Opinion
2014–10967 Ind. No. 383/12
02-20-2019
The PEOPLE, etc., Respondent, v. Amit PATEL, Appellant.
Paul Skip Laisure, New York, N.Y. (Rebecca J. Gannon and Kendra L. Hutchinson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jonathan K. Yi of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Rebecca J. Gannon and Kendra L. Hutchinson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jonathan K. Yi of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
The defendant was convicted of driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(3), based on an incident which occurred on January 26, 2012. The defendant contends that it was error to allow testimony from a police officer regarding the results of a field chemical breath test performed on him at the scene shortly after his vehicle was stopped by the police. However, the prosecution did not elicit any such testimony on direct examination of the officer. The testimony was adduced by defense counsel during cross-examination, in particular, testimony to the effect that the device was the officer's personal property, that it had been calibrated by police personnel, and that the officer had not recorded the results. On redirect, the prosecution asked the officer to explain why he used the device and why he did not record the results. Thus, the defendant has no basis for complaint as to the admission of this testimony since the defendant "opened the door" by cross-examining the officer on matters not touched upon in direct examination, giving the prosecutor the right on redirect to explain, clarify, and fully elicit testimony only partially adduced on cross-examination (see People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324 ; People v. Martin, 100 A.D.3d 930, 930, 953 N.Y.S.2d 893 ; People v. Vines, 51 A.D.3d 827, 859 N.Y.S.2d 661 ; People v. Joyner, 295 A.D.2d 625, 744 N.Y.S.2d 877 ). Moreover, any potential prejudice to the defendant was alleviated by the trial court's limiting instructions to the jury (see People v. Martin, 100 A.D.3d at 930, 953 N.Y.S.2d 893 ; People v. Vines, 51 A.D.3d at 828, 859 N.Y.S.2d 661 ; People v. Hernandez, 11 A.D.3d 479, 782 N.Y.S.2d 776 ). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
SCHEINKMAN, P.J., DILLON, LASALLE and BRATHWAITE NELSON, JJ., concur.