Opinion
423 KA 17–00564
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Terry L. CHAMPION, Defendant–Appellant.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt 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 driving while ability impaired by drugs ( Vehicle and Traffic Law § 1192[4] ). Upon our independent review of the evidence in light of the elements of the crime as charged to the jury (see People v. Kancharla, 23 N.Y.3d 294, 302–303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see generally People v. Sanchez, 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ), we conclude that an acquittal would have been unreasonable (see People v. President, 59 Misc.3d 134[A], 2018 N.Y. Slip Op. 50488[U], 2018 WL 1735386, *1–2 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018] ; see also People v. Whitehead, 119 A.D.3d 1080, 1081, 990 N.Y.S.2d 301 [3d Dept. 2014], lv denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ). The verdict is thus not against the weight of the evidence (see generally People v. Wheeler, 159 A.D.3d 1138, 1140, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ).
We reject defendant's contention that, during the traffic stop preceding his arrest, the police were not authorized under People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976) to ask him whether he possessed anything dangerous or illegal, and that County Court should have therefore suppressed his incriminatory response to that question. Defendant concedes that police had at least reasonable suspicion that he was driving while intoxicated and/or ability impaired before asking the question that prompted his inculpatory admission and, "given the existence of reasonable suspicion, the [police] necessarily possessed the lesser founded suspicion of criminality, giving them the common-law right to inquire whether defendant had anything illegal" ( People v. Cavanagh, 97 A.D.3d 980, 981, 948 N.Y.S.2d 738 [3d Dept. 2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012] ). Contrary to defendant's further contention, the court properly refused to suppress the results of his field sobriety and chemical blood tests on Miranda grounds given that "Miranda warnings are not required to allow the results of [such] tests into evidence" ( People v. Berg, 92 N.Y.2d 701, 703, 685 N.Y.S.2d 906, 708 N.E.2d 979 [1999] ).Defendant's remaining contention is not preserved for our review, and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).