The People of the State of New York, Respondent, v Robert Carota, Jr., Appellant.
Appellate Division of the Supreme Court of New York, Third Department
2012
941 NYS2d 302
In January 2009, defendant was stopped in the early morning hours by Glens Falls Police Officer Daniel Habshi, after he observed defendant fail to stop at a stop sign, make a right-hand turn without first signaling and then proceed to drive with his vehicle straddling two lanes at once. When Habshi ap
Contrary to defendant’s contentions, we are satisfied that his convictiоn was supported by legally sufficient evidence and was in accord with the weight of the evidence.
Here, defendant’s theory of the case was that he was impairеd because he used marihuana, and he asserts that the evidence presented at trial was insufficient to support the conclusion that he was intoxicated by alcohol. We disagree. Thе People’s evidence included Habshi’s testimony that defendant failed to stop at a stop sign, made a right turn without first indicating and then continued to drive with his car in two lanes at once—all of which are violations of the Vehicle and Traffic Law (see
Viewing thе evidence in the light most favorable to the People, we conclude that “there is [a] valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” that defendant was intoxicated (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Johnson, 70 AD3d 1188, 1189 [2010]). Combined with defendant’s concession that he was operating a motor vehicle, we find the evidence was legally sufficient to support defendant’s conviction of DWI under
Despite certain inconsistencies between Habshi’s trial testimony and other evidence—including, among other things, Habshi’s grand jury testimony and certain written reports he completed—and the absence of evidence of defendant’s blood alcohol content, defendant’s conviction was not against the weight of the evidence. Any inconsistencies in relation to Habshi’s testimony were minor and “‘were thoroughly aired during cross-examination’” (People v Hamm, 29 AD3d at 1080, quoting People v Howard, 299 AD2d 647, 648 [2002], lv denied 99 NY2d 629 [2003]; see People v Silvestri, 34 AD3d 986, 987 [2006]). Defense counsel also cross-examined Habshi regarding, аmong other things, the manner in which he administered the field sobriety tests, which defendant alleged was improper in various respects. In addition, the jury heard a tape recording made by defendant of the traffic stop and defendant’s testimony that his intoxicated appearance and behavior were caused by his use of marihuana.
The jury had a full opportunity to evaluate the credibility оf the witnesses (see People v Hamm, 29 AD3d at 1081), and
In order to warrant the submission to the jury of the charge of DWAI pursuant to
In this case, there is no dispute that the first prong of the test was met. As to the second рrong, defendant admitted that he had consumed two beers prior to his arrest and that his ability to operate a motor vehicle was impaired, but alleged that such impairment was caused by his additiоnal use of marihuana, not by the alcohol he consumed. On the other hand, Habshi’s testimony was that defendant was intoxicated, not merely impaired, due to his consumption of alcohol. However, a reasonable view of the evidence could support a finding that defendant was impaired by alcohol in violation of
Thus, the jury could have believed that defendant was affected by both alcohol and marihuana, and that the two beers he consumed resulted only in some impairment of his ability to operate a motor vehicle, not intoxication. For example, the jury could have discounted Habshi’s ultimate оpinion that defendant was intoxicated, believing that he exaggerated the effect of defendant’s consumption of alcohol on his ability to operate a motor vehicle and/or based upon Habshi’s improper administration of the field sobriety tests (compare People v Scarborough, 49 NY2d at 374). Alternatively, the jury could have attributed some of Habshi’s observations of defendant’s appearance and conduct to defendant’s admitted use of marihuana, rather than to his alcohol consumption. Because a rational factfinder could have concluded on this record that defеndant committed the lesser offense but not the greater, we are constrained to reverse and remit for a new trial.
Defendant’s challenges to certain pretrial rulings by County Court do not merit extended discussion. First, there is no statutory requirement or decisional authority mandating a pretrial hearing to determine the admissibility of defendant’s refusal to submit to a chemical test (see e.g. People v O’Rama, 78 NY2d 270, 281 [1991]; People v Thomas, 46 NY2d 100, 103, 106-107 [1978], appeal dismissed 444 US 891 [1979]; see also People v Friel, 53 AD3d 667, 668 [2008], lv denied 11 NY3d 854 [2008]). Moreover, the requirements of
Nor did County Court err by limiting the Dunaway hearing so as to preclude evidence concerning the issue of probable cause for defendant’s arrest, as opposed to the stop. Aside from defendant’s bald аssertion that he had not violated any laws, none of the documentation supporting defendant’s request for a hearing on such issue presented factual support therefor (see People v Gilmore, 72 AD3d 1191, 1192 [2010]; People v McNair, 28 AD3d 800, 800 [2006]). Thus, County Court properly limited
Even assuming thаt Habshi’s grand jury testimony relating to defendant’s refusal to submit to a chemical test constitutes Rosario material, he has not demonstrated any prejudice resulting from the People’s failure to turn over such material until after the Dunaway/Huntley hearing (see generally
Rose, J.P, Malone Jr., McCarthy and Egan Jr., JJ., concur.
Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Warren County for a new trial.