People v Lofrese (Louis)

[*1] People v Lofrese (Louis) 2007 NY Slip Op 50726(U) [15 Misc 3d 134(A)] Decided on April 6, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 23, 2007; it will not be published in the printed Official Reports.

Decided on April 6, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and MOLIA, JJ
2005-428 OR CR.

The People of the State of New York, Respondent,

against

Louis Lofrese, Appellant.

Appeal from a judgment of the City Court of Middletown, Orange County (Victor J. Alfieri, Jr., J.), rendered on March 28, 2005. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated.

Judgment of conviction modified on the law by vacating so much of the sentence as imposed as conditions of probation that defendant is not to own or have a motor vehicle registered in his name; as so modified, affirmed.

Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) beyond a reasonable doubt, since the State Troopers testified that defendant's eyes were bloodshot, the odor of alcohol emanated from his breath, he failed field sobriety tests, he refused to take a chemical breath test, and defendant testified that he consumed alcohol shortly before driving his vehicle. Moreover, upon our factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15 [5]). The resolution of issues of credibility, as well as the weight to be accorded the evidence, is primarily to be decided by the trier of fact, which had the opportunity to see and hear the witnesses (People v Romero, 7 NY3d 633 [2006]). The determination is afforded great weight on appeal and will not be disturbed unless clearly unsupported by the evidence (People v Garafolo, 44 AD2d 86, 88 [1974]).

Defendant's contention that a mistrial should have been granted, based on Trooper Sumnick's trial testimony regarding an oral statement defendant made at the scene that he had "four 7 & 7s and some shots," is not preserved for appellate review since defendant failed to make a timely motion for a mistrial (see generally People v De Mauro, 48 NY2d 892, 893 [1980]) or raise an objection with respect thereto (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). Nevertheless, as a matter of discretion in the interest of justice (CPL 470.15 [3] [c], [6] [a]), we will consider the issue.

At the Huntley hearing held before trial, the burden of proof regarding the voluntariness of said statement made by defendant rested with the People (see CPL 710.70 [3]; People v Witherspoon, 66 NY2d 973, 974 [1985]; People v Huntley, 15 NY2d 72, 78 [1965]). It is well settled that the rule permits the People to meet their burden of proving a statement's voluntariness by presenting evidence of the circumstances leading to the statement through the officer who questioned the defendant (see e.g. People v Wilson, 143 AD2d 786 [1988]). However, Trooper Sumnick did not testify at the hearing to prove the voluntariness of the statement made to him after he stopped defendant's vehicle, and there was no testimony establishing the voluntariness of said statement. Nevertheless, any error in admitting said statement was harmless since there was overwhelming evidence of defendant's operation of a motor vehicle while intoxicated and no reasonable possibility that defendant's statement to the Trooper contributed to his conviction (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Swanston, 277 AD2d 600 [2000]).

Defendant was sentenced to a three-year term of probation which included conditions that he not "own, operate nor have a registered car in [] [his] name
. . . ." Defendant raises on appeal the propriety of the aforementioned conditions of probation (see generally People v Letterlough, 86 NY2d 259, 263 [1995]; People v Pfaudler, 164 AD2d 873 [1990]).

Penal Law § 65.10 (5) authorizes a court to impose conditions of probation which are "necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant" (see People v Rocco, 309 AD2d 882, 882 [2003]). The condition that defendant not drive a vehicle appropriately addressed defendant's conduct which gave rise to the instant offense. However, the conditions imposed by the sentencing court prohibiting defendant from owning or "hav[ing] a registered car in [his] []name" were overbroad (see Penal Law § 65.10; see generally People v Rocco, 309 AD2d 882, supra). Accordingly, the judgment of conviction is modified by vacating the conditions of probation prohibiting defendant from owning or having a motor vehicle registered in his name from the sentenced imposed.

We have reviewed defendant's remaining contentions and find them to be without merit. [*3]

Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: April 6, 2007