People v. Anderson

• Citation: 932 N.Y.S.2d 561,2011 N.Y. Slip Op. 07759,89 A.D.3d 1161
• Parties: The PEOPLE of the State of New York, Respondent,v.Kenneth L. ANDERSON, Appellant.
• Decision Date: 03 November 2011
• Court: New York Supreme Court Appellate Division

89 A.D.3d 1161
932 N.Y.S.2d 561
2011 N.Y. Slip Op. 07759

The PEOPLE of the State of New York, Respondent,
v.
Kenneth L. ANDERSON, Appellant.

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

Nov. 3, 2011.

[932 N.Y.S.2d 562]

John T. Casey Jr., Troy, for appellant.P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.Before: PETERS, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.SPAIN, J.

[89 A.D.3d 1161] Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 23, 2009 in Albany County, upon a verdict convicting defendant of the crime of aggravated unlicensed operation of a motor vehicle in the first degree and the traffic infraction of driving while ability impaired.

In 2009, in the City of Cohoes, Albany County, defendant was stopped by police officers who had observed him driving down the center of a two-lane street. Defendant refused a field sobriety test and, based on his unsteady gait, appearance and the smell of alcohol on his breath, the officers arrested him. At the police station, after he was notified that a refusal to consent to a chemical test of his blood alcohol or drug content could be used as evidence against him, defendant refused such testing.

Thereafter, defendant, whose license already had been revoked after a 2004 driving while intoxicated conviction in accordance with Vehicle and Traffic Law § 1192(3), was indicted and charged with driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree ( see Vehicle and Traffic Law § 511[1][a]; [2][a][ii]; [3][a][i] ). In accordance with CPL 200.60(3)(a), to preclude the People from introducing evidence at trial of that prior conviction to prove that defendant knew or had reason to know that his license had been revoked—

[932 N.Y.S.2d 563]

an element of aggravated unlicensed operation of a motor vehicle—defendant admitted the 2004 driving while intoxicated conviction. Following a Sandoval hearing, Supreme Court held that if defendant testified at trial, the People could impeach him by asking if he had been convicted of a misdemeanor in 2004, but not as to other specifics of the conviction, [89 A.D.3d 1162] nor could they inquire as to another driving while intoxicated conviction from 2004. Defendant testified at trial.

Defendant was convicted after the jury trial of the lesser included offense of driving while ability impaired and aggravated unlicensed operation of a motor vehicle in the first degree, and was sentenced to an aggregate prison term of 1 1/3 to 4 years. Defendant now appeals, and we affirm.

It is now well settled that a defendant's refusal to submit to a chemical test is admissible to demonstrate consciousness of guilt “provided the People show that ‘the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal’ ” ( People v. Richburg, 287 A.D.2d 790, 791, 731 N.Y.S.2d 256 [2001], lv. denied 97 N.Y.2d 687, 738 N.Y.S.2d 303, 764 N.E.2d 407 [2001], quoting Vehicle and Traffic Law § 1194[2][f]; see People v. Thomas, 46 N.Y.2d 100, 108–109, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d...