Opinion
1305 KA 15–01996
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Rodney HAWKINS, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, TROUTMAN, AND BANNISTER, 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 following a jury trial of driving while intoxicated (DWI) ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ), and operating a motor vehicle not equipped with a court ordered ignition interlock device (§ 1198[9][d] ).
Defendant contends that County Court violated CPL 320.10 by accepting the stipulation to the convictions of aggravated unlicensed operation of a motor vehicle in the first degree and operating a motor vehicle not equipped with a court ordered ignition interlock device without obtaining the waiver of a jury trial in writing in open court. The record, however, establishes that "defendant freely and voluntarily entered into the stipulation as part of a strategy to keep the jury from learning of his prior DWI conviction and that his license was suspended or revoked at the time of his arrest" ( People v. Tatro, 245 A.D.2d 1040, 1040, 667 N.Y.S.2d 560 (4th Dept. 1997) ), and thus defendant waived that contention (see People v. Gibson, 173 A.D.3d 1785, 1786–1787, 104 N.Y.S.3d 805 (4th Dept. 2019), lv. denied 34 N.Y.3d 931, 109 N.Y.S.3d 753, 133 N.E.3d 459 [2019] ).
Defendant failed to preserve his contention pursuant to CPL 200.60(3) that the court erred by arraigning him on the special information before jury selection began (see People v. Reid, 232 A.D.2d 173, 174, 648 N.Y.S.2d 12 (1st Dept. 1996), lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063 [1997] ; People v. Strange, 194 A.D.2d 474, 474, 599 N.Y.S.2d 282 (1st Dept. 1993), lv denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325 [1993] ; cf. People v. Alston, 169 A.D.3d 1, 4, 92 N.Y.S.3d 18 (1st Dept. 2019), lv granted 33 N.Y.3d 983, 101 N.Y.S.3d 276, 124 N.E.3d 765 [2019] ). Defendant's further contention that he was denied a fair trial by prosecutorial misconduct during jury selection and summation is also unpreserved for our review inasmuch as defendant did not object to any of the alleged improprieties (see People v. Carrasquillo, 142 A.D.3d 1359, 1359, 38 N.Y.S.3d 340 (4th Dept. 2016), lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Contrary to defendant's contention, the $2,000 fine imposed pursuant to his DWI conviction is not unduly harsh or severe.
We have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.