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The People of the State of v. Frank B. Houck

State of New York Supreme Court, Appellate Division Third Judicial Department


December 13, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
FRANK B. HOUCK, APPELLANT.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered March 1, 2011, upon a verdict convicting defendant of the crime of driving while intoxicated.

The opinion of the court was delivered by: McCarthy, J.

MEMORANDUM AND ORDER

Calendar Date: October 16, 2012

Before: Mercure, J.P., Rose, Lahtinen, McCarthy and Egan Jr., JJ.

Defendant was charged by indictment with driving while intoxicated as a felony due to a prior conviction (see Vehicle and Traffic Law § 1192 [3]). Following a jury trial, he was convicted of the charge and County Court sentenced him to five years of probation and a fine. Defendant now appeals. We affirm.

Defendant asserts that he was deprived of a fair trial as a result of prosecutorial misconduct and an improper jury charge.

Specifically, defendant argues that during cross-examination and summation, the prosecutor impermissibly shifted the burden of proof to defendant and forced him to characterize a prosecution witness as a liar. Further, defendant argues that the jury instructions did not sufficiently address the limited purpose for which evidence of defendant's prior conviction could be used.

Among the questions during cross-examination to which defendant objected at trial, only one is arguably relevant to the issues he raises on appeal. At one point, the prosecutor asked defendant, "And according to you, you could have scientifically proven that [you were not intoxicated] at that time because your blood alcohol content would not have been illegal, correct?" Defendant's objection to this question was overruled, and defendant now argues that this question serves as evidence of the prosecutor's attempts to impermissibly shift the burden of proof to defendant. Even if this question were inappropriate, standing alone it is insufficient to constitute "a flagrant and pervasive pattern of prosecutorial misconduct" so as to warrant a new trial (People v Demming, 116 AD2d 886, 887 [1986], lv denied 67 NY2d 941 [1986]; see People v Wright, 88 AD3d 1154, 1158 [2011], lv denied 18 NY3d 863 [2011]; People v White, 79 AD3d 1460, 1464-1465 [2010], lvs denied 17 NY3d 791, 803 [2011]; People v Jones, 283 AD2d 665, 668 [2001], lv denied 96 NY2d 903 [2001]).

As to comments in the prosecutor's closing argument, the other questions on cross-examination and County Court's charge to the jury, defendant failed to preserve these issues for appeal. Defendant did not object to either the closing statement, questions or jury instructions at the time that they were given. Because he did not protest these issues at a time when the court had an opportunity to correct the alleged errors, they are not preserved for our review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Head, 90 AD3d 1157, 1158 [2011]; People v Clairmont, 75 AD3d 920, 923-924 [2010], lv denied 15 NY3d 919 [2010]; People v Keller, 238 AD2d 758, 758 [1997]). As to these unpreserved issues, we decline to exercise our interest of justice jurisdiction.

Mercure, J.P., Rose, Lahtinen and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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