Opinion
KA 01-00775
October 1, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered January 4, 2001, convicting defendant after a jury trial of felony driving while intoxicated (two counts).
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (ELIZABETH CLARKE OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Supreme Court, Monroe County, for proceedings pursuant to CPL 460.50 (5).
Memorandum:
On appeal from a judgment convicting him of two counts of felony driving while intoxicated (Vehicle and Traffic Law § 1192, [3]; § 1193 [1] [c] [ii]), defendant contends that Supreme Court erred in admitting in evidence at trial a record prepared and maintained by the Office of Emergency Communications in the City of Rochester and a tape recording of 911 telephone calls concerning the incident that resulted in his arrest. Defendant failed to raise his present challenges to the admissibility of that evidence at trial and thus failed to preserve those challenges for our review ( see CPL 470.05; People v. Antongiorgi, 242 A.D.2d 578, lv denied 91 N.Y.2d 832), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Defendant further contends that the court erred in denying his request to charge the jury that it must find that he " voluntarily consumed alcohol" in order to convict him of common-law driving while intoxicated ( People v. Cruz, 48 N.Y.2d 419, 428, appeal dismissed 446 U.S. 901 [emphasis added]; see People v. Gary, 233 A.D.2d 939). We conclude that any error in the court's omission of the word "voluntarily" from the charge is harmless. The evidence of defendant's guilt is overwhelming, and there is no reasonable possibility that defendant otherwise would have been acquitted ( see People v. Woodward, 219 A.D.2d 837, 838, lv denied 87 N.Y.2d 1027). The sentence is not unduly harsh or severe.