Opinion
259 KA 19-02329
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Terry STEWART, Defendant-Appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It 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, inter alia, two counts of aggravated unlicensed operation of a motor vehicle in the first degree ( Vehicle and Traffic Law § 511 [3] [a] [i], [ii] ) and one count of driving while intoxicated as a misdemeanor (§§ 1192 [3]; 1193 [1] [b] [i]). Contrary to defendant's contention, County Court properly denied his motion to suppress the statement that he made at the police station following his arrest. The record supports the court's determination that the statement was "genuinely spontaneous and was not the product of interrogation or its functional equivalent" ( People v. Tomion , 174 A.D.3d 1495, 1496, 106 N.Y.S.3d 512 [4th Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 752, 138 N.E.3d 481 [2019] ; see People v. Bumpars , 178 A.D.3d 1379, 1380, 116 N.Y.S.3d 838 [4th Dept. 2019] ). The statement was not made in response to a question or statement by the officer. Instead, it was "a blurted out admission, ... which [wa]s in effect forced upon the officer" ( People v. Grimaldi , 52 N.Y.2d 611, 617, 439 N.Y.S.2d 833, 422 N.E.2d 493 [1981] ; see Tomion , 174 A.D.3d at 1496, 106 N.Y.S.3d 512 ).
We reject defendant's further contentions that the court erred in denying his for-cause challenges to certain prospective jurors and in failing sua sponte to exclude an additional prospective juror for cause. Even assuming, arguendo, that the court erred, we conclude that the errors do not require reversal because defendant did not exhaust his peremptory challenges (see People v. Carpenter , 187 A.D.3d 1556, 1557, 132 N.Y.S.3d 207 [4th Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 468, 162 N.E.3d 697 [2020] ; People v. Arguinzoni , 48 A.D.3d 1239, 1241, 852 N.Y.S.2d 546 [4th Dept. 2008], lv denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248 [2008] ). Contrary to defendant's related contention, defendant has " ‘failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge’ " the additional prospective jurors or others ( Carpenter , 187 A.D.3d at 1557, 132 N.Y.S.3d 207 ). Indeed, we conclude that counsel provided defendant with meaningful representation throughout the proceedings (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant next contends that the conviction is based on insufficient evidence that he was operating the vehicle. We reject that contention. The arresting officer testified that, before he pulled the vehicle over, he observed defendant operating the vehicle erratically and that, after he pulled the vehicle over, he observed defendant switching seats with his girlfriend, who was sitting in the passenger seat. We thus conclude that there is a valid line of reasoning and permissible inferences that could lead a rational jury to find the elements of the crimes proved beyond a reasonable doubt (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Although defendant's girlfriend testified at trial that she, not defendant, had been operating the vehicle, viewing the evidence in light of the elements of the crimes as charged to the jury (see id. ), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, the sentence is not unduly harsh or severe.