People v. Colburn

• Citation: 123 A.D.3d 1292,998 N.Y.S.2d 257,2014 N.Y. Slip Op. 08875
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael COLBURN, Appellant.
• Decision Date: 18 December 2014
• Court: New York Supreme Court Appellate Division

123 A.D.3d 1292
998 N.Y.S.2d 257
2014 N.Y. Slip Op. 08875

The PEOPLE of the State of New York, Respondent
v.
Michael COLBURN, Appellant.

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

Dec. 18, 2014.

998 N.Y.S.2d 260

John A. Cirando, Syracuse, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and LYNCH, JJ.

Opinion

LYNCH, J.

123 A.D.3d 1292

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered January 9, 2012, upon a verdict convicting defendant of the crimes of aggravated driving while intoxicated and driving while intoxicated, and of the traffic infractions of leaving the scene of an accident and failure to keep right.

Defendant was found guilty of aggravated driving while intoxicated, driving while intoxicated, leaving the scene of an accident and failure to keep right after a jury determined that he was intoxicated when he drove his car into a ditch on privately owned residential property, then left the car in the ditch after he was unable to drive the car back onto the roadway. He was sentenced to two concurrent prison terms of 1 ? to 4 years for the aggravated driving while intoxicated and driving while intoxicated charges and 15 days in jail for

998 N.Y.S.2d 261

leaving the scene of the accident. County Court also imposed fines and surcharges. Defendant appeals and we affirm.

Initially, defendant contends that the verdict was against the weight of the evidence.¹ “Inasmuch as a different verdict would not have been unreasonable, we must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Westcott, 84 A.D.3d 1510, 1511, 923 N.Y.S.2d 763 [2011] [internal quotation

123 A.D.3d 1293

marks and citations omitted] ). To support the verdict of aggravated driving while intoxicated, the People were required to prove that defendant was operating a motor vehicle with a blood alcohol content (hereinafter BAC) of .18% or more (see Vehicle and Traffic Law § 1192[2–a] ). As for the driving while intoxicated charge, the evidence must show that defendant was in an intoxicated condition when he operated the vehicle (see Vehicle and Traffic Law § 1192[3] ). The charge of leaving the scene of an accident involving property damage without reporting required the People to prove that defendant knowingly caused damage to real or personal property while operating a motor vehicle and left the accident scene without providing certain information to the damaged party (see Vehicle and Traffic Law § 600[1][a] ). A verdict for failure to keep right must be supported with evidence that the defendant failed to keep to the right of a roadway that was of sufficient width (see Vehicle and Traffic Law § 1120[a] ). While defendant concedes that his BAC exceeded the statutory limit, his primary argument with regard to the aggravated driving while intoxicated, driving while intoxicated, and failure to keep right convictions is that he was not driving and that he did not become intoxicated until after the accident. In this regard, defendant testified that an individual named Chip, who he had not seen or spoken to since the accident, was driving the car when it went into the ditch.

According deference to the jury's credibility determinations, we do not believe that it was unreasonable for the jury to find that defendant was operating the vehicle in an intoxicated state. A defendant need not be driving to operate a vehicle for purposes of the Vehicle and Traffic Law; it is enough if the evidence shows that he or she is behind the wheel with the engine running (see People v. Westcott, 84 A.D.3d at 1512, 923 N.Y.S.2d 763 ). The testimony was that when defendant arrived on Marcy Lamica's doorstep to request assistance with getting the car out of the ditch, he was alone and smelled of alcohol. In addition to the testimony of Lamica and her sister-in-law describing his efforts, defendant acknowledged that he was behind the wheel of the car, and that the car was running with the wheels spinning as he attempted to drive the car out of the ditch. These factors are sufficient to establish that defendant was operating a motor vehicle on a public highway (see People v. Beyer, 21 A.D.3d 592, 594, 799 N.Y.S.2d 620 [2005], lv. denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2005] ). Similarly, we discern no reason

998 N.Y.S.2d 262

to disturb the jury's determination that defendant was intoxicated. The jury was entitled to credit the breathalyzer test evidence that defendant's BAC was in excess of .18% following his arrest, the witnesses' testimony with regard to defendant's slurred speech, unsteady movements, inability to stand in the ditch and

123 A.D.3d 1294

that he smelled of alcohol. The jury was also entitled to reject defendant's claim that he had aggravated an old injury and consumed a quantity of bourbon between the time the car went into the ditch and when he was apprehended shortly thereafter, approximately a half of a mile away (see People v. King, 77 A.D.3d 1173, 1174–1175, 910 N.Y.S.2d 238 [2010] ; People v. Owens, 45 A.D.3d 1058, 1059, 845 N.Y.S.2d 563 [2007] ; People v. Arnold, 2 A.D.3d 975, 975, 768 N.Y.S.2d 244 [2004], lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362 [2004] ). We also reject defendant's claim that the conviction for leaving the scene of an accident was against the weight of the evidence. Under the circumstances presented, the jury was entitled to conclude that defendant did not give the required information to Lamica before leaving the accident scene (see Vehicle and Traffic Law § 600[1][a] ).

Defendant also claims that County Court committed reversible error when it denied the People's challenge for cause to juror No. 38. As is relevant here, a challenge for cause may be made where a prospective juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20[1] [b] ). During voir dire, juror No. 38 intimated that he knew someone who was a victim of a crime involving alcohol, that he was not happy with the outcome of the case and that he decided to go into law enforcement as a result of his experience. While we recognize such a response warranted further inquiry to secure the juror's express and unequivocal assurance of impartiality (see People v. Young, 119 A.D.3d 970, 971, 988 N.Y.S.2d 720 [2014] ), the failure of counsel and the court to conduct this inquiry does not, under the circumstances presented, constitute reversible error. Reversible error occurs only if, at the time of the denial, the defendant had exhausted his or her peremptory challenges, or the defendant is forced to exercise a peremptory challenge against the prospective juror and then exhausts his or her peremptory challenges before the end of jury selection (see People v. Lynch, 95 N.Y.2d 243, 248, 715 N.Y.S.2d 691, 738 N.E.2d 1172 [2000] ; People v. Culhane, 33 N.Y.2d 90, 97, 350 N.Y.S.2d 381, 305 N.E.2d 469 [1973] ; People v. Russell, 288 A.D.2d 759, 760, 733 N.Y.S.2d 292 [2001] ). The anomaly here is that defendant did not join in the People's challenge for cause and, although his peremptory challenges were eventually exhausted, defendant did not use an available peremptory challenge for juror No. 38 when the juror was seated (see People v. Russell, 288 A.D.2d at 760, 733 N.Y.S.2d 292 ; People v. Dehler, 216 A.D.2d 643, 643, 628 N.Y.S.2d 413 [1995], lv. denied 86 N.Y.2d 734, 631 N.Y.S.2d 615, 655 N.E.2d 712 [1995] ). In our view, even if the court denied the challenge for cause in error, it was not reversible error.

We also reject defendant's claim that two sworn jurors should have been dismissed because they were “grossly unqualified

123 A.D.3d 1295

to serve” (CPL 270.35[1] ). “A juror will be deemed to be grossly unqualified to serve only when, after conduct[ing] a probing, tactful inquiry into the specific circumstances, it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict” (People v. Reichel, 110 A.D.3d 1356, 1358, 975 N.Y.S.2d 470 [2013], lv. denied 22 N.Y.3d 1090, 981N.Y.S.2d

998 N.Y.S.2d 263

675, 4 N.E.3d 977 [2014] [internal quotation marks and citations omitted] ). As such, “[t]his statutory test places a greater burden upon the moving party than if the juror was challenged for cause” (People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] [internal quotation marks and citation omitted]; see People v. Wlasiuk, 90 A.D.3d 1405, 1409, 935 N.Y.S.2d 709 [2011] ). Accordingly, while a court should generally err on the side...