and remand for a new trial, we affirm the conviction of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs ( Vehicle and Traffic Law § 1192 [4-a] ; see e.g. People v Jeudy , 153 AD3d 1203 [2017] ; People v Teron , 139 AD3d 450 [2016] ; People v Hough , 176 AD2d 964 [1991] ; People v Vasquez , 63 Misc 3d 137[A], 2019 NY Slip Op 50524[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Mizrahi , 62 Misc 3d 139[A], 2019 NY Slip Op 50053[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
We note that there is no merit to defendant's contention that defendant's conviction of driving while ability impaired (see Vehicle and Traffic Law § 1192 [1] ) should be vacated and dismissed as a lesser included offense of his conviction of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. "A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense" ( People v Baker , 123 AD3d 1378, 1380 [2014] ; see CPL 1.20 [37] ; People v Repanti , 24 NY3d 706, 710 [2015] ). Contrary to defendant's contention, the offense of driving while ability impaired as charged under count two of the accusatory instrument, which involves impairment by alcohol only, is not a lesser included offense of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, the conviction of which does not necessarily require proof of impairment by alcohol, since it is possible for a defendant to commit the latter offense without also committing the former (see Vehicle and Traffic Law § 1192 [1] ; [4-a]; see also People v Frick , 77 AD3d 677, 679 [2010] ; People v Poole , 41 AD3d 867, 867-868 [2007] ).
The Criminal Court did not err in precluding defendant from recalling the arresting officer to impeach an eyewitness's credibility by contradicting the eyewitness's trial testimony that he told the officer at the scene that he had smelled an odor of alcohol emanating from defendant. While of constitutional dimension (see People v Carroll , 95 NY2d 375, 385 [2000] ), "an accused's right to cross-examine witnesses and present a defense is not absolute" ( People v Williams , 81 NY2d 303, 313 [1993] ), and it is well settled that "trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters" ( People v Hudy , 73 NY2d 40, 56 [1988] ). Even assuming that the arresting officer would have testified upon being recalled, as he testified at a prior hearing, that the witness did not tell him at the scene that the witness had smelled an odor of alcohol, this testimony is not relevant to an issue that the trier of fact must decide but was offered solely to impeach the witness's credibility on a collateral matter (see People v Enriquez , 69 Misc 3d 127[A], 2020 NY Slip Op 51123[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v Gaye , 54 Misc 3d 141[A], 2017 NY Slip Op 50187[U] [App Term, 1st Dept 2017] ; cf. People v Butts , 184 AD3d 660, 663 [2020] ; People v Santiago , 13 AD3d 81, 82 [2004] ). As defendant failed to show that the proposed testimony would impeach the credibility of the prosecution witness on a material issue in this case, we cannot conclude that the court erred in precluding defendant from recalling the arresting officer (cf. People v Perez , 40 AD3d 1131, 1132 [2007] ).
Defendant's contention that various comments made by the prosecutor during summation were improper and deprived him of a fair trial is largely unpreserved for appellate review, as defendant failed to object to most of the challenged remarks (see CPL 470.05 [2] ; People v Romero , 7 NY3d 911, 912 [2006] ; People v Crumell , 61 Misc 3d 154[A], 2018 NY Slip Op 51814[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In any event, the challenged remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to defense counsel's summation, or permissible rhetorical comment (see People v Thomas , 187 AD3d 949, 950 [2020] ; People v Jagota , 178 AD3d 852, 853 [2019] ).
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., WESTON and GOLIA, JJ., concur.