Opinion
11-09-2016
The PEOPLE, etc., respondent, v. Jose GONSALEZ, appellant.
N. Scott Banks, Hempstead, NY (Jeremy L. Goldberg and Dori Cohen of counsel), for appellant. Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Monica M.C. Leiter of counsel), for respondent.
N. Scott Banks, Hempstead, NY (Jeremy L. Goldberg and Dori Cohen of counsel), for appellant.Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Monica M.C. Leiter of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered July 30, 2013, convicting him of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2–a), driving while intoxicated per se in violation of Vehicle and Traffic Law § 1192(2), and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Peck, J.), of that branch of the defendant's omnibus motion which was to suppress the results of a breathalyzer test.
ORDERED that the judgment is affirmed.
The defendant's contention that the results of a breathalyzer test should have been suppressed is without merit, as, in the absence of his express refusal to submit to such testing, the police were entitled to rely upon the implied consent provision of Vehicle and Traffic Law § 1194(2)(a)(1) to obtain a test of the defendant's breath to determine his blood alcohol content (see People v. Kates, 53 N.Y.2d 591, 595, 444 N.Y.S.2d 446, 428 N.E.2d 852 ; People v. Centerbar, 80 A.D.3d 1008, 1009, 914 N.Y.S.2d 784 ; People v. Dombrowski–Bove, 300 A.D.2d 1122, 1123, 753 N.Y.S.2d 259 ; People v. Dixon, 149 A.D.2d 75, 81, 543 N.Y.S.2d 993 ). Moreover, the police officers' testimony established that the test was administered in accordance with the statute, as the officers had reasonable grounds to believe that the defendant was operating a motor vehicle in violation of Vehicle and Traffic Law § 1192 and the test was administered at a police officer's direction within two hours of the defendant's arrest (see Vehicle and Traffic Law § 1194[2] [a][1] ; People v. Marietta, 61 A.D.3d 997, 998, 879 N.Y.S.2d 476 ).
The Supreme Court properly denied the defendant's first and second Batson challenges (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ), because he failed to meet his burden of demonstrating a prima facie case of discrimination (see People v. Hecker, 15 N.Y.3d 625, 653–655, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Jones, 11 N.Y.3d 822, 823, 869 N.Y.S.2d 8, 898 N.E.2d 21 ; People v. Childress, 81 N.Y.2d 263, 267–268, 598 N.Y.S.2d 146, 614 N.E.2d 709 ; People v. Calas, 134 A.D.3d 1043, 1045, 22 N.Y.S.3d 217 ; People v. Santos, 105 A.D.3d 1064, 1065, 963 N.Y.S.2d 380 ; People v. Quiles, 74 A.D.3d 1241, 1242, 904 N.Y.S.2d 469 ; People v. Severino, 44 A.D.3d 1077, 1078, 844 N.Y.S.2d 391 ).
The defendant's third and fourth Batson challenges were properly denied because once the prosecutor set forth race-neutral reasons for the peremptory strikes, the defendant failed to meet his burden of establishing that those reasons were pretextual (see People v. Smocum, 99 N.Y.2d 418, 423–424, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Boyce, 118 A.D.3d 1016, 1017, 988 N.Y.S.2d 262 ; People v. Lemay, 69 A.D.3d 757, 758, 894 N.Y.S.2d 63 ; People v. Reid, 57 A.D.3d 695, 696, 869 N.Y.S.2d 183 ; People v. Jacobs, 54 A.D.3d 969, 969, 863 N.Y.S.2d 826 ). The defendant's contentions that the Supreme Court improperly combined steps two and three of the Batson analysis and that the People failed to link the race-neutral reasons for their strikes to the facts of the case were not raised before the Supreme Court and are thus unpreserved for appellate review (see People v. James, 99 N.Y.2d 264, 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152 ; People
v. Ross, 83 A.D.3d 741, 742, 919 N.Y.S.2d 526 ; People v. Lemay, 69 A.D.3d at 758, 894 N.Y.S.2d 63 ; People v. Reid, 57 A.D.3d at 696, 869 N.Y.S.2d 183 ; People v. Jacobs, 54 A.D.3d at 969, 863 N.Y.S.2d 826 ). In any event, his contentions are without merit (see People v. Hecker, 15 N.Y.3d at 664, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Smocum, 99 N.Y.2d at 423–424, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Ross, 83 A.D.3d at 742, 919 N.Y.S.2d 526 ; People v. Reid, 57 A.D.3d at 696, 869 N.Y.S.2d 183 ; People v. Salinas, 11 A.D.3d 566, 567, 782 N.Y.S.2d 802 ).
Reviewing the jury charge as a whole, it fairly instructed the jury on the correct rules to be applied, and the Supreme Court did not improvidently exercise its discretion in declining to instruct the jury pursuant to the expanded charge proposed by the defendant (see People v. Samuels, 99 N.Y.2d 20, 25–26, 750 N.Y.S.2d 828, 780 N.E.2d 513 ; People v. Page, 137 A.D.3d 817, 26 N.Y.S.3d 567 ; People v. McClary, 107 A.D.3d 744, 744, 966 N.Y.S.2d 222 ; People v. Arriaga, 77 A.D.3d 846, 847, 909 N.Y.S.2d 379 ; People v. Dunlap, 51 A.D.3d 943, 944, 858 N.Y.S.2d 368 ; People v. Dunning, 305 A.D.2d 1074, 1075, 759 N.Y.S.2d 416 ). Further, the court's rereading of its initial charge on the element of operation was a sufficient and meaningful response to the jury's inquiry (see People v. Santi, 3 N.Y.3d 234, 249, 785 N.Y.S.2d 405, 818 N.E.2d 1146 ; People v. Almodovar, 62 N.Y.2d 126, 132, 476 N.Y.S.2d 95, 464 N.E.2d 463 ; People v. Malloy, 55 N.Y.2d 296, 303, 449 N.Y.S.2d 168, 434 N.E.2d 237 ; People v. Kucmierowski, 103 A.D.3d 755, 756, 959 N.Y.S.2d 708 ; People v. Ariza, 77 A.D.3d 844, 845, 909 N.Y.S.2d 148 ; People v. Mays, 178 A.D.2d 557, 557, 577 N.Y.S.2d 647 ). There is no indication in the record that the court misinterpreted the jury's request or that the jury was dissatisfied or confused by the instructions given (see People v. Almodovar, 62 N.Y.2d at 132, 476 N.Y.S.2d 95, 464 N.E.2d 463 ; People v. Malloy, 55 N.Y.2d at 303, 449 N.Y.S.2d 168, 434 N.E.2d 237 ; People v. Mays, 178 A.D.2d at 557, 577 N.Y.S.2d 647 ).Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).