People v Johnson (Odell)People v Johnson (Odell)
Appeals from a judgment of the Criminal Court of the City of New York, Queens County (Althea Drysdale, J.), rendered September 18, 2017 and an amended judgment of that court (Eugene Guarino, J.) rendered October 17, 2018. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired and unlawful possession of marihuana, and imposed sentence. The amended judgment vacated the sentence previously imposed and resentenced defendant.
ORDERED that, on the court‘s own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that so much of the appeal as is from the portion of the judgment of the midpage-ps n=“2“/>conviction that imposed sentence is dismissed as academic, as that portion of the judgment of conviction was superseded by defendant‘s resentence on October 17, 2018; and it is further,
ORDERED that so much of the appeal as is from the portion of the judgment convicting defendant of unlawful possession of marihuana is dismissed as academic; and it is further,
ORDERED that the judgment of conviction, insofar as reviewed, is affirmed; and it is further,
ORDERED that the appeal from the amended judgment is dismissed as abandoned.
Defendant was charged with driving while intoxicated (common law) (
Upon a defendant‘s request, this court must conduct a weight of the evidence review and, thus, “a defendant will be given one appellate review of adverse factual findings” (People v Danielson, 9 NY3d 342, 348 [2007]; see also People v Joyner, 126 AD3d 1002 [2015]). If a finding in favor of the defendant “would not have been unreasonable” (People v Curry, 112 AD3d 843, 844 [2013]), this court “must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” (Danielson, 9 NY3d at 348). Nonetheless, great deference is accorded to the jury‘s 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]). However, if it appears that the jury failed to give the evidence the weight it should be accorded, this court may reverse the judgment of conviction and dismiss the accusatory instrument (see
Defendant‘s conviction of unlawful possession of marihuana “became a nullity by operation of law, independently of any appeal, and without requiring any action by this [c]ourt,” pursuant to
Finally, defendant raises no specific issue with respect to his resentence on October 17, 2018. Under the circumstances presented, the appeal from the amended judgment is dismissed as abandoned.
Accordingly, the judgment of conviction, insofar as reviewed, is affirmed, and the appeal from the amended judgment is dismissed.
ALIOTTA, P.J., and ELLIOT, J., concur.
WESTON, J.P., concurs in part and dissents in part, and votes to dismiss, as abandoned, the appeal from the amended judgment; dismiss, as academic, so much of the appeal as is from the portion of the judgment of conviction that imposed sentence; dismiss, as academic, so much of the appeal as is from the portion of the judgment convicting defendant of unlawful possession of marihuana; reverse the judgment of conviction insofar as reviewed, and dismiss the count of the accusatory instrument charging defendant with driving while ability impaired in the following memorandum:
I agree with the majority that the appeal from the amended judgment, so much of the appeal as is from the portion of the judgment of conviction that imposed sentence, and so much of the appeal as is from the portion of the judgment convicting defendant of unlawful possession of marihuana should be dismissed. However, having reviewed all the evidence, including defendant‘s video statement at the precinct, I conclude that the jury‘s verdict with respect to driving while ability impaired was against the weight of the evidence. Accordingly, I respectfully dissent and vote to reverse so much of the judgment as convicted defendant of that offense and dismiss that count of the accusatory instrument (
At trial, the People relied mainly on the testimony of the arresting officer, whose recollection was based, in part, on his memo book. The officer testified that, upon responding to a radio run for a motor vehicle accident, he observed defendant sleeping behind the wheel of a vehicle stopped in the middle of the road with the keys in the ignition and the engine running. According to the officer, the vehicle had damage to its right front corner panel, and there was damage to a nearby utility pole. Although the officer testified that he detected a strong odor of alcohol coming from the vehicle, he did not note this observation in his memo book and no alcohol was recovered. Even the officer assigned to administer breath and coordination tests at the precinct could not recall whether defendant smelled of alcohol. Although the arresting officer described defendant to be swaying and unsteady on his feet, with bloodshot, watery eyes and slurred speech, nothing in his memo book, which was admitted into evidence, contained such description. Indeed, a video of defendant taken at the precinct less than an hour after his arrest shows a strikingly different portrayal of defendant. In the video, defendant is articulate, coherent, steady on his feet, and cooperative, and he calmly and appropriately answers the officer‘s questions.
While I recognize that deference must be given to the jury‘s ability to assess the evidence and view the witnesses (see People v Bleakley, 69 NY2d 490, 495 [1987]), in this case, the jury failed to give the evidence the weight it should be accorded. The only evidence of defendant‘s guilt was the arresting officer‘s testimony, which was largely based on a memo book that omitted crucial details that would have supported the officer‘s testimony. Not only did these omissions undermine the reliability of the officer‘s testimony, but the video of defendant at the precinct completely discounted that testimony. Based on this record, an acquittal would not have been unreasonable (see People v Andujar, 166 AD3d 893 [2018]). Weighing “the conflicting
Accordingly, I vote to dismiss, as abandoned, the appeal from the amended judgment; dismiss, as academic, so much of the appeal as is from the portion of the judgment of conviction that imposed sentence; dismiss, as academic, so much of the appeal as is from the portion of the judgment convicting defendant of unlawful possession of marihuana; reverse the judgment of conviction insofar as reviewed, and dismiss the count of the accusatory instrument charging defendant with driving while ability impaired.
Paul Kenny
Chief Clerk
Decision Date: September 10, 2021