Opinion
472 KA 17-00073
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Richard L. SAMPSON, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER 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 driving while intoxicated as a class D felony ( Vehicle and Traffic Law §§ 1192 [3] ; 1193 [1] [c] [ii] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a] [i] ). Defendant contends that County Court erred in determining that the testimony of a State Trooper regarding statements made by the other occupants of the vehicle was admissible in evidence under the present sense impression and excited utterance exceptions to the rule against hearsay. Specifically, when the Trooper first approached the window of the vehicle, about 20 seconds after pulling it over, he observed defendant attempting to settle himself between two occupants of the vehicle who were sitting in the back seat, and the Trooper heard the other occupants of the vehicle spontaneously state, among other things, that defendant was the driver of the vehicle. Under those circumstances, the court properly admitted in evidence the spontaneous statements of the other occupants of the vehicle as excited utterances (see People v. Hernandez , 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272 [2016] ). The court also properly admitted those statements as present sense impressions, inasmuch as the statements described an unfolding situation and were independently verified by the Trooper's own observations (see People v. Eves , 28 A.D.3d 1231, 1231, 815 N.Y.S.2d 389 [4th Dept. 2006], lv denied 7 N.Y.3d 755, 819 N.Y.S.2d 881, 853 N.E.2d 252 [2006] ; see generally People v. Vasquez , 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ). Defendant also contends that the admission in evidence of those statements violated his right to confront witnesses against him. We reject that contention because the spontaneous statements of the other occupants were not testimonial in nature (see generally People v. Garcia , 25 N.Y.3d 77, 85, 7 N.Y.S.3d 246, 30 N.E.3d 137 [2015] ).
We reject defendant's contention that his conviction of driving while intoxicated is not supported by legally sufficient evidence with respect to the element of operation of a motor vehicle, inasmuch as "there is a valid line of reasoning and permissible inferences from which a rational jury could have found [that] element[ ] of the crime proved beyond a reasonable doubt" ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks omitted] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see id. ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Courteau, 154 A.D.3d 1317, 1318, 63 N.Y.S.3d 154 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ). We also reject defendant's contention that the court improperly aided the prosecution during an evidentiary hearing by asking additional questions of the testifying State Trooper. The court did not take on " ‘either the function or appearance of an advocate’ " ( People v. Pham, 178 A.D.3d 1438, 1439, 112 N.Y.S.3d 663 [4th Dept. 2019] ) and instead merely sought to " ‘clarify [the Trooper's] testimony and to facilitate the progress of the [hearing] and to elicit relevant and important facts’ " ( id. at 1438, 112 N.Y.S.3d 663 ).
Contrary to defendant's further contention, defense counsel was not ineffective for failing to object to the testimony of the Trooper regarding statements made by defendant on the ground that defendant's statements were hearsay. Certain of those statements were not admitted for their truth, and thus were not hearsay (see generally People v. Patterson, 28 N.Y.3d 544, 551-552, 46 N.Y.S.3d 511, 68 N.E.3d 1242 [2016] ), the remaining statements of defendant were admissible as declarations against defendant's interest (see People v. Soto, 26 N.Y.3d 455, 457, 23 N.Y.S.3d 632, 44 N.E.3d 930 [2015] ), and defense counsel's performance was not rendered ineffective by an alleged failure to " ‘make an objection or argument that has little or no chance of success’ " ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Defendant further contends that defense counsel was ineffective for failing to object to the Trooper's testimony when the Trooper read aloud a portion of defendant's chemical test refusal form. Defense counsel, however, initially objected to the admission in evidence of the chemical test refusal form, and defendant failed " ‘to demonstrate the absence of strategic or other legitimate explanations’ " for defense counsel's failure to make additional objections to that part of the Trooper's testimony ( People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Lastly, the sentence is not unduly harsh or severe.