Opinion
2017–10914 Ind. No. 161/16
12-19-2018
The PEOPLE, etc., Respondent, v. Eileen DANON, Appellant.
Lynn, Gartner, Dunne & Covello, LLP, Mineola, N.Y. (Kenneth L. Gartner, Tiffany D. Frigenti, and Joseph Covello of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Ilisa T. Fleischer of counsel), for respondent.
Lynn, Gartner, Dunne & Covello, LLP, Mineola, N.Y. (Kenneth L. Gartner, Tiffany D. Frigenti, and Joseph Covello of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Ilisa T. Fleischer of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered April 27, 2017, convicting her of driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and leaving the scene of an incident without reporting, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings pursuant to CPL 460.50(5).
The Supreme Court did not improvidently exercise its discretion in permitting the People to cross-examine the defendant as to her prior conviction for driving while intoxicated and her refusal to submit to a chemical test of her breath in connection with that incident. Although the court, after a pretrial Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), had previously ruled that such evidence would be precluded, the defendant opened the door to such testimony on direct examination (see People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293 ; People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41 ; People v. Franks, 137 A.D.3d 936, 937, 28 N.Y.S.3d 72 ; People v. Perez, 120 A.D.3d 514, 514, 990 N.Y.S.2d 590 ). Moreover, the jurors are presumed to have followed a court's limiting instructions. Any prejudicial impact was minimized by the trial court's repeated instructions that the jury was not permitted to consider such prior criminal conduct or conviction as evidence of the defendant's guilt in this case or evidence that the defendant is a person disposed to commit such crimes, and could only consider the conduct or conviction to evaluate the defendant's truthfulness at this trial (see People v. Morris, 21 N.Y.3d 588, 598, 976 N.Y.S.2d 682, 999 N.E.2d 160 ; People v. Singh, 147 A.D.3d 787, 787–788, 47 N.Y.S.3d 52 ).
The defendant's contention that the jury verdict on the count of driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) was legally repugnant is unpreserved for appellate review, as she failed to raise this issue before the jury was discharged (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Brown, 164 A.D.3d 695, 79 N.Y.S.3d 568 ; People v. Driver, 154 A.D.3d 958, 960, 64 N.Y.S.3d 222 ). In any event, the contention is without merit.
LEVENTHAL, J.P., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.