People v. Carota

• Decision Date: 29 March 2012
• Citation: 2012 N.Y. Slip Op. 02346,941 N.Y.S.2d 302,93 A.D.3d 1072
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert CAROTA Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02346

93 A.D.3d 1072

941 N.Y.S.2d 302

The PEOPLE of the State of New York, Respondent,

v.Robert CAROTA Jr., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 29, 2012.

Joseph Nalli, Fort Plain, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

STEIN, J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered September 15, 2010, upon a verdict convicting defendant of the crime of driving while intoxicated.

In January 2009, defendant was stopped in the early morning hours by Glens Falls Police Officer Daniel Habshi, after he observed defendant fail to stop at a stop sign, make a right-hand turn without first signaling and then proceed to drive with his vehicle straddling two lanes at once. When Habshi approached the vehicle, he smelled a strong odor of alcohol, asked defendant to step out of his vehicle, and then administered five field sobriety tests to defendant, all of which indicated that defendant was intoxicated. Defendant refused to submit to an Alko-sensor test and Habshi ultimately placed him under arrest for driving while intoxicated (hereinafter DWI). Defendant was transported to the police station, where Habshi read him his Miranda rights and a DWI warning. Defendant thereafter refused to submit to a chemical/breathalyzer test, insisting that he wanted a blood test instead. Defendant was subsequently indicted on a felony DWI charge ( see Vehicle and Traffic Law § 1192[3] ).¹ A Dunaway/Huntley hearing was held and, after a jury trial, defendant was found guilty as charged. County Court sentenced defendant to a prison term of 1 1/3 to 4 years. Defendant now appeals. Because we agree with defendant's contention that County Court erred in denying his request to submit to the jury the lesser included offense of driving while ability impaired (hereinafter DWAI) pursuant to Vehicle and Traffic Law § 1192(1), we reverse.

Contrary to defendant's contentions, we are satisfied that his conviction was supported by legally sufficient evidence and was in accord with the weight of the evidence. Vehicle and Traffic Law § 1192(3) provides that “[n]o person shall operate a motor vehicle while in an intoxicated condition.” In this regard, a driver is intoxicated when he or she has “voluntarily consumed alcohol to the extent that he [or she] is incapable of employing the physical and mental abilities which he [or she] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” ( People v. Cruz, 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979], appeal dismissed 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254 [1980]; see People v. Pierce, 268 A.D.2d 883, 883, 704 N.Y.S.2d 160 [2000], lv. denied 94 N.Y.2d 924, 708 N.Y.S.2d 363, 729 N.E.2d 1162 [2000]; People v. Hagmann, 175 A.D.2d 502, 504, 572 N.Y.S.2d 952 [1991] ).

Here, defendant's theory of the case was that he was impaired because he used marihuana, and he asserts that the evidence presented at trial was insufficient to support the conclusion that he was intoxicated by alcohol. We disagree. The People's evidence included Habshi's testimony that defendant failed to stop at a stop sign, made a right turn without first indicating and then continued to drive with his car in two lanes at once—all of which are violations of the Vehicle and Traffic Law ( see Vehicle and Traffic Law § 1128[a]; § 1163[b]; § 1172[a] ). Habshi further testified that defendant smelled strongly of alcohol and marihuana, his speech was slurred, he had glassy, bloodshot eyes, and he struggled to maintain his balance upon exiting his vehicle. Habshi also testified that defendant was unable to successfully complete any of the five field sobriety tests that Habshi administered—and the transcript of the tape recording made by defendant at the time supports this testimony. In addition, defendant refused several times to take a breathalyzer. Moreover, after being advised of his Miranda rights, defendant admitted that he had been drinking prior to the traffic stop, although he claimed he had consumed only two beers. Defendant's former girlfriend, Marie Crandall, also testified that he smelled of alcohol when she saw him at the jail several hours after he was arrested. In a recorded telephone call with Crandall, defendant stated, among other things, that he had been “partying” since midnight prior to his arrest.

Viewing the evidence in the light most favorable to the People, we conclude that “there is [a] valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” that defendant was intoxicated ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; see People v. Johnson, 70 A.D.3d 1188, 1189, 896 N.Y.S.2d 199 [2010] ). Combined with defendant's concession that he was operating a motor vehicle, we find the evidence was legally sufficient to support defendant's conviction of DWI under Vehicle and Traffic Law § 1192(3) ( see People v. Johnson, 70 A.D.3d at 1189, 896 N.Y.S.2d 199; People v. Owens, 45 A.D.3d 1058, 1059, 845 N.Y.S.2d 563 [2007]; People v. Hamm, 29 A.D.3d 1079, 1080, 814 N.Y.S.2d 403 [2006] ).

Despite certain inconsistencies between Habshi's trial testimony and other evidence—including, among other things, Habshi's grand jury testimony and certain written reports he completed—and the absence of evidence of defendant's blood alcohol content, defendant's conviction was not against the weight of the evidence. Any inconsistencies in relation to Habshi's testimony were minor and “ ‘were thoroughly aired during cross-examination’ ” ( People v. Hamm, 29 A.D.3d at 1080, 814 N.Y.S.2d 403, quoting People v. Howard, 299 A.D.2d 647, 648, 749 N.Y.S.2d 621 [2002], lv. denied 99 N.Y.2d 629, 760 N.Y.S.2d 110, 790 N.E.2d 284 [2003]; see People v. Silvestri, 34 A.D.3d 986, 987, 823 N.Y.S.2d 791 [2006] ). Defense counsel also cross-examined Habshi regarding, among other things, the manner in which he administered the field sobriety tests, which defendant alleged was improper in various respects. In addition, the jury heard a tape recording made by defendant of the traffic stop and defendant's testimony that his intoxicated appearance and behavior were caused by his use of marihuana.

The jury had a full opportunity to evaluate the credibility of the witnesses ( see People v. Hamm, 29 A.D.3d at 1081, 814 N.Y.S.2d 403), and “clearly did not accept or credit defendant's explanation for his intoxicated appearance” ( People v. Johnson, 70 A.D.3d at 1190, 896 N.Y.S.2d 199). Furthermore, inasmuch as the lack of evidence of defendant's blood alcohol content was the result of his refusal to submit to a breathalyzer test, the jury was entitled to draw a negative inference against him ( see Vehicle and Traffic Law § 1194[2][f]; People v. D'Angelo, 244 A.D.2d 788, 789, 665 N.Y.S.2d 713 [1997], lv. denied 91 N.Y.2d 890, 669 N.Y.S.2d 5, 691 N.E.2d 1031 [1998] ). Viewing the evidence in a neutral light, according deference to the jury's credibility determinations, and “weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Spencer, 89 A.D.3d 1156, 1157, 932 N.Y.S.2d 233 [2011] [internal quotation marks and citations omitted]; accord People v. Johnson, 70 A.D.3d at 1189–1190, 896 N.Y.S.2d 199), we find that defendant's conviction was not against the weight of the evidence.

In order to warrant the submission to the jury of the charge of DWAI pursuant to Vehicle and Traffic Law § 1192(1) as a lesser included offense of the DWI charge, defendant must “establish that it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct” ( People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 [1995] ) and that, viewing the evidence in the light most favorable to defendant ( see People v. Hernandez, 42 A.D.3d 657, 658–659, 839 N.Y.S.2d 592 [2007] ), there is “a reasonable view of the evidence to support a finding that ... defendant committed the lesser offense but not the greater” ( People v. Van Norstrand, 85 N.Y.2d at 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275; see CPL 1.20[37]; 300.50[1], [2]; People v. Scarborough, 49 N.Y.2d 364, 368, 426 N.Y.S.2d 224, 402 N.E.2d 1127 [1980]; People v. Johnson, 45 N.Y.2d 546, 549, 410 N.Y.S.2d 569, 382 N.E.2d 1345 [1978]; accord People v. Heslop, 48 A.D.3d 190, 193–194, 849 N.Y.S.2d 301 [2007], lv. denied 10 N.Y.3d 935, 862 N.Y.S.2d 342, 892 N.E.2d 408 [2008] ). “[A] refusal to charge a lesser included crime is warranted only where every possible hypothesis but guilt of the higher crime [is] excluded” ( People v. Johnson, 45 N.Y.2d at 549, 410 N.Y.S.2d 569, 382 N.E.2d 1345 [internal quotation marks and citations omitted]; see People v. Hernandez, 42 A.D.3d at 659, 839 N.Y.S.2d 592).

In this case, there is no dispute that the first prong of the test was met. As to the second prong, defendant admitted that he had consumed two beers prior to his arrest and that his ability to operate a motor vehicle was impaired, but alleged that such impairment was caused by his additional use of marihuana, not by the alcohol he consumed. On the other hand, Habshi's testimony was that defendant was intoxicated, not merely impaired, due to his consumption of alcohol. However, a reasonable view of the evidence could support a finding that defendant was impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1), but not intoxicated ( see People v. Wimberly, 86 A.D.3d 806, 808, 927 N.Y.S.2d 229 [2011], lv. denied 18 N.Y.3d 863, 938 N.Y.S.2d 870, 962 N.E.2d 295 [2011]; People v. Bowman, 79 A.D.3d 1368, 1370, 912 N.Y.S.2d 344 [2010], lv....