Opinion
2016-295 W CR
05-16-2019
The PEOPLE of the State of New York, Respondent, v. Frank L. CARDILLO, Appellant.
Anthony M. Giordano, Ossining, for appellant. Westchester County District Attorney (Christine DiSalvo and William C. Milaccio, Kew Gardens, of counsel), for respondent.
Anthony M. Giordano, Ossining, for appellant.
Westchester County District Attorney (Christine DiSalvo and William C. Milaccio, Kew Gardens, of counsel), for respondent.
PRESENT: TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
Appeal from a judgment of the Justice Court of the Village of Scarsdale, Westchester County (Joaquin F. Alemany, J.), rendered December 2, 2015. The judgment convicted defendant, after a nonjury trial, of driving while intoxicated (per se), and imposed sentence. ORDERED that the judgment of conviction is affirmed.
On March 29, 2015, the People charged defendant with driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2 ] ) and driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3 ] ). Defendant made no motion to suppress evidence, and, at a nonjury trial, defense counsel stipulated to the admission of the results of a post-arrest blood alcohol test, which had registered defendant's blood-alcohol content as being .14 of one per centum by weight. Following the trial, the Justice Court convicted defendant of driving while intoxicated (per se) and acquitted defendant of driving while intoxicated (common law).
Defendant's claim that the guilty verdict is against the weight of the evidence in the absence of sufficient proof of operation is without merit. "[T]here is no requirement that the defendant be observed driving the vehicle; instead, operation ... can be proven by circumstantial evidence" ( People v. Salerno , 36 Misc. 3d 151[A], 2012 N.Y. Slip Op. 51699[U], 2012 WL 3870090, *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012] ; see People v. Zou , 56 Misc.3d 136[A], 2017 N.Y. Slip Op. 50996[U], 2017 WL 3401575, *1 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017] ), that is, "without the necessity of eyewitness testimony that [a] defendant operated his or her vehicle" ( People v. Turner , 34 Misc.3d 159[A], 2012 N.Y. Slip Op. 50443[U], 2012 WL 762586, *1 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012] ; see also People v. Blake , 5 N.Y.2d 118, 120, 180 N.Y.S.2d 775, 154 N.E.2d 818 [1958] ; People v. Dunster , 146 A.D.3d 1029, 1030, 44 N.Y.S.3d 272 [2017] ).
The trial evidence presented by the People's witnesses was to the effect that, sometime after midnight, on March 29, 2015, defendant's neighbor, observing the road in front of his house from the vantage point of his bedroom window, saw an automobile parked, or at least stationary, on the road. The vehicle was then operated erratically, first being "back[ed] up aggressive[ly]," then coming to an "abrupt halt" and remaining motionless for 20-30 seconds, and then moving forward, again "aggressively," before veering off of the roadway and onto the neighbor's lawn, where it came to a stop near a driveway. The witness observed a male exit the vehicle and "slump" to the ground. The neighbor contacted the police, and, a few minutes later, police officers arrived and were directed by the witness to where defendant was lying face down on the ground near the vehicle. Behind the vehicle were fresh tire marks in the grass leading from a light pole and ending at a point behind the vehicle. The officers observed a reddish-colored vomit on defendant and on the interior and exterior of the vehicle. Defendant, who immediately conceded to the officers that he was "inebriated," later admitted that he had consumed a red-colored alcoholic beverage and that he had moved his car from the driveway and onto the street for a brief distance before returning to park it upon realizing that he was intoxicated. A defense witness offered a different account of those events, essentially, that it was he who had operated the vehicle when it had been viewed by the neighbor.
According the appropriate deference to the factfinder's opportunity to view the witnesses, hear their testimony, and assess their credibility (see People v. Lane , 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), we find that the testimonies of the People's witnesses were "plausible, internally consistent, and collectively coherent" ( People v. Giuliani , 47 Misc. 3d 31, 34, 6 N.Y.S.3d 382 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2014] ), thereby meriting our deference to the Justice Court's determination as to the weight to accord their proof of the facts. It is noted that a proper foundation was laid for a permissible negative inference to be drawn from the failure of defendant's witness to come forward, until seven months after his "good friend" had been charged with driving while intoxicated, to state that he, not defendant, had been the operator of defendant's vehicle (see e.g. People v. Hahn , 57 Misc.3d 147[A], 2017 N.Y. Slip Op. 51486[U], 2017 WL 5181508, *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017] ; see generally People v. Dawson , 50 N.Y.2d 311, 321 n. 4 and 322-323, 428 N.Y.S.2d 914, 406 N.E.2d 771 [1980] ). Consequently, we conclude that the verdict of guilt was not against the weight of the evidence.
Further, by failing to move to suppress physical evidence and statements, defendant failed to preserve any claim that the police lacked probable cause to arrest him (see CPL 470.05 [2 ]; People v. Vasquez , 66 N.Y.2d 968, 970, 498 N.Y.S.2d 788, 489 N.E.2d 757 [1985] ; People v. Mahoney , 165 A.D.3d 980, 86 N.Y.S.3d 115 [2018] ; People v. Collier , 146 A.D.3d 1146, 1147, 46 N.Y.S.3d 276 [2017] ). Not only does defendant improperly rely on trial proof to litigate an unraised and undecided issue, if it was his belief that the trial evidence established a foundation for probable cause review, there remained the remedy of a midtrial motion to convene a suppression hearing (see CPL 255.20 [3 ]; People v. Pizarro , 151 A.D.3d 1678, 1680, 57 N.Y.S.3d 283 [2017] ; People v. Samuel , 137 A.D.3d 1691, 1694, 28 N.Y.S.3d 526 [2016] ; cf. People v. Killings , 191 A.D.2d 586, 587, 595 N.Y.S.2d 79 [1993] ).
Defendant next contends that he was denied the effective assistance of counsel, asserting the claim solely under the New York standard. The basis for defendant's argument, raised for the first time on appeal, is that his trial counsel should have moved for a Mapp hearing to suppress physical evidence based on the absence of probable cause for the officer to believe that defendant had operated the motor vehicle. However, defendant does not, on appeal, state what sworn allegations of fact were available to his trial counsel sufficient to constitute grounds, if proven, that would justify suppression (see CPL 710.60 [3 ] [b]; e.g. People v. Bryant , 8 N.Y.3d 530, 533, 838 N.Y.S.2d 7, 869 N.E.2d 7 [2007] ; People v. Mendoza , 82 N.Y.2d 415, 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ). The mere denial of wrongdoing is insufficient (see People v. Garay , 25 N.Y.3d 62, 72, 7 N.Y.S.3d 254, 30 N.E.3d 145 [2015] ), and defendant cites to no facts accessible to trial counsel at the pretrial stage (including the narratives of the testifying police officers which were produced to the defense pursuant to the Rosario production) which, if proved, might have resulted in suppression (see e.g. People v. Shareef , 61 Misc.3d 137[A], 2018 N.Y. Slip Op. 51578[U], 2018 WL 6005720, *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018] ; see also People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ; People v. Meade , 150 A.D.3d 764, 51 N.Y.S.3d 423 [2017] ).
To the extent that an issue is raised as to the sufficiency of trial counsel's analysis of the facts and other strategic considerations, or to the extent that defendant is making an ineffectiveness claim that is based, in part, on matters not appearing in the record, the matter is properly pursued in a motion pursuant to CPL 440.10 (see People v. Evans , 16 N.Y.3d 571, 575 n.2, 925 N.Y.S.2d 366, 949 N.E.2d 457 [2011] ; People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Chaney , 160 A.D.3d 1281, 1285-1286, 76 N.Y.S.3d 257 [2018] ; People v. Salgado , 111 A.D.3d 859, 860, 975 N.Y.S.2d 172 [2013] ; People v. Shareef , 61 Misc.3d 137[A], 2018 N.Y. Slip Op. 51578[U], *3-4 ). To the extent that the existing record permits review (see People v. Troche , 81 A.D.3d 990, 991, 917 N.Y.S.2d 583 [2011] ; People v. Lopez , 2 A.D.3d 234, 768 N.Y.S.2d 468 [2003] ; People v. Syville , 55 Misc.3d 137[A], 2017 N.Y. Slip Op. 50507[U], 2017 WL 1378208, *3 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017] ), we find that defendant has not established a level of ineffectiveness warranting reversal. Given that there is a strong presumption that counsel was effective (see People v. Taylor , 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109 [2003] ), that perfect representation is not required (see People v. Modica , 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985] ), and that losing tactics do not, standing alone, justify an inference of ineffectiveness (see People v. Johnson , 152 A.D.3d 620, 59 N.Y.S.3d 389 [2017] ), the record, viewed in its totality (see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), fails to demonstrate that trial counsel's representation was ineffective (see People v. Barboni , 21 N.Y.3d 393, 406, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ; People v. Nicholson, 26 N.Y.3d 813, 830-831, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ).
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.