New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
April 13, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
ROGER R. CRANE,
Appeal from a judgment of the Justice Court of the Town of New Windsor, Orange County (Noreen Calderin, J.), rendered June 16, 2010.
People v Crane (Roger)
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 13, 2012
PRESENT: LaCAVA, J.P., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of driving while intoxicated.
ORDERED that the judgment of conviction is affirmed.
After observing defendant committing one or more traffic infractions, a state trooper stopped defendant's vehicle and ultimately arrested defendant and charged him with, among other offenses, driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 ), based on a blood alcohol content of .16 of one per centum by weight, and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 ). At a jury trial, after the remaining charges had been dismissed, the jury acquitted defendant of driving while intoxicated per se and convicted him of common law driving while intoxicated.
Defendant contends that the Justice Court, in error, failed to grant his requests to excuse two of the prospective jurors for cause, and that the defense was wrongly precluded from eliciting testimony by defendant's companion concerning her arrest on the same night as defendant's arrest and the fact that the charge against her was later dismissed. Defendant further contends that the verdict was against the weight of the evidence. We find these claims to be without merit and affirm the judgment of conviction.
Defendant's failure to exercise an available peremptory challenge to strike a prospective juror waived the claim that the challenge for cause against the juror should have been granted (People v Foster, 64 NY2d 1144, 1146 ; People v Jackson, 59 AD3d 736 ; People v Pagan, 191 AD2d 651 ). With respect to the remaining juror, although defendant exercised a peremptory challenge against that juror and ultimately exhausted his peremptory challenges (CPL 270.20 ; People v Lynch, 95 NY2d 243, 251-252 ; People v MacFarlane, 87 AD3d 700, 702 ), the challenge to the Justice Court's failure to discharge the remaining prospective juror for cause is only partially preserved. To preserve an objection to a denial of a challenge for cause, the bases therefor must be raised with specificity at the trial (People v Horton, 79 AD3d 1614, 1615 ; People v Rivera, 31 AD3d 670, 671 ). Here, defendant did not invoke the juror's reference to a recent burglary at a relative's home as a ground to strike the juror for cause, and that argument is not preserved for appellate review.
To the extent that defendant has preserved his objection to the Justice Court's refusal to discharge the prospective juror for cause, we find no error. Where a prospective juror's statements raise a serious question as to bias, the juror must be excused unless the juror can provide an unequivocal and unambiguous assurance that he can set the bias aside and reach a fair and impartial verdict (People v Johnson, 94 NY2d 600, 613 ; Matter of State of New York v Kalchthaler, 82 AD3d 1672, 1673 ; People v Velasquez, 79 AD3d 1153, 1153-1154 ). In determining whether a potential juror has made the necessary unequivocal declaration, there is no canonical formula; rather, the juror's statements must be evaluated as a whole to determine if the unequivocal declaration is credible and sufficient (People v Johnson, 94 NY2d at 615-616; People v Wilson, 7 AD3d 549, 550 ; People v Sumpter, 237 AD2d 389, 391 ). The determination of whether a prospective juror has exhibited such bias and has produced an unequivocal declaration are determinations that are "committed largely to [the] judgment of the Trial Judge with his [or her] peculiar opportunities to make a fair evaluation" (People v Williams, 63 NY2d 882, 885 ; People v Pagan, 191 AD2d at 651-652). While the statements of the juror in question raised an issue of biases in favor of crediting the results of scientific testing and against persons accused of driving while intoxicated, the juror's assurance of impartiality regarding blood alcohol testing and persons accused of driving while intoxicated were unequivocal. The standard for evaluating apparently unequivocal assurances requires that the prospective juror's "entire testimony [be] considered" (People v Sumpter, 237 AD2d at 390-391) which, in this case, militates heavily in favor of crediting the assurance and denying the challenge (see e.g. People v Mercereau, 84 AD3d 1270, 1271 ). As it cannot be said that the juror possessed "a state of mind that [was] likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL 270.20  [b]; see e.g. People v Wiegert, 248 AD2d 929 ), the motion to strike the juror for cause, insofar as it was based on a claim of bias, was properly denied.
We also find no error in the Justice Court's limitation of the scope of inquiry into the circumstances of the arrest of defendant's companion by the same officer who was involved in defendant's arrest and the ultimate dismissal of the charge against her. While of constitutional dimension (People v Carroll, 95 NY2d 375, 385 ), "an accused's right to cross-examine witnesses and present a defense is not absolute" (People v Williams, 81 NY2d 303, 313 ), and it is well settled that "trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters" (People v Hudy, 73 NY2d 40, 56 ). While "extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground" (id.), the Justice Court's evidentiary rulings, in essence, as to whether the evidence tended to establish a reason to fabricate, should not be disturbed. The issue of the propriety of those official actions was collateral to the material trial issues with respect to defendant. Moreover, we note that the defense was permitted to fully explore the conduct of one of the People's police witnesses with respect to the companion, insofar as it was relevant to the issue of the witness's observations of defendant prior to conducting the blood alcohol test.
Defendant also claims that the verdict is not supported by the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), and according the appropriate deference to the jury'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 ; People v Bleakley, 69 NY2d 490, 495 ), we find that the verdict was not against the weight of the evidence. Proof of the offense of common law driving while intoxicated requires a showing that the "defendant [was] incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 428 ; People v Velasquez, 65 AD3d 1266, 1266 ). Here, the People's witnesses testified consistently and credibly with respect to a routine traffic stop for various traffic offenses, which resulted in an investigation of defendant's state of intoxication based on his erratic driving, the strong odor of an alcoholic beverage emanating from his breath and vehicle, his watery, bloodshot eyes and slurred speech, and his admission that he had consumed an alcoholic beverage (red wine) shortly before. Defendant testified that he had not successfully performed certain of the field sobriety tests, and admitted to consuming more wine than he had acknowledged to the arresting officer. Although defendant was acquitted of the charge of driving while intoxicated per se, this verdict did not preclude the jury from considering the blood alcohol reading of .16 of one per centum by weight, double the threshold for intoxication per se, to be "some evidence of intoxication" (People v Grennon, Misc 3d , 2011 NY Slip Op 21265 [App Term, 9th & 10th Jud Dists 2011], quoting Johnson v Plotkin, 172 AD2d 88, 91 ). In view of the foregoing, it cannot be said that the verdict was against the weight of the evidence.
Accordingly, the judgment of conviction is affirmed.
LaCava, J.P., Molia and Iannacci, JJ., concur. Decision Date: April 13, 2012
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