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Smith v. Savage

February 5, 2010


The opinion of the court was delivered by: Michael A. Telesca United States District Judge


I. Introduction

Pro se petitioner Victor D. Smith ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered March 25, 2004, in New York State, County Court, Ontario County, convicting him of Driving While Intoxicated as a Felony (N.Y. Vehicle and Traffic Law ("VTL") §§ 1192[3], 1193[1][c][ii]), Criminal Mischief in the Fourth Degree (N.Y. Penal Law ("Penal Law") § 145.00[3]), and Leaving the Scene of an Incident Without Reporting (VTL § 600[1]).

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

On May 8, 2003, at approximately 8:30 p.m., Petitioner stopped at a bar near Clifton Springs, New York after work. Petitioner testified that he ordered chicken wings to go, drank two draft beers, and a shot of Southern Comfort whiskey. After approximately one hour at the bar, Petitioner entered his vehicle and proceeded to drive west on Route 96 towards Victor, New York. Petitioner testified that he was eating chicken wings while he was driving his vehicle. Trial Transcript [T.T.] 249-253.

Chris Pratt ("Pratt") was driving west from Clifton Springs to Fairport on Route 96 around 9:30 p.m. that same night. Pratt came upon Petitioner's vehicle as it was traveling west on Route 96, and observed Petitioner's vehicle traveling at a slow rate of speed and swerving to the left and to the right continuously. After a short time, Pratt became concerned, called 911, and trailed Petitioner for several miles while on the phone with a 911 dispatcher. Pratt read Petitioner's license plate number to the 911 dispatcher, and followed Petitioner's vehicle for several more miles until he lost sight of it. T.T. 79-82.

Meanwhile, Megan Tobin ("Tobin") and her friend Abigail Koehler ("Koehler") were traveling east on Route 96 at approximately 9:55 p.m. that same night. As Tobin's vehicle entered the intersection of Route 96 and County Road 28, Petitioner, without signaling, suddenly pulled in front of Tobin's vehicle, making a hard left hand turn into the intersection. Tobin swerved left in an unsuccessful attempt to avoid hitting Petitioner's vehicle. The front end of Tobin's vehicle hit the rear passenger side of Petitioner's vehicle, totaling Tobin's vehicle. Neither of the women were injured. After the crash, Petitioner sped away south on County Road 28, leaving Tobin and Koehler stranded by the side of the road. T.T. 41-47.

Deputy Holland ("Holland") received a transmission from dispatch at approximately 9:58 p.m. that same night that there was a possible sick or intoxicated driver on Route 96, and was given the plate number that Pratt had given the 911 operator earlier that evening. The plate number was later found to match the plate on Petitioner's vehicle. While on Route 96, Holland came upon Tobin's wrecked vehicle, stopped to ensure that Tobin and Koehler were uninjured, and then pursued Petitioner south on County Road 28. Approximately five miles down the road, Holland came upon Petitioner's vehicle and observed Petitioner driving the vehicle with its bumper dragging, swerving back and forth across the center line. T.T. 102-106.

Holland pulled Petitioner over and walked up to the vehicle. Petitioner indicated to Holland that he left the scene of the accident because he was scared. Holland detected an odor of alcohol on Petitioner's breath, and observed that Petitioner's eyes were glassy and that his speech was slurred. When Holland asked him if he had been drinking, Petitioner stated, "not that much," and when Holland pressed Petitioner as to how much he had to drink that night, Petitioner stated, "I don't think I should answer that." T.T. 109-110.

Holland then asked Petitioner to perform four field sobriety tests, all of which Petitioner failed. T.T. 110-122. The sobriety tests were performed in front of Trooper Larry Wolkonowski ("Wolkonowski") who also testified that Petitioner's eyes were bloodshot, his speech was slurred, and he smelled of alcohol. T.T. 115, 166. Following the sobriety tests, Holland arrested Petitioner for Driving While Intoxicated, Mirandized him, and read him standard DWI warnings. Petitioner agreed to take a breath chemical analysis test ("breath test"). T.T. 123.

Holland then transported Petitioner to the Sheriff's office located in Canandaigua. T.T. 124. Deputy Floyd Cooley ("Cooley") was waiting at the Sheriff's office to administer the breath test. Cooley prepared the breath test and asked Petitioner if he would take it. T.T. 210. Petitioner stated that he would not take the test because "he hit his head during the accident and he didn't know what [he] was saying." T.T. 210-211. Cooley then called for Holland who was planning on observing the administration of the breath test, but had not yet entered the room. T.T. 211. Upon entering the room, Holland asked Petitioner if he was going to take the test, and again Petitioner indicated he was not. T.T. 127. Holland then asked Petitioner if he was refusing to take the test because he had been drinking and he had hit his head, to which Petitioner answered in the affirmative, but stated that he was not "sauced or nothing." T.T. 127. Holland then reminded Petitioner that Petitioner had told Holland at the scene that he was not injured. Petitioner again stated that he was not going to take the test, at which point Holland re-read Petitioner the standard DWI warnings. T.T. 128.

Prior to trial, a combined probable cause/Huntley hearing was held on October 31, 2003, at which Holland testified for the People. The trial court determined that Petitioner's arrest was lawful. It also suppressed Petitioner's statement to Cooley ---that he would not take the breath test because he had hit his head in the accident --- insomuch as Holland, the People's only witness at the hearing, was not present when the statement was made. The Court found that the remainder of Petitioner's statements to Holland, as well as evidence of Petitioner's refusal to take the breath test, were admissible. Hearing Minutes [H.M.] of 10/31/03, 41-44.

Shortly after the combined probable cause/Huntley hearing, Petitioner moved the court for new counsel. The court granted Petitioner's motion.*fn1 H.M. of 11/14/02, 5.

On January 7, 2004, the People moved for reargument of Petitioner's Huntley motion on the ground that the court had improperly suppressed Petitioner's statement to Cooley. In the alternative, the People requested that the court reopen said hearing to allow Cooley to testify. The court granted the People's request without objection from the defense, and a second hearing was held on February 11, 2004, at which Cooley testified. The Court found that Petitioner's statement to Cooley was admissible. H.M. of 02/11/04, 32.

On March 22 and 23, 2003, the county court conducted a jury trial on the charges of Driving While Intoxicated as a Felony and Criminal Mischief in the Fourth Degree, and a non-jury trial on the charge of Leaving the Scene of an Incident Without Reporting. Petitioner was found guilty as charged. He was sentenced to an indeterminate term of imprisonment of two and one-third to seven years on the Driving While Intoxicated as a Felony charge, a concurrent determinate term of imprisonment of one year on the Criminal Mischief in the Fourth Degree charge, and a concurrent determinate term of incarceration of fifteen days on the charge of Leaving the Scene of an Incident Without Reporting. The court also fined Petitioner $7,500, imposed a $210 surcharge, and revoked Petitioner's drivers license for a period of one year. Sentencing Minutes [S.M.] 30-31.

Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, which was unanimously affirmed on December 22, 2005. People v. Smith, 24 A.D.3d 1286 (4th Dep't. 2005). Leave to appeal to the New York Court of Appeals was denied on March 24, 2006. People v. Smith, 6 N.Y.3d 838 (N.Y. 2006).

Petitioner petitioned the U.S. Supreme Court for a writ of certiorari, which was denied on October 2, 2006. Smith v. ...

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