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The People of the State of New York v. Colin Porter

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


November 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
COLIN PORTER,
APPELLANT.

Appeal from a judgment of the Justice Court of the Town of Mamaroneck, Westchester County (Jean Maria Brescia, J.), rendered February 8, 2010.

People v Porter (Colin)

Decided on November 1, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The judgment convicted defendant, after a non-jury trial, of driving while intoxicated.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Prior to trial, defendant moved to suppress his statement, "I'm not taking the [chemical] test, I want a lawyer." At the suppression hearing, Police Officer Daniel Smith testified that he had advised defendant that his refusal to take the chemical test would result in the immediate suspension and subsequent revocation of his driver's license, whether or not he was ultimately found guilty of the charged offense. In addition, he advised defendant that his refusal to submit to the chemical test could be introduced into evidence against him at any trial, proceeding or hearing resulting from the arrest for the charged offense. Defendant's statement was not suppressed and was admitted into evidence at trial. At the conclusion of the bench trial, defendant requested the court to consider a charge of driving while ability impaired as a lesser included offense. After trial, defendant was found guilty of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and sentenced to three years' probation.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of driving while intoxicated beyond a reasonable doubt. Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 347 [2007]), and according the appropriate deference to the trial court's credibility determinations, based on its particular opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The Justice Court failed to state on the record, prior to summation, any lesser included offense it would consider upon rendering a verdict. However, the court's failure to comply with CPL 320.20 (5) is harmless error because defendant was convicted of the offense charged and not any lesser included offense (see People v Mitchell, 254 AD2d 830 [1998]; People v Satcher, 144 AD2d 992 [1988]).

Pursuant to Vehicle and Traffic Law § 1194 (2) (f), evidence of a defendant's refusal to submit to a chemical test is admissible at trial provided the People show that he was given a sufficient warning, in clear and unequivocal language, of the effect of such refusal (see People v Thomas, 46 NY2d 100, 103 [1978]; People v Monahan, 295 AD2d 626 [2002]; People v Richburg, 287 AD2d 790 [2001]). While an individual has the right to consult with an attorney before deciding whether to submit to a chemical test (see People v Shaw, 72 NY2d 1032 [1988]; People v Gursey, 22 NY2d 224 [1968]), it is only a qualified right to counsel, not a constitutional right (see Shaw, 72 NY2d at 1033-1034; People v Hager, 69 NY2d 141, 142 [1987]; People v Curkendall, 12 AD3d 710, 712 [2004]). The request for counsel to aid a defendant in deciding whether to submit to a chemical test must be specifically made (see Shaw, 72 NY2d at 1033-1034; People v Vinogradov, 294 AD2d 708, 709 [2002]; People v Hart, 191 AD2d 991 [1993]). Since defendant did not ask to speak with an attorney about whether he should consent to the chemical test, he waived any qualified right to counsel when he stated that he would not take the test (see Shaw, 72 NY2d at 1033-1034).

Contrary to defendant's contention, the sentence imposed was neither harsh nor excessive (see People v Suitte, 90 AD2d 80 [1982]).

Accordingly, the judgment convicting defendant of driving while intoxicated is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision

Date: November 01, 2011

20111101

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