Opinion
No. 2013–842 W CR.
04-09-2015
The PEOPLE of the State of New York, Respondent, v. Fausto BUSTAMANTE, Appellant.
Opinion
Appeal from judgments of the Justice Court of the Village of Mamaroneck, Westchester County (Daniel J. Gallagher, J.), rendered April 4, 2013. The judgments convicted defendant, after a nonjury trial, of driving while intoxicated, speeding, failing to signal before turning, driving in the center lane, moving from a lane unsafely, following another vehicle too closely, driving on the shoulder, stopping on a highway, and driving across hazard markings.
ORDERED that the judgments of conviction are affirmed.
On June 29, 2011, the People charged defendant, in separate simplified traffic informations, with driving while intoxicated (common law) (Vehicle and Traffic Law § 1192[3] ), speeding (Vehicle and Traffic Law § 1180[b] ), failing to signal before turning (Vehicle and Traffic Law § 1163[d] ), driving in the center lane (Vehicle and Traffic Law § 1128[b] ), moving from a lane unsafely (Vehicle and Traffic Law § 1128[a] ), following another vehicle too closely (Vehicle and Traffic Law § 1129[a] ), driving on the shoulder (Vehicle and Traffic Law § 1131 ), possession of an open container of an alcoholic beverage in a motor vehicle (Vehicle and Traffic Law § 1227 [1 ] ), operating a motor vehicle without wearing a safety belt (Vehicle and Traffic Law § 1129–c [3] ), stopping on a highway (Vehicle and Traffic Law § 1201[a] ), driving across hazard markings (Vehicle and Traffic Law § 1128 [d] ), and refusing to take a breath test (Vehicle and Traffic Law § 1194 [1 ] [b] ), after a state trooper had observed defendant committing several moving violations while traveling in excess of 80 miles per hour in a 55 miles per hour speed zone, and exhibiting numerous indicia of intoxication after having been stopped. Defendant refused to submit to roadside physical sobriety tests and to a chemical test of his blood alcohol content. Prior to the nonjury trial, the People withdrew the charge of refusing to take a breath test. Following the trial, defendant was convicted of driving while intoxicated and of all the traffic offenses aside from the offenses of possession of an open container of an alcoholic beverage in a motor vehicle and operating a motor vehicle without wearing a safety belt, of which charges he was acquitted. On appeal, defendant contends that the proof of intoxication was legally insufficient, that the conviction of driving while intoxicated was against the weight of the evidence, and that the representation of his trial counsel was ineffective.
Defendant's claim that the trial evidence was legally insufficient to support his conviction of driving while intoxicated is not preserved for appellate review, as defendant failed to lodge an objection, with the requisite specificity, that the proof failed to establish an element of the offense (CPL 470.05[2] ; People v. Hawkins, 11 NY3d 484, 492 [2008] ; People v. Gray, 86 N.Y.2d 10, 19 [1995] ; see e.g. People v. Nielsen, 259 A.D.2d 501, 501 [1999] ; People v. Kane, 240 A.D.2d 516, 517 [1997] ).
In the exercise of our authority to determine whether a judgment of conviction is supported by the weight of the evidence (CPL 470.15[5] ; People v. Danielson, 9 NY3d 342 [2007] ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (People v. Lane, 7 NY3d 888, 890 [2006] ; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ).
In our view, the state trooper testified credibly as to his observations that, over a distance of a mile and a half, defendant had committed numerous traffic violations, thereby exhibiting a significantly diminished capacity for judgment as to the operation of his vehicle, for example, driving within three feet of other vehicles at speeds exceeding 80 miles per hour, changing lanes at those speeds without signaling, and attempting precipitously to pass other vehicles, on one occasion on the right by using the shoulder. After stopping defendant, the trooper detected the odor of an alcoholic beverage emanating from defendant's vehicle and from his breath, and he discovered an almost-empty can of beer on the passenger side of the driver's seat. Defendant admitted to having consumed an alcoholic beverage, albeit 24 hours before; his eyes were glassy and bloodshot; he stumbled when exiting his vehicle, requiring the trooper to assist him to remain upright and to move off the highway pavement; and he swayed and placed his hand on his vehicle to steady himself. Defendant's refusals to submit to field sobriety tests and to a blood alcohol test are indicia of a consciousness of guilt. According this testimony the appropriate weight, we are of the opinion that the verdict finding defendant guilty of common-law driving while intoxicated was not against the weight of the evidence (see e.g. People v. Carota, 93 AD3d 1072, 1073 [2012] ; People v. Johnson, 70 AD3d 1188, 1189 [2010] ).
Defendant contends that the representation of trial counsel was ineffective in that he failed to object to the prosecutor's leading questions during the direct examination of the state trooper, failed to question whether defendant's vehicle was capable of traveling at the purported speeds, and prevented defendant from exercising his right to testify on his own behalf. However, defendant made no motion pursuant to CPL 440.10 to challenge trial counsel's representation, which is normally necessary for a proper review of matters of fact and strategy that are dehors the record (People v. McNair, 114 AD3d 881 [2014] ). This case does not represent one of those “rare instances” (People v. Medina–Gonzalez, 116 AD3d 519, 520 [2014] ) where the record is sufficient to permit adequate review of the claims without the benefit of the motion (People v. Brown, 45 N.Y.2d 852, 853–854 [1978] ; see People v. Turner, 5 NY3d 476, 481 [2005] ).
“To the extent that the existing record permits review” (People v. Lopez, 2 AD3d 234, 234 [2003] ; see also People v. Troche, 81 AD3d 990, 991 [2011] ), it cannot be said that trial counsel's representation was ineffective. “[L]eading questions are proper when [among other things] they relate to introductory matter[,] tend to carry the witness quickly to matters material to the issue” (Jerome Prince, Richardson on Evidence § 6–227 [Farrell 11th ed 1995]; e.g. People v. Currier, 83 AD3d 1421, 1422 [2011] ), and “assist the witness' memory” (Jerome Prince, Richardson on Evidence § 6–229). In general, the determination of whether to permit leading questions on direct examination “is a matter within the sound discretion of the trial court and will not be disturbed absent a clear demonstration of an abuse of discretion' “ (People v. Martina, 48 AD3d 1271, 1272 [2008], quoting People v. Cuttler, 270 A.D.2d 654, 655 [2000] ). To prevail on an ineffective assistance of counsel claim based on a failure to make objections, a “defendant must show both that the objection[s] omitted by trial counsel [were] ... winning argument[s] ... and that the objection[s were] one[s] that no reasonable defense lawyer, in the context of the trial, could have thought to be not worth raising” (People v. Brown, 17 NY3d 742, 743–744 [2011] [internal quotation marks and citation omitted] ). Here, defendant does not identify which questions were improperly leading, for example, because they were framed to suggest the answer sought (Jerome Prince, Richardson on Evidence § 6–225) or assumed facts not in evidence (id. at § 6–226), and thereby permitted damaging evidence to be introduced. Even if certain of the questions were leading, “in the context of this nonjury trial and in the absence of any showing of prejudice,” there was no error (Mengoni v. Lorelli, 23 Misc.3d 134[A], 2009 N.Y. Slip Op 50791 [U], *1 [App Term, 1st Dept 2009] ).
As for the second claim of error, there is nothing in the record that supports an inference that defendant's vehicle was incapable of being operated at 80–85 miles per hour. Given the unrebutted testimony that it did so on June 29, 2011, there is no reason why trial counsel should have challenged this proof.
As for the third claim, while the right to testify on one's own behalf is so fundamental that a defendant retains the authority to determine for himself whether to do so (People v. Davis, 13 NY3d 17, 30 [2009] ; People v. Hambrick, 96 AD3d 972, 972 [2012] ; People v. Donato, 34 Misc.3d 66, 68 [App Term, 9th & 10th Jud Dists 2012] ), and while it is incumbent upon defense counsel to advise the defendant of that right even if testifying is contrary to counsel's advice (People v. Cosby, 82 AD3d 63, 66 [2011] ), there is nothing in the record to support an inference that defendant was not properly informed of his right to testify or that the decision not to testify was not a matter of strategy to which defendant knowingly, intelligently, and voluntarily acceded. Such matters are properly raised in a CPL 440.10 proceeding, which defendant has not hitherto pursued.
Accordingly, the judgments of conviction are affirmed.
MARANO, P.J., IANNACCI and TOLBERT, JJ., concur.