People v. Bratcher

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KANE; MIKOLL; KANE
• Citation: People v. Bratcher, 560 N.Y.S.2d 516, 165 A.D.2d 906 (N.Y. App. Div. 1990)
• Decision Date: 13 September 1990
• Parties: The PEOPLE of the State of New York, Respondent, v. Galvester J. BRATCHER, Appellant.

Page 516

560 N.Y.S.2d 516

165 A.D.2d 906

The PEOPLE of the State of New York, Respondent, v. Galvester J. BRATCHER, Appellant.

Supreme Court, Appellate Division Third Department.

Sept. 13, 1990.

Joseph T. Pondolfino, Oneonta, for appellant.

Robert P. Nydam, Dist. Atty., Cooperstown, for respondent.

Before KANE, J.P., and WEISS, MIKOLL, LEVINE and MERCURE, JJ.

MIKOLL, Justice.

Appeal from a judgment of the County Court of Otsego County (Mogavero, Jr., J.), rendered September 26, 1988, upon a verdict convicting defendant of the crime of operating a motor vehicle while under the influence of alcohol.

Defendant was charged in a one-count indictment returned by the Grand Jury with the crime of operating a motor vehicle while under the influence of alcohol, a felony, in violation of Vehicle and Traffic Law § 1192(3). He was tried before a jury and found guilty as charged. County Court thereafter imposed a sentence of 1 1/3 to 4 years' imprisonment, a $500 fine and a $10 surcharge.

On appeal defendant contends that County Court erroneously (1) dismissed his habeas corpus applications, (2) received evidence of his refusal to take a chemical test since he was not properly advised of the results of the failure to submit to such test, (3) failed to find that defendant was arrested without probable cause, and (4) deprived defendant of a fair trial by the statements and questions of the court. Defendant also argues that the verdict was against the weight of the evidence. Defendant's arguments for reversal are without merit. The judgment of conviction should be affirmed.

In view of defendant's incarceration pursuant to his conviction and sentence, his appeal from the denial of his writs of habeas corpus made on May 18, 1988 and May 23, 1988 is now moot (see, People ex rel. Sostre v. Tutuska, 31 A.D.2d 737, 297 N.Y.S.2d 189, lv. denied, 23 N.Y.2d 646, 299 N.Y.S.2d 1027, 247 N.E.2d 499; see also, People ex rel. London v. Baschnagel, 100 A.D.2d 690, 473 N.Y.S.2d 353). As to the receipt into evidence of defendant's refusal to submit to the chemical test, there was ample evidence presented from which the jury could find that defendant was given clear unequivocal warning of the effect of his refusal to submit to the chemical test and, thus, such evidence was properly received (Vehicle and Traffic Law § 1194[1]; People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584, appeal dismissed, 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127). Defendant's refusal to breathe into the Intoxilyzer after being advised that his first attempt was inadequate to show a reading, together with proof that the machine was in good working order, was sufficient to constitute a refusal (see, People v. Adler, 145 A.D.2d 943, 536 N.Y.S.2d 315, lv. denied, 73 N.Y.2d 919, 539 N.Y.S.2d 304, 536 N.E.2d 633)....