Opinion
No. 2018-1098 N CR
05-23-2022
The People of the State of New York, Respondent, v. William Moore, Appellant.
Andrew E. MacAskill, for appellant. Nassau County District Attorney (Jared A. Chester and Benjamin A. Kussman of counsel), for respondent.
Unpublished Opinion
Andrew E. MacAskill, for appellant.
Nassau County District Attorney (Jared A. Chester and Benjamin A. Kussman of counsel), for respondent.
PRESENT:: TIMOTHY S. DRISCOLL, J.P., HELEN VOUTSINAS, BARRY E. WARHIT, JJ
Appeal from judgments of the District Court of Nassau County, First District (Anthony W. Paradiso, J.), rendered April 16, 2018. The judgments convicted defendant, upon jury verdicts, of, respectively, aggravated unlicensed operation of a motor vehicle in the third degree, avoiding a traffic control device, and failing to signal, and imposed sentences.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged in separate simplified traffic informations with, respectively, common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]), avoiding a traffic control device (Vehicle and Traffic Law § 1225) and failing to signal (Vehicle and Traffic Law § 1163 [d]). Following a jury trial, the jury returned verdicts acquitting defendant of common-law driving while intoxicated and the added, lesser included charge of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), and convicting him of aggravated unlicensed operation of a motor vehicle in the third degree, avoiding a traffic control device and failing to signal.
Defendant appeals from the judgments of conviction. Upon finding that prior counsel's Anders brief (see Anders v California, 386 U.S. 738 [1967]) was inadequate, this court held the appeal in abeyance and new counsel was assigned to prosecute the appeal (73 Misc.3d 133[A], 2021 NY Slip Op 51018[U]). New counsel has submitted a brief arguing that the court improperly admitted a stipulation of the parties into evidence and that defendant's convictions were against the weight of the evidence.
According to the trial testimony of the arresting officer, he and his partner followed defendant, who was driving a Honda Civic, in their patrol vehicle while observing him make unsignaled left turns both into and out of a gas station, without stopping, to avoid a red light at an intersection, as well as a third unsignaled left turn at another intersection shortly thereafter. After effecting a traffic stop, the officers, using a computer link in their patrol vehicle to Department of Motor Vehicles (DMV) records, determined that defendant's license "was suspended three times" and "[h]e's not allowed to drive in the State of New York." Furthermore, during the trial, the prosecutor and defense counsel submitted a joint stipulation that defendant had been driving "while knowing or having reason to know that his license or privilege to operate such motor vehicle in New York State was suspended."
Defendant now complains, for the first time on appeal, that the court should have queried him before admitting this stipulation into evidence. This complaint is unpreserved, and we decline to address it as a matter of discretion in the interest of justice. Alternatively, this argument is without merit, as defendant never demonstrated to the District Court any misunderstanding about, or unwillingness to enter into, the stipulation (see People v Mills, 103 A.D.2d 379, 380 [1984]). Moreover, defense counsel's apparent strategy-which worked-of focusing on getting an acquittal on the top charge of driving while intoxicated, and not contesting the aggravated unlicensed operation charge, was rational and well-calculated in light of the reasonable defense conclusion, expressed in the stipulation, that a conviction of the latter charge would have been the inexorable result upon the jurors' collective review of defendant's certified driver abstract. Consequently, there is no legal or factual basis to disturb the verdict of guilty of aggravated unlicensed operation of a motor vehicle in the third degree.
Defendant's guilt of the charges of avoiding a traffic control device and failing to signal was demonstrated by legally sufficient evidence, and the verdicts convicting him of these charges were not against the weight of the trial evidence. While there were some inconsistencies between the arresting officer's trial testimony and his testimony more than 1½ years earlier during a DMV hearing concerning the same events (e.g., the number of unsignaled left turns defendant made and how many people were in the Honda Civic with defendant), we accord great deference to "the jury's determinations..., including its evaluation of inconsistencies in testimony" (People v Thomas, 102 A.D.3d 561, 561 [2013]). Thus, although an acquittal of the convicted charges, save the charge of aggravated unlicensed operation of a motor vehicle in the third degree, would not have been unreasonable (see People v Danielson, 9 N.Y.3d 342, 348 [2007] ["weight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable"]), based upon the totality and quality of the evidence presented at trial, we decline to disturb the jury's determinations here.
Accordingly, the judgments of conviction are affirmed.
DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur.