Opinion
2013-02-6
The PEOPLE, etc., respondent, v. Rafael ROSARIO, appellant.
Warren S. Hecht, Forest Hills, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.
Warren S. Hecht, Forest Hills, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered March 11, 2010, convicting him of aggravated vehicular assault (three counts), assault in the second degree (two counts), criminal mischief in the fourth degree, and leaving the scene of an accident without reporting, upon a jury verdict, and sentencing him to indeterminate terms of imprisonment of 5 to 15 years on each count of aggravated vehicular assault, determinate terms of imprisonment of 5 years on each count of assault in the second degree, to be followed by a two-year period of postrelease supervision on each of those convictions, and a definite term of incarceration of 1 year on each of the remaining convictions, all to run concurrently.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed upon the defendant's convictions on each count of aggravated vehicular assault from an indeterminate term of imprisonment of 5 to 15 years to an indeterminate term of imprisonment of 3 to 9 years; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly admitted at trial evidence of his refusal to submit to a blood test, since there was sufficient evidence before the court to support the conclusion that the defendant was three times given clear and unequivocal warnings of the effect of his refusal to submit to the blood test, and that he persisted in his refusal to do so ( see Vehicle and Traffic Law § 1194[2]; People v. Barger, 78 A.D.3d 1191, 1192, 913 N.Y.S.2d 266;People v. Tetrault, 53 A.D.3d 558, 559, 861 N.Y.S.2d 408;cf. People v. D'Angelo, 244 A.D.2d 788, 665 N.Y.S.2d 713;Matter of Prince v. Department of Motor Vehicles, 36 Misc.3d 314, 321–322, 945 N.Y.S.2d 843).
Contrary to the People's contention, the defendant preserved for appellate review his contention that the County Court's jury charge failed to adequately instruct the jury as to how it may consider the evidence of his refusal to submit to a blood test ( seeCPL 470.05[2]; cf. People v. O'Hara, 96 N.Y.2d 378, 383–384, 729 N.Y.S.2d 396, 754 N.E.2d 155;People v. Williams, 38 A.D.3d 925, 833 N.Y.S.2d 160). However, the defendant's contention is without merit because the charge, taken as a whole, was a correct statement of the law and it adequately instructed the jury about the manner in which it may consider his refusal to submit to a blood test as evidence of his consciousness of guilt ( see People v. Smith, 18 N.Y.3d 544, 550–551, 942 N.Y.S.2d 426, 965 N.E.2d 928;People v. Davis, 8 Misc.3d 158, 163–169, 797 N.Y.S.2d 258;see also People v. Drake, 7 N.Y.3d 28, 34, 817 N.Y.S.2d 583, 850 N.E.2d 630;People v. Warren, 76 N.Y.2d 773, 775, 559 N.Y.S.2d 954, 559 N.E.2d 648;People v. Bogan, 78 A.D.3d 855, 856, 911 N.Y.S.2d 166;cf. People v. MacDonald, 89 N.Y.2d 908, 910, 653 N.Y.S.2d 267, 675 N.E.2d 1219).
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt as to each count of aggravated vehicular assault beyond a reasonable doubt ( seePenal Law § 120.04–a[4] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Under the circumstances of this case, the sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.