People v Majors

[*1] People v Majors 2007 NY Slip Op 52318(U) [17 Misc 3d 1137(A)] Decided on December 7, 2007 Sullivan County Ct LaBuda, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2007
Sullivan County Ct

People of the State of New York

against

Lance Majors, Defendant.



113-07



APPEARANCES:

Law Office of John Kelly

901 Sheridan Avenue

Bronx, NY 10451

By: Giovanni Rosania, Esq., of counsel

Attorney for Defendant

Hon. Stephen F. Lungen

Sullivan County District Attorney

Sullivan County Courthouse

Monticello, NY 12701

By: James R. Farrell, ADA, of counsel

Attorney for the People

Frank J. LaBuda, J.

Defendant moves this Court for an Order "vacating the verdict of the trial jury on the grounds that an error of law exists which would demand a reversal on appeal of the conviction."

The People submit affirmation in opposition.

Defendant was indicted for and convicted by jury verdict of felony operating a motor vehicle while under the influence of alcohol [V & T 1192(3)/1193(1)(c)(ii)], aggravated unlicensed operation of a motor vehicle in the first degree [V & T 511(3)(a)(i)], reckless endangerment in the second degree (PL 120.20), endangering the welfare of a child (PL 260.10), reckless driving (V & T 1212) and speeding[FN1] [V & T 1180(d)}. He has not yet been sentenced. [*2]

A motion to vacate a conviction may be made either after sentencing (440 motion) or after trial but prior to sentencing (330 motion).

Although not identified as such, since the within defendant has not yet been sentenced this Court will accept this motion as a 330 motion.

"At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict, or any part thereof upon the following grounds: 1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." CPL §330.30(1). (emphasis added).

A trial court is limited under CPL 330 to examining the evidence as a matter of law whereas an appellate court may delve into matters of law or fact. See, People v Carter, 63 NY2d 530 (1984).

The defendant proceeded to trial Pro Se. After many warnings by your within Judge as to the perils of proceeding Pro Se and the standards that the court would hold the defendant to even though he was not a lawyer a court appointed lawyer was assigned to assist the defendant as he saw fit.

The People called the arresting police officer on their case in chief. The People questioned the police officer regarding, inter alia, his experience and qualifications, observations of the defendant's driving, the stop of defendant's vehicle, probable cause for arrest and the breathalyzer test and its results. The police officer was not questioned regarding the Alco-Sensor test given to the defendant at the scene.

Upon cross examination of the police officer the defendant Pro Se elicited testimony regarding the Alco-Sensor test and its results.

The defendant Pro Se did not object to the police officer's responses regarding the Alco-Sensor in response to his questions on cross examination. Assigned counsel objected to the responses but was overruled.

Neither the defendant nor assigned counsel requested a mistrial or limiting instructions to the jury. [*3]

At the jury charge conference the People requested the court to give limiting instructions to the jury regarding the Alco-Sensor testimony elicited on cross examination by the Pro Se defendant.

This Court did, in fact, charge the jury that it could not use the Alco-Sensor testimony for purposes of a specific numeric reading of the defendant's blood alcohol level or that they could not use the Alco-Sensor testimony as a measure of defendant's intoxication.

Neither the Pro Se defendant nor the assigned attorney objected to this Court's jury charges.

Furthermore, at closing the People did not refer to the Alco-Sensor testimony elicited by the defendant in any way.

Defendant herein argues that the jury verdict should be set aside and a new trial ordered as a matter of law because the court improperly allowed the evidence of an Alco-Sensor reading

of the defendant's blood alcohol level to be introduced to the jury. The defendant cites People v MacDonald, 89 NY2d 908(1996);

People v Thomas, 121 AD2d 73 (4th Dept., 1986); People v Ottino, 178 Misc 2d 416 (Sull. Cty. Ct., 1998).

Defendant's use of the above cited three cases is misplaced.

First, both MacDonald and this Court's decision in Ottino stem from the use of a refusal to take the Alco-Sensor test not the results of said test.

Second, all three above cited cases, MacDonald, Ottino and Thomas, involve the use of the Alco-Sensor test or the refusal to take the testin the People's case in chief.

The within matter deals with the use of the Alco-Sensor test

results elicited by defense cross examination not by the People's case in chief.

It is plain to this Court that the defendant opened the door to the Alco-Sensor test by questions he posed upon cross examination of the police officer. See, People v Seavy, 16 AD3d 1130 (4th Dept., 2005).

The standard "opened the door" rule involves the defense eliciting testimony on cross [*4]examination of a People's witness, or eliciting testimony on direct from a defense witness, which then allows the People to introduce otherwise inadmissible evidence in response to overcome testimony which would or could mislead the jury. See, People v Massie, 2 NY3d 179 (2004); People v Melendez, 55 NY2d 445 (1982).

In the instant matter, the defendant opened the door but the People did not take advantage and walk through it.

In addition, the People did not refer to the Alco-Sensor testimony in their closing and requested limiting instructions included with the court's jury charge.

Lastly, this Court gave specific limiting instructions to the jury regarding the Alco-Sensor testimony which were not objected to by the Pro Se defendant or his assigned counsel.

Based upon the above, it is

ORDERED, that defendant's motion regarding 330 relief is denied.

This shall constitute the Decision and Order of this Court.

DATED: December 7, 2007

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate Footnotes

Footnote 1: 107 mph in a 55 mph zone.