Opinion
04-26-2017
The PEOPLE, etc., respondent, v. John F. McMAHON, appellant.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Lauren Tan of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Lauren Tan of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Cohen, J.), rendered August 25, 2015, convicting him of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), failure to stay in a designated lane, failure to stop at a stop sign, and speeding, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Braslow, J.), of that branch of the defendant's omnibus motion which was to suppress evidence of his refusal to submit to a chemical breath test.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the County Court, after a pretrial hearing, properly declined to suppress evidence of his refusal to submit to a chemical breath test. There was sufficient evidence before the hearing court to support the conclusion that the defendant was given clear and unequivocal warnings of the effect of his refusal, and that he persisted in his refusal to submit to the test (see Vehicle and Traffic Law § 1194[2][f] ; People v. Barger, 78 A.D.3d 1191, 913 N.Y.S.2d 266 ; People v. Tetrault, 53 A.D.3d 558, 559, 861 N.Y.S.2d 408 ; People v. Gangale, 249 A.D.2d 413, 671 N.Y.S.2d 148 ).
The defendant's contention that the County Court violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution is without merit. While the Confrontation Clause guarantees an opportunity for effective cross-examination, it does not guarantee a cross-examination "that is effective in whatever way, and to whatever extent, the defense might wish" (Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 ; see People v. Burns, 6 N.Y.3d 793, 795, 811 N.Y.S.2d 297, 844 N.E.2d 751 ; People v. Goodson, 35 A.D.3d 760, 761, 825 N.Y.S.2d 778 ). It is within the discretion of the trial court to limit the scope of cross-examination when questions are irrelevant, concern collateral issues, or risk misleading the jury (see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 ; People v. Legere, 81 A.D.3d 746, 750, 916 N.Y.S.2d 187 ). Here, the court's limitation of the defense cross-examination was a provident exercise of its discretion (see People v. Pavao, 59 N.Y.2d 282, 288–289, 464 N.Y.S.2d 458, 451 N.E.2d 216 ; People v. Sorge, 301 N.Y. 198, 202, 93 N.E.2d 637 ; People v. Carey, 67 A.D.3d 925, 926, 888 N.Y.S.2d 615 ; People v. Griffin, 194 A.D.2d 738, 739, 599 N.Y.S.2d 825 ; People v. Rivers, 109 A.D.2d 758, 761, 486 N.Y.S.2d 73 ).
The defendant's contention that the mandatory surcharges imposed at sentencing should be waived is unpreserved for appellate review (see People v. Ruz, 70 N.Y.2d 942, 943, 524 N.Y.S.2d 668, 519 N.E.2d 614 ; People v. Norelius, 140 A.D.3d 799, 799, 30 N.Y.S.3d 908 ; People v. Francis, 82 A.D.3d 1263, 1263, 919 N.Y.S.2d 394 ), and, in any event, without merit (see CPL 420.35[2] ; People v. Jones, 26 N.Y.3d 730, 732, 27 N.Y.S.3d 431, 47 N.E.3d 710 ; People v. Bones, 52 A.D.3d 522, 523, 860 N.Y.S.2d 124 ; People v. Domin, 13 A.D.3d 391, 392, 785 N.Y.S.2d 531 ; People v. Owens, 10 A.D.3d 619, 781 N.Y.S.2d 454 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).