People v. Marvin

• Decision Date: 29 June 2018
• Docket Number: 800,KA 16–00188
• Citation: 80 N.Y.S.3d 787,162 A.D.3d 1744
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth J. MARVIN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1744
80 N.Y.S.3d 787

The PEOPLE of the State of New York, Respondent,
v.
Kenneth J. MARVIN, Defendant–Appellant.

800
KA 16–00188

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

Entered: June 29, 2018

80 N.Y.S.3d 788

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Ontario County Court (Stephen D. Aronson, A.J.), rendered December 3, 2015. The judgment convicted defendant, upon a jury verdict, of felony driving while intoxicated, aggravated driving while intoxicated, reckless driving, criminal mischief in the fourth degree and leaving the scene of a property damage incident without reporting.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, felony driving while intoxicated ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ) and aggravated driving while intoxicated ( § 1192[2–a][a] ). Defendant's contention that County Court should have precluded certain statements of defendant because they were not included in the People's CPL 710.30 notice is unpreserved for our review because defendant did not object to the admission of those statements on that ground (see People v. Davis, 118 A.D.3d 1264, 1266, 987 N.Y.S.2d 537 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). In any event, defendant moved for and was granted a hearing on the noticed statements, and during the hearing a deputy testified about the unnoticed statements at issue on appeal. Defendant therefore " ‘waived preclusion on the ground of lack of notice because [he] was given a full opportunity to be heard on the voluntariness of [those] statement[s] at the suppression hearing’ " ( id. ).

Defendant's contention that he was denied a fair trial because the prosecutor's questioning of a prosecution witness improperly implied that defendant had a duty to prove his innocence by naming someone other than himself as the driver of the vehicle is also unpreserved for our review (see CPL 470.05[2] ). The court sustained defense counsel's objections to the prosecutor's questions and provided a curative instruction "that, in the absence of further objection or a request for a mistrial, ‘must be deemed to have corrected the error[ ] to the defendant's satisfaction’ " ( People v. Terborg, 156 A.D.3d 1320, 1321, 67 N.Y.S.3d 730 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.2d 288, 102 N.E.3d 1069 [2018], quoting People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ). Further, the jury is presumed to have followed the court's curative instructions (see People v. Allen, 78...