People v Diodato (Jack)

[*1] People v Diodato (Jack) 2004 NY Slip Op 50614(U) Decided on June 9, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2001-1311 OR CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

JACK DIODATO, Appellant.

Appeal by defendant from judgments of the Justice Court, Village of Maybrook, Orange County (K. Petzold, J.), rendered August 28, 2001, convicting defendant, after trial, of aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2]) and operating a motor vehicle with an obstructed view (Vehicle and Traffic Law § 375 [30]), and imposing sentence.

Judgment convicting defendant of operating a motor vehicle with an obstructed view unanimously reversed upon the law and facts, and simplified traffic information dismissed.

Judgment convicting defendant of aggravated unlicensed operation of a motor vehicle in the second degree unanimously modified on the law by vacating the sentence imposed and remitting the matter for resentencing; as so modified, affirmed.
The proof failed to establish that the object suspended from defendant's rear-view mirror "obstructe[d] or interfere[d] with" defendant's view through the windshield or with a "clear and full view of the road and condition of traffic behind" (Vehicle and Traffic Law
§ 375 [30]; see People v Ferreira, NYLJ, Feb. 26, 1996 [App Term, 9th & 10th Jud Dists]). However, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), we are satisfied that the evidence established beyond a reasonable doubt that having reason to know his license had been revoked following his refusal to submit to a chemical test [*2](cf. Vehicle and Traffic Law § 1194), defendant operated his motor vehicle on a public highway. Further, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495 [1987]). The People proved, inter alia, that a license revocation notice duly issued following the adverse refusal hearing, per Vehicle and Traffic Law § 214, which creates a statutory presumption of notice of suspension or revocation (People v Meyer, 177 Misc 2d 537, 538 [App Term, 9th & 10th Jud Dists 1998]). The jury's determination to reject defendant's claim that he never received such notice is supported by the evidence, and we cannot say that the presumption was rebutted, as a matter of law, by defendant's receipt of a driver's license from the Department of Motor Vehicles, issued subsequent to the refusal hearing but prior to the revocation.

We also reject defendant's claim that he was denied the effective assistance of counsel. As defendant made no motion pursuant to CPL 440.10 to vacate the judgment on the basis of trial counsel's alleged ineffectiveness, there was no evidentiary exploration of "background facts" that might have illuminated the factual and legal basis of counsel's trial strategy (People v Love, 57 NY2d 998, 1000 [1982]; see People v Brown, 45 NY2d 852, 854 [1978]). To the extent that the available record permits such review, we conclude that defendant received meaningful representation (People v Baldi, 54 NY2d 137, 147 [1981]; People v Lopez, 2 AD3d 234 [2003]). Counsel's examination of witnesses and his arguments to the court and jury reveal familiarity with the facts and law and a vigorously-advanced strategy to disprove elements of the crimes charged (People v Benevento, 91 NY2d 708, 714 [1998]), which given the nature of the proof, was eminently reasonable (People v Garcia, 75 NY2d 973, 974-975 [1990]). Further, the record does not support an inference that, but for the remaining alleged derelictions, including the failure to make a pretrial suppression motion, there is a reasonable probability that the result would have been different (Strickland v Washington, 466 US 668 [1984]; see People v Rivera, 71 NY2d 705, 709 [1988]; People v Torres, 183 AD2d 862, 863 [1992]).
We have reviewed defendant's remaining claims of error and find them to be without merit (People v Blount, 90 NY2d 998 [1997]; People v Cooper, 78 NY2d 476 [1991]; Matter of 303 W. 42nd St. v Klein, 46 NY2d 686, 693 [1979]).

Defendant should have been sentenced separately for each conviction (CPL 380.20; see also People v Sturgis, 69 NY2d 816 [1987]).
Decision Date: June 09, 2004