People v Calkins
Annotate this CaseDecided on November 30, 2016
County Court, Monroe County
The People of the State of New York, Respondent,
against
Benjamin Calkins, Defendant.
15/0089
For the People:
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
SCOTT MYLES, ESQ.
Assistant District Attorney
47 S. Fitzhugh Street
Rochester, New York 14614
For the Defendant:
STEPHEN M. LEONARDO, ESQ.
30 West Broad Street, Suite 500
Rochester, New York 14614
Christopher S. Ciaccio, J.
Defendant Benjamin Calkins appeals from a judgment of Henrietta Town Court (Beikirch, J.), entered October 19, 2015, convicting him after a bench trial of Failure to Maintain Lane (VTL §1128[a]) and Driving While Intoxicated (VTL §1192[2]). He was acquitted of Imprudent Speed (VTL §1180[a]), Common Law Driving While Intoxicated [VTL §1192[3]) and Aggravated Driving While Intoxicated [VTL §1192[2-a]).
The judgment is affirmed and the appeal is dismissed.
Defendant argues that the evidence was legally insufficient and against the weight of the evidence. Since he made no motion at the close of proof for a trial order of dismissal, he failed to preserve his contention that the convictions were not supported by legally sufficient evidence (People v Gray, 86 NY2d 10, 19 [1995], see also, People v DeCarlis, 37 AD3d 1040 [4th Dept 2007], lv denied 8 NY3d 945 [2007]; People v Prescott, 286 AD2d 898 [4th Dept 2001], lv denied 97 NY2d 686 [2001]. That this was a bench trial makes no difference with respect to the preservation issue (People v Santos, 86 NY2d 869 [1995]), and the court declines to review the issue in the interest of justice.
Under a weight of the evidence analysis, the appellate court reviews whether the credible evidence would allow the court to conclude that a different finding would not have been unreasonable. If it concludes that a verdict of not guilty would not have been unreasonable, it then conducts an independent review and assessment of the evidence and a determination of whether the verdict was factually correct (People v Howard, 132 AD3d 1266 [4th Dept. 2015], citing People v Bleakley 69 NY2d 490, 495 [1987]). If not convinced that the fact-finder "was justified in finding that guilt was proven beyond a reasonable doubt" (People v. Oberlander, 94 AD3d 1459, 1459 [4th Dept. 2012]) the court may acquit. In reviewing the evidence, however, great deference is to be accorded to the fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Johnson, 140 AD3d 978, 979 [2nd Dept 2016]).
The Court finds that a different verdict would not have been unreasonable and thus undertakes an independent review of the evidence.
That evidence established that at approximately 2:14 a.m. on February 8, 2014, Deputy Spencer Bills of the Monroe County Sheriff's Office responded to a dispatch for a vehicle that hit a pole. He arrived at the scene and saw a motor vehicle in a parking lot with extensive front-end damage and a pole in the parking lot with markings on it, leading him to conclude that a car had left the roadway and struck the pole.
Within twenty seconds of arriving at the scene, he was approached by a male. Asked if he was okay, the male responded, several times, that he thought he hadn't had too much to drink, that he thought he was able to drive, and that he was not (able to drive). He said he had two and a half to three beers. He admitted driving. When the deputy first arrived, there was no one else present at the scene.
The parties stipulated that when Deputy Bills encountered him the defendant was intoxicated and that he had a blood alcohol content of .19 as of the time the test was administered. The parties also stipulated that the breath test was conducted properly and that the machine used to administer the test was in working order.
Defendant argues that the evidence is entirely circumstantial and does not establish, to a "moral certainty," that the defendant operated the damaged vehicle at all, or that he drove it while in an intoxicated condition (suggesting that he got drunk at a nearby tavern between the time of the accident and the arrival of the deputy), or that he operated it in a parking lot included within the definition of Vehicle and Traffic Law §1192(7), in that there was no testimony that the parking lot had room for four vehicles.
"Moral certainty" is no longer part of the standard jury charge on circumstantial evidence. That charge now reads that in cases where the evidence is entirely circumstantial, it "must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence." (CJI 2nd [NY] Evidence — Circumstantial Evidence) (see also People v [*2]Sanchez, 61 NY2d 1022 [1984]; People v Ford, 66 NY2d 428, 441-443 [1985]). Here, the defendant has put forward several hypotheses, but not necessarily reasonable ones. The presence of a nearby tavern, without more, doesn't give rise to a reasonable inference that the defendant got drunk there after the accident. That the vehicle was in a parking lot after hitting a pole does not allow an inference that the vehicle had been driven only in that lot, especially in light of defendant's statements.
But more to the point, the evidence in the case wasn't entirely circumstantial. Direct evidence of intoxication established an element of the offense, namely, intoxication, thus the circumstantial evidence charge, and by extension the analysis it requires, does not apply (see People v. Coker, 121 AD3d 1305, 1308 [3rd Dept 2014]), leave to appeal denied, 26 NY3d 927 [2015], citing People v. Daddona, 81 NY2d 990, 992 [1993]).
Moreover, the defendant's admission that he thought he was able to drive and that he was not, was not circumstantial at all, but rather, was direct evidence of operation. It may have been a somewhat oblique admission but it was sufficiently direct to allow the fact-finder to conclude that the defendant operated the vehicle on a roadway en route to the parking lot while in an intoxicated condition.
Accordingly, the judgement of the Town of Henrietta Justice Court is hereby AFFIRMED and the appeal is dismissed.
This constitutes the DECISION and ORDER of the Court.
Dated: November 30, 2016
Rochester, New York
___________________________________________
HON. CHRISTOPHER S. CIACCIO
Monroe County Court Judge
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