Opinion
800 KA 16–00188
06-29-2018
The PEOPLE of the State of New York, Respondent, v. Kenneth J. MARVIN, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Ontario County Court (Stephen D. Aronson, A.J.), rendered December 3, 2015. The judgment convicted defendant, upon a jury verdict, of felony driving while intoxicated, aggravated driving while intoxicated, reckless driving, criminal mischief in the fourth degree and leaving the scene of a property damage incident without reporting.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, felony driving while intoxicated ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ) and aggravated driving while intoxicated ( § 1192[2–a][a] ). Defendant's contention that County Court should have precluded certain statements of defendant because they were not included in the People's CPL 710.30 notice is unpreserved for our review because defendant did not object to the admission of those statements on that ground (see People v. Davis, 118 A.D.3d 1264, 1266, 987 N.Y.S.2d 537 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). In any event, defendant moved for and was granted a hearing on the noticed statements, and during the hearing a deputy testified about the unnoticed statements at issue on appeal. Defendant therefore " ‘waived preclusion on the ground of lack of notice because [he] was given a full opportunity to be heard on the voluntariness of [those] statement[s] at the suppression hearing’ " ( id. ).
Defendant's contention that he was denied a fair trial because the prosecutor's questioning of a prosecution witness improperly implied that defendant had a duty to prove his innocence by naming someone other than himself as the driver of the vehicle is also unpreserved for our review (see CPL 470.05[2] ). The court sustained defense counsel's objections to the prosecutor's questions and provided a curative instruction "that, in the absence of further objection or a request for a mistrial, ‘must be deemed to have corrected the error[ ] to the defendant's satisfaction’ " ( People v. Terborg, 156 A.D.3d 1320, 1321, 67 N.Y.S.3d 730 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.2d 288, 102 N.E.3d 1069 [2018], quoting People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ). Further, the jury is presumed to have followed the court's curative instructions (see People v. Allen, 78 A.D.3d 1521, 1521, 911 N.Y.S.2d 528 [4th Dept. 2010], lv denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011] ).
We reject defendant's contention that the evidence is legally insufficient to establish that he was operating the vehicle while he was in an intoxicated condition. The standard on appeal for determining whether a conviction is supported by legally sufficient evidence "is the same for circumstantial and non-circumstantial cases—whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" ( People v. Grassi, 92 N.Y.2d 695, 697, 685 N.Y.S.2d 903, 708 N.E.2d 976 [1999], rearg. denied 94 N.Y.2d 900, 707 N.Y.S.2d 145, 728 N.E.2d 341 [2000] ; see People v. Reed, 22 N.Y.3d 530, 534, 983 N.Y.S.2d 752, 6 N.E.3d 1108 [2014], rearg. denied 23 N.Y.3d 1009, 992 N.Y.S.2d 770, 16 N.E.3d 1249 [2014] ; People v. Clark, 142 A.D.3d 1339, 1340, 39 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ). Here, a sheriff's deputy discovered defendant in an intoxicated state walking along a road shortly after 5:00 a.m. less than a mile from his recently operated vehicle in an area where no other traffic or pedestrians had been observed. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the jury could have reasonably inferred that defendant operated the vehicle while intoxicated. The jury was also entitled to construe defendant's false or evasive statements to law enforcement, including that the deputy "never caught him driving," as evidence of his consciousness of guilt (see People v. Ficarrota, 91 N.Y.2d 244, 249–250, 668 N.Y.S.2d 993, 691 N.E.2d 1017 [1997] ; People v. Jackson, 118 A.D.3d 635, 636, 988 N.Y.S.2d 184 [1st Dept. 2014], lv denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ; People v. Koestler, 176 A.D.2d 1207, 1208, 576 N.Y.S.2d 705 [4th Dept. 1991] ). Thus, the "jury could rationally have excluded innocent explanations of the evidence offered by ... defendant," specifically that someone other than defendant was operating the vehicle ( Reed, 22 N.Y.3d at 535, 983 N.Y.S.2d 752, 6 N.E.3d 1108 ).