People v. Burdick
| Decision Date | 24 November 1999 |
| Citation | 266 A.D.2d 711,699 N.Y.S.2d 173 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>WAYNE J. BURDICK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mikoll, J. P., Crew III, Yesawich Jr. and Mugglin, JJ., concur.
On May 31, 1997, while on patrol in a marked police vehicle, State Troopers Brian Di Lorenzo and James Gregory observed an automobile traveling above the posted rate of speed cross the center line of the road several times. After following the vehicle and obtaining a "pace" indicating that its speed was approximately 75 miles per hour, Di Lorenzo activated the overhead lights. Defendant's vehicle swerved to the right, overcorrected, swerved to the left and then spun off the road into a field. Both Di Lorenzo and Gregory approached the vehicle. Since Gregory was a trainee, Di Lorenzo advised him to approach the passenger's side while he approached the driver's side. After advising defendant to step out of the vehicle, Di Lorenzo observed that he was not wearing a seat belt, was glassy eyed, unsteady on his feet and emitting a strong odor of an alcoholic beverage. Upon his pat frisk, a small bag of marihuana and a marihuana pipe was found. Defendant was thereafter taken into police custody and transported to the barracks. After submitting to and failing field sobriety tests, he refused to submit to an alcohol prescreening or breathalyzer test.
On November 17, 1997, defendant was indicted and charged with the crimes of driving while intoxicated, aggravated unlicenced operation of a motor vehicle and with the violations of failure to keep right, speeding, refusal to submit to a chemical test, failure to use a safety belt and unlawful possession of marihuana. At trial only two witnesses testified; the prosecution presented the testimony of Di Lorenzo while defendant presented that of Ralph Ridgeway, a mechanical engineer.
County Court dismissed the violation of failing to keep right. Following the close of defendant's case, the court conducted a charge conference wherein defendant's request for a missing witness charge pertaining to Gregory was rejected. It further denied defense counsel's motion for a mistrial predicated, in part, on the court's propounding of questions to the defense expert. After the charge was completed, defense counsel posed no exceptions or requests, despite specific query by County Court. Defendant was found guilty on the counts of driving while intoxicated, aggravated unlicenced operation, speeding, refusal to submit to a chemical test, failure to use a safety belt and unlawful possession of marihuana.[1] Defendant appeals.
In assessing whether the trial evidence was legally sufficient to establish defendant's guilt, we find, considering the proof in a light most favorable to the prosecution (see, People v Grenier, 250 AD2d 874, lv denied 92 NY2d 898), 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 * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime [s] charged" (People v Bleakley, 69 NY2d 490, 495, lv denied after remand 72 NY2d 856). The results of the field sobriety tests administered by Di Lorenzo, coupled with his description of defendant's demeanor at the time of the incident, supported a conviction on a charge of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). His further testimony that defendant refused to submit to a chemical test, despite being warned of the consequences of his failure to do so, as well as his personal observations of defendant when he first approached the vehicle sufficiently supported the verdict convicting defendant of both a refusal to submit to a chemical test (Vehicle and Traffic Law § 1194 [2]) and the charge of failure to use...
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