People v Duffin (Kenneth)

[*1] People v Duffin (Kenneth) 2010 NY Slip Op 51174(U) [28 Misc 3d 126(A)] Decided on June 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2009-813 N CR.

The People of the State of New York, Respondent,

against

Kenneth Duffin, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Robert H. Spergel, J.), rendered March 20, 2009. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated. The appeal from the judgment brings up for review the denial of defendant's motion to dismiss on speedy trial grounds.

ORDERED that the judgment of conviction is affirmed.

Following a jury trial, defendant was convicted of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). At trial, a Sands Point police officer testified that, at approximately exit 25 on the Southern State Parkway, while off duty, he first observed defendant driving his car at about 60 miles per hour. He further testified that the car was traveling without a right front tire, and that its metal tire rim was scraping the
roadway, making noise and creating sparks. He also observed the car weave in and out of traffic before leaving the parkway at exit 28 and driving into the parking lot of a shopping center. The off-duty officer followed the car into the parking lot and called 911. As he was making the call, the off-duty officer observed defendant exit the car and stagger into a bar. Shortly thereafter, Nassau County police officers arrived and spoke to the off-duty officer. It was further adduced at trial that, about 20 minutes later, the officers observed defendant exit the bar and stumble across the parking lot, away from his car, using parked cars to support himself. When a Nassau County police officer confronted defendant, that officer observed that defendant had an odor of alcoholic beverage on his breath, slurred speech, and glassy bloodshot eyes. Defendant was arrested and refused to take a breath test.

Defendant testified that his tire had blown out on the Southern State Parkway. He claimed that he had not consumed any alcoholic beverages prior to entering the bar; that he had consumed seven alcoholic drinks in the bar; and that he had left the bar and decided to walk to his home.

On appeal, defendant contends that the District Court improperly denied his motion to dismiss on speedy trial grounds pursuant to CPL 30.30 because the People's declarations of readiness for trial were illusory in that the People were unable to locate the bartender at the bar [*2]where, defendant testified, he had consumed alcohol. However, since there was no evidence that the bartender's testimony was essential to the People's case, the fact that the People were unable to locate the bartender did not affect their readiness for trial (see e.g. People v Caussade, 162 AD2d 4, 12 [1990] [total familiarity with the facts of the case and interviews with all of the witnesses are not essential predicates for expressing a genuine statement of present readiness under CPL 30.30]). Consequently, defendant's motion was properly denied.

Contrary to defendant's contention, the District Court did not improperly admit into evidence a statement he had made to an officer which was not included as part of the CPL 710.30 notice provided by the People. The relevant statement was made in the same conversation as the statements of which the People provided notice to defendant, and was entirely consistent with those statements (see CPL 710.30; People v Cabrera, 63 AD3d 1176 [2009]; People v Garcia, 290 AD2d 299, 300 [2002]; see also People v Bennett, 56 NY2d 837 [1982]). The court also did not improperly admit into evidence a videotape of defendant's refusal to take a breath test since the officer who had the conversation with defendant depicted on the videotape testified that the videotape was a fair and accurate depiction of defendant's refusal to take the breath test, the videotape was made at the time of defendant's refusal, and the videotape was a complete and accurate record of defendant's refusal. Consequently, a proper foundation for the admission of the videotape into evidence was made and, contrary to defendant's contention, chain of custody evidence of the videotape was not required (see People v Ely, 68 NY2d 520, 527-528 [1986]).

Defendant's requests for a missing witness and a circumstantial evidence charge were properly denied. Since defendant failed to show that the bartender could be expected to have knowledge about a material issue and to testify in his favor, he was not entitled to a missing witness charge (see People v Savinon, 100 NY2d 192, 196-197 [2003]; People v Gonzalez , 68 NY2d 424, 427 [1986]). Even if defendant had met this burden, the People demonstrated that the bartender had no knowledge of whether defendant drove while intoxicated and she was not under the People's " control' such that [s]he would not be expected to testify in [their] favor" (Gonzalez, 68 NY2d at 428). In addition, because most of the evidence adduced to establish the elements of driving while intoxicated was supported by the direct testimony of the off-duty officer, a circumstantial evidence charge was not required (see People v Daddona, 81 NY2d 990, 992 [1993]; People v Barnes, 50 NY2d 375, 380 [1980]).
Defendant also contends that the trial court improperly denied his application for a "directed verdict" since the evidence was not sufficient to support a finding of probable cause for his arrest. This contention, however, is unpreserved for appellate review as defendant failed to make this specific objection at trial (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]), and we decline to review it in the interest of justice. Defendant correctly argues that the Nassau County police officer's testimony regarding what the off-duty officer had told him about observing defendant driving on the parkway was hearsay and should not have been allowed into evidence. Nevertheless, under the circumstances presented, since the off-duty officer had already provided testimony regarding his observations, said error was harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230 [1975]).Accordingly, the judgment of conviction is affirmed.

Tanenbaum, J.P., Molia and LaCava, JJ., concur. [*3]
Decision Date: June 29, 2010