Opinion
2012-12-13
The PEOPLE of the State of New York, Respondent, v. Frank B. HOUCK, Appellant.
Jon Kosich, Greenville, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Jon Kosich, Greenville, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: MERCURE, J.P., ROSE, LAHTINEN, McCARTHY and EGAN JR., JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered March 1, 2011, upon a verdict convicting defendant of the crime of driving while intoxicated.
Defendant was charged by indictment with driving while intoxicated as a felony due to a prior conviction ( seeVehicle and Traffic Law § 1192 [3] ). Following a jury trial, he was convicted of the charge and County Court sentenced him to five years of probation and a fine. Defendant now appeals. We affirm.
Defendant asserts that he was deprived of a fair trial as a result of prosecutorial misconduct and an improper jury charge. Specifically, defendant argues that during cross-examination and summation, the prosecutor impermissibly shifted the burden of proof to defendant and forced him to characterize a prosecution witness as a liar. Further, defendant argues that the jury instructions did not sufficiently address the limited purpose for which evidence of defendant's prior conviction could be used.
Among the questions during cross-examination to which defendant objected at trial, only one is arguably relevant to the issues he raises on appeal. At one point, the prosecutor asked defendant, “And according to you, you could have scientifically proven that [you were not intoxicated] at that time because your blood alcohol content would not have been illegal, correct?” Defendant's objection to this question was overruled, and defendant now argues that this question serves as evidence of the prosecutor's attempts to impermissibly shift the burden of proof to defendant. Even if this question were inappropriate, standing alone it is insufficient to constitute “a flagrant and pervasive pattern of prosecutorial misconduct” so as to warrant a new trial ( People v. Demming, 116 A.D.2d 886, 887, 498 N.Y.S.2d 203 [1986],lv. denied67 N.Y.2d 941, 502 N.Y.S.2d 1033, 494 N.E.2d 118 [1986];see People v. Wright, 88 A.D.3d 1154, 1158, 931 N.Y.S.2d 727 [2011],lv. denied18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296 [2011];People v. White, 79 A.D.3d 1460, 1464–1465, 913 N.Y.S.2d 818 [2010],lvs. denied17 N.Y.3d 791, 803, 929 N.Y.S.2d 99, 111, 952 N.E.2d 1094, 1106 [2011];People v. Jones, 283 A.D.2d 665, 668, 725 N.Y.S.2d 691 [2001],lv. denied96 N.Y.2d 903, 730 N.Y.S.2d 800, 756 N.E.2d 88 [2001] ).
As to comments in the prosecutor's closing argument, the other questions on cross-examination and County Court's charge to the jury, defendant failed to preserve these issues for appeal. Defendant did not object to either the closing statement, questions or jury instructions at the time that they were given. Because he did not protest these issues at a time when the court had an opportunity to correct the alleged errors, they are not preserved for our review ( seeCPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];People v. Head, 90 A.D.3d 1157, 1158, 933 N.Y.S.2d 774 [2011];People v. Clairmont, 75 A.D.3d 920, 923–924, 906 N.Y.S.2d 369 [2010],lv. denied15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010];People v. Keller, 238 A.D.2d 758, 758, 656 N.Y.S.2d 484 [1997] ). As to these unpreserved issues, we decline to exercise our interest of justice jurisdiction.
ORDERED that the judgment is affirmed.