Opinion
No. 2013–1513 N CR.
10-21-2015
The PEOPLE of the State of New York, Respondent, v. Martin KENNEDY, Appellant.
Opinion
Appeal from judgments of the District Court of Nassau County, First District (David Goodsell, J.), rendered July 19, 2013. The judgments convicted defendant, upon jury verdicts, of driving while impaired and speeding, respectively, and imposed a term of incarceration of seven days, a conditional discharge, and a fine of $500 on the conviction of driving while impaired, and a fine of $100 on the conviction of speeding.
ORDERED that the judgment convicting defendant of driving while impaired is modified, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a term of incarceration of seven days; as so modified, the judgment convicting defendant of driving while impaired is affirmed; and it is further,
ORDERED that the judgment convicting defendant of speeding is affirmed.
On March 16, 2012, the People charged defendant, in separate simplified traffic informations, with driving while intoxicated (common law) (Vehicle and Traffic Law § 11923 ) and speeding (Vehicle and Traffic Law § 1180 [d] ), alleging that defendant had operated his motor vehicle at 67 miles per hour in a 45 miles-per-hour speed zone on the Route 25A viaduct in Roslyn, New York, and that, upon stopping defendant's vehicle, a police officer had detected indicia of alcohol beverage consumption. Defendant failed standardized roadside sobriety tests and, following his arrest, refused to submit to a chemical test of his blood alcohol content. At a jury trial, the arresting officer did not testify as to the location and configuration of the applicable speed limit signs, and, during summations, the prosecutor repeatedly referred to defendant's refusal to submit to a blood alcohol test, arguing, in part, that, by his refusal, defendant had prevented incriminating evidence from being available to the prosecution and that a sober person would have submitted to testing. The jury convicted defendant of the lesser included offense of driving while impaired (Vehicle and Traffic Law § 11921 ) and of speeding, and the District Court sentenced defendant to seven days' incarceration, a conditional discharge, and a fine of $500 on the conviction of the former, and to a fine of $100 on the latter. On appeal, defendant argues that the prosecutorial summation error was so prejudicial as to have violated his right to a fair trial, and that the absence of proof of the location and configuration of speed limit signs rendered the People's proof of speeding legally insufficient.
We agree that certain of the prosecutor's summation remarks with respect to the inference permitted upon proof of a refusal to submit to blood alcohol testing (see Vehicle and Traffic Law § 11942[f]; People v. Smith, 18 NY3d 544, 550 2012; People v.. Thomas, 46 N.Y.2d 100, 106 1978 ) were improper (see e.g. People v. Anderson, 89 AD3d 1161, 1162 2011 [the prosecutor improperly suggested on summation that “by refusing to take the test, defendant forewent the opportunity to prove his innocence”]; People v. Handwerker, 12 Misc.3d 19, 20–21 [App Term, 9th & 10th Jud Dists 2006] [the prosecutor's summation remark, “Well, if he's innocent, then why doesn't he want to take the test to prove that?” was burden-shifting and an attempt “to use defendant's refusal for purposes beyond that allowed by the law”] ). However, defendant's general objections thereto (cf. People v. Harris, 98 N.Y.2d 452, 492 n18 2002 ) were, with a single exception, sustained, and, following one of the remarks, the District Court struck the comment and admonished the prosecutor that her comment was burden-shifting. The defense made no request for immediate curative instruction (People v. Santos, 105 AD3d 1064, 1065 2013; People v. White, 5 AD3d 511, 511 2004 ). Although the court denied defendant's subsequent mistrial motion, it “clearly and unequivocally instructed the jury that the burden of proof on all issues remained with the prosecution” (People v. Robinson, 111 AD3d 1358, 1359 2013 ) and, with reference to “the remarks ... made during summation,” that the argument and comments of counsel are not to be considered evidence. Defendant did not object to the content or sufficiency of the charges, nor did he request additional instructions (People v. Jorgensen, 113 AD3d 793, 794 2014; People v. Williams, 38 AD3d 925, 926 2007 ), which permits the inference that the defense was satisfied with the instructions given (People v. Heide, 84 N.Y.2d 943, 944 1994; People v. Leach, 90 AD3d 1072, 1073 2011; People v. Damon, 78 AD3d 860, 861 2010 ). In any event, “considered as a whole” (People v. Fields, 87 N.Y.2d 821, 823 1995 ), the District Court's instructions to the jury sufficed to “dilute[ ] the effect of the improper conduct” (People v. Beyer, 21 AD3d 592, 595 2005 ), as “[j]urors are presumed to follow the legal instructions they are given” (People v. Baker, 14 NY3d 266, 274 2010; see also People v. Guzman, 76 N.Y.2d 1, 7 1990; People v. Tohom, 109 AD3d 253, 268 2013; People v. Mooney, 62 AD3d 725, 726 2009 ). We note that, given the “broad latitude” allowed a prosecutor to comment on evidence during summations (People v. Garcia, 268 A.D.2d 596, 596 2000, citing People v. Galloway, 54 N.Y.2d 396, 399 1981; People v. Saunders, 127 AD3d 1111, 1112 2015; People v. Cartagena, 126 AD3d 913, 915 2015 ), certain of the prosecutor's summation remarks to which objections were sustained, in our view, represented fair comment on the evidence. In any event, as objections to all but one of the challenged remarks were sustained, and effective and unobjected-to curative instructions were given, defendant was not denied a fair trial, especially in light of the fact that the proof of defendant's guilt was substantial.
However, in the exercise of this court's “broad, plenary power to modify a sentence” (People v. Delgado, 80 N.Y.2d 780, 783 1992 ) “even where a trial court has not abused its [sentencing] discretion” (People v. Edwards, 37 AD3d 289, 290 2007 ), upon a review of the record, and as a matter of discretion in the interest of justice, we modify the judgment convicting defendant of driving while impaired by vacating so much of the sentence as imposed a term of seven days' incarceration.
With respect to the remaining conviction, while normally it is necessary for the People, as part of their direct case on a speeding charge, to establish that “the Vehicle and Traffic Law was substantially complied with by the placement of speed signs in such a manner and at such locations as to afford [a] defendant fair notice of the limits of speed” (People v. Lathrop, 3 N.Y.2d 551, 553 1958; e.g. People v. Tortora, 21 Misc.3d 146[A], 2008 N.Y. Slip Op 52564[U] [App Term, 9th & 10th Jud Dists 2008]; People v. Praete, 144 Misc.2d 801, 802 [Bronxville Just Ct 1989], affd 150 Misc.2d 389 App Term, 9th & 10th Jud Dists 1991 ), where, as here, the proof of defendant's speed exceeded the statutory maximum speed limit of 55 miles per hour (Vehicle and Traffic Law § 1180[b] ), “it was unnecessary for the People to establish the posting of ... speed limit signs” (People v. Neal, 24 Misc.3d 130[A], 2009 N.Y. Slip Op 51347[U], *1 [App Term, 9th & 10th Jud Dists 2009]; see also People v. Palu, 47 Misc.3d 35, 37 [App Term, 9th & 10th Jud Dists 2015] ). Although the sufficiency of the proof of speed is not disputed, we note that the police officer's trained visual estimate and his use of a speedometer to confirm that estimate is sufficient, even without proof of the speedometer's calibration (see People v. Dusing, 5 N.Y.2d 126, 128 1959 ).
Accordingly, the judgment convicting defendant of speeding is affirmed and the judgment convicting defendant of driving while impaired is modified by vacating so much of the sentence as imposed a term of seven days' incarceration.
MARANO, P.J., GARGUILO and CONNOLLY, JJ., concur.