Opinion
KA 03-01007.
February 11, 2004.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered March 12, 2003. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated as a felony and failure to keep right.
SCACCIA LAW FIRM, SYRACUSE (ROBERT A. TRAYLOR OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of driving while intoxicated (DWI) as a class E felony (Vehicle and Traffic Law § 1192; § 1193[1] [c][i]) and failure to keep right (§ 1120[a]). Supreme Court did not err in denying the motion to suppress evidence of defendant's refusal to submit to a chemical test. In reviewing a suppression determination, we accord "great weight to the determination of the hearing court with its particular advantage of having seen and heard the witnesses" ( People v. Williams, 202 A.D.2d 976, 976, lv denied 83 N.Y.2d 916; see People v. Prochilo, 41 N.Y.2d 759, 761). Thus, the findings of the court should not be disturbed unless clearly erroneous or unsupported by the hearing evidence ( see People v. Moore, 295 A.D.2d 969, lv denied 98 N.Y.2d 770; People v. May, 263 A.D.2d 215, 219, lv denied 94 N.Y.2d 950; People v. Little, 259 A.D.2d 1031, lv denied 93 N.Y.2d 926; People v. Hill, 175 A.D.2d 603). The testimony at the suppression hearing supports the court's conclusion that defendant had an adequate opportunity to consult with counsel prior to deciding whether to submit to a chemical test ( see People v. O'Rama, 78 N.Y.2d 270, 280; see also People v. Shaw, 72 N.Y.2d 1032, 1033-1034; People v. Gursey, 22 N.Y.2d 224, 227-229; People v. DePonceau, 275 A.D.2d 994, lv denied 95 N.Y.2d 962). Moreover, under the circumstances, the court was justified in rejecting the contention that defendant's "request to speak [further] to an attorney should not be construed as a refusal to consent to a breathalyzer test" ( People v. Monahan, 295 A.D.2d 626, 627, lv denied 98 N.Y.2d 770, citing Matter of Boyce v. Commissioner of N.Y. State Dept. of Motor Vehicles, 215 A.D.2d 476, 477, People v. Peabody, 206 A.D.2d 754, 755, and Matter of O'Brien v. Melton, 61 A.D.2d 1091).
The court properly denied the request of defendant to allow his father, an attorney and a witness for the defense, to sit at the table with defendant and defense counsel. As the court properly determined, the roles of a witness and an advocate are entirely incompatible ( see Code of Professional Responsibility EC 5-9; see also DR 5-102 [a] [ 22 NYCRR 1200.21 (a)]; see generally People v. Berroa, 99 N.Y.2d 134, 139-140; People v. Amato, 173 A.D.2d 714, 716, lv denied 78 N.Y.2d 919, 961, cert denied 502 U.S. 1058; People v. Rivera, 172 A.D.2d 633, lv denied 77 N.Y.2d 999). Reversal is not required as a result of the court's admission of, and the prosecutor's comment upon, evidence tending to identify defendant as the "Scaccia, Ronald" who previously had been convicted of DWI. Any error arising therefrom was rendered harmless when defendant admitted on cross-examination that he previously had been convicted of DWI. Contrary to the further contention of defendant, he was not deprived of his right to be present during jury selection and the presentation of evidence ( see People v. Maher, 89 N.Y.2d 318, 324-325; People v. Roman, 88 N.Y.2d 18, 27-28, rearg denied 88 N.Y.2d 920; People v. Rodriguez, 85 N.Y.2d 586, 590-591). We have reviewed defendant's remaining contentions and conclude that they are without merit.