People v Smith (Howard)

[*1] People v Smith (Howard) 2010 NY Slip Op 50789(U) [27 Misc 3d 135(A)] Decided on April 28, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2008-1338 RO CR.

The People of the State of New York, Respondent,

against

Howard K. Smith, Appellant.

Appeal from a judgment of the Justice Court of the Town of Orangetown, Rockland County (Paul B. Phinney, III, J.), rendered June 4, 2008. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired. The appeal brings up for review the denial, after a hearing (Paul B. Phinney, III, J.), of the branch of defendant's omnibus motion which was to suppress evidence of defendant's refusal to submit to a chemical test.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted, after a nonjury trial, of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). He contends on appeal that the Justice Court improperly allowed the People to present evidence at trial that he had persistently refused to submit to a chemical test. He asserts that his insistence on consulting with counsel before he would consent to take a chemical test should not have been construed as a persistent refusal pursuant to Vehicle and Traffic Law section 1194 (2) (f). This argument is without merit, as defendant's repeated attempts to contact his attorney were unsuccessful (see People v Monahan, 295 AD2d 626 [2002]).

Contrary to defendant's contention, we find that the evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt of driving while ability impaired. The evidence established, beyond a reasonable doubt, that defendant's ability to operate his vehicle "was impaired to some extent" (People v McNamara, 269 AD2d 544, 545 [2000]), that is, that defendant was "incapable of employing the physical and mental abilities one is expected to possess when operating a vehicle" (People v Wenz, 12 Misc 3d 134[A], 2006 NY Slip Op 51194[U] [App Term, 9th & 10th Jud Dists 2006]). Moreover, we are satisfied that the verdict of guilty was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 [*2]NY3d 633 [2006]).

Finally, defendant argues that he was denied his fundamental right to be present at a material stage of the trial because the guilty verdict was mailed to him (see People v Febo, 210 AD2d 251, 252 [1994]). However, the verdict was stated in open court, at the sentencing hearing, at which defendant was present. Consequently, any error that may have been committed by the court in mailing the decision was cured when it restated its decision in open court (cf. United States v Canady, 126 F3d 352, 359, 361 [2d Cir 1997]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: April 28, 2010