People v. Gallup

• Citation: 302 A.D.2d 681,755 N.Y.S.2d 498
• Court: New York Supreme Court Appellate Division
• Decision Date: 13 February 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>GLEN J. GALLUP, Appellant.

302 A.D.2d 681

755 N.Y.S.2d 498

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.GLEN J. GALLUP, Appellant.

Spain, J.

Decided February 13, 2003.

Crew III, J.P., Carpinello, Lahtinen and Kane, JJ., concur.

Spain, J.

Following a jury trial, defendant was convicted of driving while intoxicated (hereinafter DWI) as a felony (see Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and certain traffic infractions (see Vehicle and Traffic Law § 306 [b] [uninspected vehicle]; § 1180 [d] [speeding]; § 1227 [1] [consumption of alcohol in motor vehicle]). At trial, the only witness to testify was the sergeant with the Village of Cobleskill Police Department who, while on routine patrol at approximately 1:45 A.M. on July 3, 2000, observed defendant driving on a public road toward him at a speed exceeding the posted 30 mile-per-hour limit, calculated at 47 miles per hour on radar. After following defendant for about one-half mile, the sergeant activated his overhead lights and defendant complied by pulling over to the side of the road. From his vehicle, the sergeant observed a can being thrown out of the passenger window of defendant's vehicle. The sergeant exited his vehicle and, on approach, he observed that it was a can of beer with liquid pouring out of it. When asked if he had anything to drink other than the beer thrown out of the vehicle, defendant responded that he had consumed a couple of beers; he had difficulty producing his license and he was unable to locate his registration and insurance card. When defendant exited his vehicle, the sergeant observed that his eyes were bloodshot and watery, that he was unsteady and unbalanced, although able to support himself, and detected a very strong odor of alcohol emanating from defendant's breath.

The sergeant—a 19-year veteran with, inter alia, extensive training and certification as an instructor in standardized field sobriety testing—demonstrated and then administered two field sobriety tests, the horizontal gaze nystagmus test (hereinafter HGN test) in which a pen is passed across the eyes to observe eye movements, which the sergeant concluded defendant failed on all six points, and the walk and turn test, which defendant was not able to execute properly. Defendant refused to take a third test, the one-leg stand test. Concluding that defendant was intoxicated, the sergeant arrested defendant and recited the DWI warnings, which were recited two more times within a half hour, and then Miranda warnings. Defendant thereafter refused three times to submit to a chemical test to determine his blood alcohol content. Upon his convictions, defendant was sentenced to an indeterminate term of 2 1/3 to 7 years' imprisonment, and now appeals.

Defendant's contention that the verdict on the DWI charge was against the weight of the evidence because it was based upon a single witness's brief observations is unpersuasive. While a different verdict would not have been unreasonable, we find that the jury acted reasonably in crediting the highly experienced sergeant's account and professional opinion and did not in any manner fail to give the evidence the weight it should be accorded (see People v Bleakley, 69 NY2d 490, 495). The odor of alcohol on defendant's breath, his watery and bloodshot eyes and unsteadiness, his admission to consuming beers and attempt to dispose of an open beer can, his failure on two field tests and his persistent refusal to take a chemical test despite warnings—reflecting consciousness of guilt—all support the conclusion that defendant was intoxicated (see Vehicle and Traffic Law § 1194 [2] [f]; People v Ardila, 85 NY2d 846, 847; People v Cruz, 48 NY2d 419, 428, appeal dismissed 446 US 901; People v Hasenflue, 252 AD2d 829, 831-832, lv denied 92 NY2d 982; People v D'Angelo, 244 AD2d 788, lv denied 91 NY2d 890; see also People v Dougal, 266 AD2d 574, 575, lv denied 94 NY2d 879).

Moreover, a review of the record as a whole does not support defendant's contentions that his trial counsel provided less than meaningful representation (see People v Henry, 95 NY2d 563, 565; People v Baldi, 54 NY2d 137, 147). At trial, defense counsel, among other things, made persuasive opening and closing statements and effectively cross-examined the sergeant, the sole witness. In so doing, counsel pursued a cogent defense theory that the five-minute interval between the sergeant's stop of defendant's vehicle and his arrest of defendant provided inadequate time or opportunity to observe defendant to support his conclusion that defendant was intoxicated. Counsel emphasized that defendant's driving had not been erratic, that he immediately pulled over and that there were innocuous explanations for defendant's behavior, including fatigue, nervousness, lack of coordination and the glaring police vehicle lights, and that the refusal to take the chemical test may have resulted from confusion between DWI warnings and Miranda warnings. Counsel successfully obtained a charge on a lesser included offense, ultimately rejected by the jury, and while he did not object to the scientific reliability of the HGN test, he elicited on cross-examination that it was not a perfectly accurate indicator of intoxication. Defendant has not demonstrated that counsel's waiver of pretrial motions or absence of trial motions lacked any strategic or legitimate trial strategy or that such motions would have had any merit, and the record supports the inference that defendant was incarcerated pending trial and sought to forego pretrial motion delays and promptly proceed to trial (see People v Rivera, 71 NY2d 705, 709).

Defendant's contention that the People's failure at trial to establish a proper scientific foundation for the HGN test requires a new trial is unpreserved, as defendant did not request a Frye hearing or object to the testimony concerning the administration or results of this test (see CPL 470.05 [2]; People v Wesley, 83 NY2d 417; Frye v United States, 293 F 1013). While this Court in years past has found error in allowing testimony concerning HGN field...