People v Marconi (Joseph)

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[*1] People v Marconi (Joseph) 2020 NY Slip Op 51483(U) Decided on December 3, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2020
2018-846 W CR

The People of the State of New York, Respondent,


Joseph Marconi, Appellant.

John R. Lewis, for appellant. Westchester County District Attorney (Raffaelina Gianfrancesco and Steven A. Bender of counsel), for respondent.

Appeal from judgments of the City Court of Mount Vernon, Westchester County (Adrian N. Armstrong, J.), rendered June 29, 2017. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated (per se) and driving while intoxicated (common law), respectively, and imposed sentences. The appeal from the judgments of conviction brings up for review an order of that court dated December 2, 2016, denying defendant's motion to suppress evidence.

ORDERED that the judgments of conviction are affirmed.

Defendant was arrested at a checkpoint and charged with aggravated driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2-a] [a]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]). His counsel moved to, among other things, suppress all of the evidence obtained from the search subsequent to the stop of the vehicle defendant was driving, on the ground that the checkpoint that had been set up by the police was unconstitutional. At a hearing, the supervising sergeant testified that, prior to the checkpoint being set up, he had instructed his officers about the objectives of the checkpoint, where it would take place, that every vehicle was to be stopped, and that the officers were to check the drivers' registrations, the vehicles' inspection stickers, and whether the motorists were wearing seat belts. The officers were also instructed to determine whether the drivers were under the influence of drugs or alcohol. Police vehicles were parked on both sides of the checkpoint with their lights activated, traffic cones were placed in the center of the checkpoint, and the officers wore yellow reflective safety vests. The sergeant further testified that there is a written guideline regarding how safety [*2]checks are to be implemented and that he did not consult the manual prior to implementing the safety check, because he was familiar with the guidelines. The City Court found that the checkpoint was operated in a manner that met constitutional requirements and denied the motion to suppress.

At a jury trial, the arresting officer testified that, as defendant's pickup truck came closer to the checkpoint, the truck almost struck an officer. After directing defendant to pull over, the officer noticed the odor of an alcoholic beverage emanating from defendant's breath. Defendant indicated that he was coming from a party where he had been drinking alcoholic beverages. After administering several field sobriety tests, which defendant agreed to take, the officer determined that defendant was at least impaired and transported him to the police station where a chemical breath test was administered to defendant. The results of this test indicated a blood alcohol level of .18 of one percent by weight. During the trial, it was discovered that a video, taken of defendant while he was at the police station, had not been produced, and that, since no request had been made for the recording, it no longer existed because it had been taped over after 30 days. Defense counsel requested an adverse inference charge, and, after off-the-record discussions, the parties stipulated as to the wording of the adverse inference charge. The court, without objection by defense counsel, read the agreed-upon charge to the jury. The jury found defendant not guilty of aggravated driving while intoxicated. However, defendant was found guilty of the lesser included offense of driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law).

On appeal, defendant contends that the evidence should be suppressed on the ground, among others, that the People had failed to establish the constitutionality of the police checkpoint at which defendant had been arrested. In addition, defendant contends that he was denied the effective assistance of counsel because his attorney failed to object to the lack of an adverse inference charge to the jury regarding the missing video evidence and that counsel failed to request a missing witness charge when the People did not call the officer who was almost struck by defendant's vehicle at the checkpoint.

The People met their burden of establishing that the checkpoint had been created and operated in a manner "consistent with the Fourth Amendment and New York Constitution, article I, § 12" (People v Manahan, 23 Misc 3d 134[A], 2009 NY Slip Op 50802[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). The testimony of the supervising sergeant established that the creation and operation of the checkpoint had not been left to the discretion of the officers in the field (see Matter of Muhammad F., 94 NY2d 136, 142 [1999]; People v Mikalsen, 52 Misc 3d 142[A], 2016 NY Slip Op 51197[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]), that every driver had been stopped (see City of Indianapolis v Edmond, 531 US 32, 39 [2000]; Matter of Muhammad F., 94 NY2d at 146; People v Mannix, 63 Misc 3d 131[A], 2019 NY Slip Op 50411[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]), and that lighting and safety concerns, as well as concerns about "fair warning of the existence of the checkpoint," had been addressed (People v Scott, 63 NY2d 518, 526 [1984]).

Among permissible checkpoint objectives is the concern for traffic safety (see People v [*3]Edwards, 101 AD3d 1643, 1644 [2012] [checkpoint proper where police were looking for "registration, inspection, seat belt and other traffic related infractions"]; People v Dugan, 57 AD3d 300, 300 [2008] [same]; People v Burton, 8 AD3d 187, 188 [2004] [same]), and there is no reason to doubt that this concern represented the "primary purpose" of the checkpoint involved herein (People v Jackson, 99 NY2d 125, 129 [2002]; see People v Scott, 63 NY2d at 527 ["deterrence" a legitimate enforcement objective]; cf. People v Velez, 110 AD3d 449, 450 [2013]; People v Trotter, 28 AD3d 165, 169-170 [2006]). Finally, "there is no authority that expressly mandates the promulgation of [written] guidelines" for the arrangement and use of a checkpoint (People v Manahan, 23 Misc 3d 134[A], 2009 NY Slip Op 50802[U], *1). Consequently, the suppression motion was properly denied.

With respect to the adverse inference charge, there were discussions held off the record concerning this charge. As defendant made no motion pursuant to CPL 440.10 to challenge the quality of trial counsel's representation on this ground, we do not have the benefit of the appropriate exploration of dehors the record matters (see People v Jarvis, 25 NY3d 968, 973 [2015]; People v Brown, 45 NY2d 852, 853 [1978]; People v Rana, 48 Misc 3d 130[A], 2015 NY Slip Op 51029[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), in particular, that of trial strategy (see People v Rivera, 71 NY2d 705, 709 [1988]), to which appellate courts of review accord considerable deference (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Satterfield, 66 NY2d 796, 799-800 [1985]). Limiting our review to the on-the-record aspects of this claim, we find that defendant failed to establish that he was deprived of the effective assistance of counsel. We note that the court gave an adverse inference charge with respect to the missing video tape evidence to which counsel agreed.

Moreover, defendant was not deprived of the effective assistance of counsel because his trial counsel failed to request a missing witness charge with respect to the officer who was almost struck by defendant's vehicle. A "missing witness" is an "uncalled witness [who] is knowledgeable about a material issue upon which evidence is already in the case [who] . . . would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and [who] is available to such party" (People v Kitching, 78 NY2d 532, 536 [1991]). In other words, three preconditions would have had to have been met for the trial court to have granted a request for a missing witness charge here: (1) the uncalled witness had knowledge of an issue material to the trial; (2) the witness was available and in the control of the People, the party against whom the inference was sought; and (3) the witness could be expected to provide noncumulative testimony that was favorable to the People (see People v Savinon, 100 NY2d 192, 197 [2003]; People v Locenitt, 157 AD3d 905, 907 [2018]; People v Krupnik, 46 Misc 3d 142[A], 2015 NY Slip Op 50174[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Even assuming that defendant, as the proponent of the missing witness charge, met his initial burden of demonstrating prima facie entitlement thereto, we find that the People established that the uncalled witness's testimony would have been cumulative since Officer Vitelli testified that he observed defendant's vehicle almost striking the uncalled witness police officer at the checkpoint (see People v Smith, 33 NY3d 454 [2019]; People v Samaroo, 137 AD3d 1308, 1309 [2016]; People [*4]v Nelson, 32 Misc 3d 129[A], 2011 NY Slip Op 51303[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). In any event, even assuming error was committed, the error must be deemed harmless beyond a reasonable doubt, in view of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]).

Upon a review of the evidence and the circumstances of this case, insofar as permitted by the existing record (see People v Troche, 81 AD3d 990, 991 [2011]; People v Lopez, 2 AD3d 234 [2003]), and "viewed in totality and as of the time of the representation" (People v Oliveras, 21 NY3d 339, 346 [2013]), we find that defendant was afforded meaningful representation and the effective assistance of counsel under both the New York State Constitution (see People v Benevento, 91 NY2d at 713-714; People v Baldi, 54 NY2d 137, 147 [1981]) and the United States Constitution (see Strickland v Washington, 466 US 668 [1984]).

Accordingly, the judgments of conviction are affirmed.



Paul Kenny

Chief Clerk
Decision Date: December 3, 2020

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