Opinion
2012-01-31
The PEOPLE of the State of New York, Respondent, v. Mark J. DAVIS, Defendant–Appellant.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered May 18, 2009. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated, a class D felony, and aggravated unlicensed operation of a motor vehicle in the first degree.D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered May 18, 2009. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated, a class D felony, and aggravated unlicensed operation of a motor vehicle in the first degree.D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3]; § 1193[1][c][ii] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ). We reject defendant's contention that the stop of his vehicle was improper. Rather, we conclude that the stop was lawful inasmuch as the officer observed defendant committing a traffic violation ( see People v. Robinson, 97 N.Y.2d 341, 348–349, 741 N.Y.S.2d 147, 767 N.E.2d 638; People v. White, 27 A.D.3d 1181, 812 N.Y.S.2d 208). Contrary to defendant's further contention, County Court did not abuse its discretion in denying his request for an adjournment ( see People v. Jones, 79 A.D.3d 1773, 1774, 917 N.Y.S.2d 445, lv. denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184; People v. Green, 74 A.D.3d 1899, 1900–1901, 903 N.Y.S.2d 844, lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821; see generally People v. Diggins, 11 N.Y.3d 518, 524, 872 N.Y.S.2d 408, 900 N.E.2d 959). Defendant failed to preserve for our review his contention that the court violated CPL 270.05(2) in conducting the jury selection ( see People v. Hayes, 71 A.D.3d 1477, 897 N.Y.S.2d 370, lv. denied 15 N.Y.3d 751, 906 N.Y.S.2d 823, 933 N.E.2d 222), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).
Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to establish that he was intoxicated by alcohol ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; see also People v. Rawleigh, 89 A.D.3d 1483, 932 N.Y.S.2d 660). In any event, his contention is without merit. Defendant did not contest that he was driving erratically and that he failed the sobriety tests, but he blamed his inability to pass the sobriety tests on the prescription medication he was taking. The arresting officer, however, testified that he smelled alcohol, particularly beer, on defendant's breath. In addition, defendant admitted to him that he drank three beers at a local bar, and defendant refused to take a breathalyzer test, which permitted the jury to infer that he refused to take the test because he knew that the results would be incriminating ( see Vehicle and Traffic Law § 1194[2][f]; People v. Schuh, 4 A.D.3d 751, 771 N.Y.S.2d 785, lv. denied 2 N.Y.3d 806, 781 N.Y.S.2d 305, 814 N.E.2d 477). Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to support the conviction ( see People v. Scroger, 35 A.D.3d 1218, 825 N.Y.S.2d 631, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243; People v. Shank, 26 A.D.3d 812, 813–814, 808 N.Y.S.2d 533; People v. Milo, 300 A.D.2d 680, 681, 753 N.Y.S.2d 90, lv. denied 99 N.Y.2d 630, 760 N.Y.S.2d 112, 790 N.E.2d 286). In addition, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we 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).
Defendant contends that he was denied a fair trial by prosecutorial misconduct on summation. The court sustained defendant's objection to the comment made by the prosecutor on summation and issued a curative instruction. In the absence of any further objection, “the curative instruction[ ] must be deemed to have corrected the error to the defendant's satisfaction” ( People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370; see People v. Cox, 78 A.D.3d 1571, 1571–1572, 910 N.Y.S.2d 812, lv. denied 16 N.Y.3d 742, 917 N.Y.S.2d 624, 942 N.E.2d 1049). We reject the further contention of defendant that he was denied effective assistance of counsel. Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.