People v. McCombs

• Decision Date: 17 February 2015
• Docket Number: 2012-2439 OR CR
• Citation: 47 Misc.3d 44,2015 N.Y. Slip Op. 25056,6 N.Y.S.3d 903
• Parties: The PEOPLE of the State of New York, Respondent, v. James W. McCOMBS, Appellant.
• Court: New York Supreme Court — Appellate Term

47 Misc.3d 44

6 N.Y.S.3d 903

2015 N.Y. Slip Op. 25056

The PEOPLE of the State of New York, Respondent

v.James W. McCOMBS, Appellant.

2012-2439 OR CR

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Feb. 17, 2015.

Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh (John Ingrassia and Andrew H. Baginski of counsel), for appellant.

Francis D. Phillips, II, District Attorney, Goshen (Robert H. Middlemiss of counsel), for respondent.

PRESENT: IANNACCI, J.P., MARANO and TOLBERT, JJ.

Opinion

Appeal from judgments of the Justice Court of the Town of Crawford, Orange County (Bryan M. Kulak, J.), rendered October 1, 2012. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated (per se) and driving while intoxicated (common law), respectively.

ORDERED that the judgments of conviction are affirmed.

On March 14, 2010, the People charged defendant, in separate simplified traffic informations, with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192[2] ) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192[3] ), respectively, alleging that, on that date, defendant committed the offenses at 2:45 a.m. on Hamilton Road in the Town of Crawford. The People's witness at the jury trial testified that defendant had been discovered seated in the driver's seat of his vehicle, which was stopped in the middle of the road with its engine idling. Defendant had exhibited numerous indicia of intoxication and failed several roadside physical coordination tests. A subsequent test of his blood alcohol content produced a reading of .08 of one percentum by weight. Defendant was convicted of both charges.

On appeal, defendant argues that the Justice Court should have excused two of the prospective jurors for cause, and that its refusal to do so required defendant to exercise his last peremptory challenge on the first juror before jury selection was completed; that the admission of the breathalyzer calibration and maintenance documentation violated his Confrontation Clause rights; that the court prevented defendant from interposing defenses; and that the court denigrated defense counsel before the jury, threatening to hold a contempt hearing based on alleged misconduct during summations. We disagree with these contentions and affirm the judgments of conviction.

Defendant sought to excuse for cause two jurors, the first of whom expressed her belief that it is wrong to operate a motor vehicle after having consumed any amount of an alcoholic beverage. After stating that she would follow the law as instructed and could be a fair and impartial juror, in response to a final question as to whether she could separate her personal feelings as to what the law should be from accepting the law as given, she replied, “I think so.” The Justice Court declined to dismiss the juror for cause, and the defense used its last peremptory challenge to excuse her. The second juror acknowledged that his son-in-law is a police officer but stated that he never discussed the son-in-law's cases with him. When asked whether, notwithstanding his relationship with his son-in-law, he could be a fair and impartial juror, he replied, “I think so.” The trial court also declined to excuse this juror for cause.

A prospective juror should be excused for cause if he or she exhibits “a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at trial” (CPL 270.20[1] [b] ). However, “where prospective jurors unambiguously state that, despite preexisting opinions that might indicate bias, they will decide the case impartially and based on the evidence, the trial court has discretion to deny the challenge for cause if it determines that the juror's promise to be impartial is credible” (People v. Arnold, 96 N.Y.2d 358, 362–363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ). In making that determination, a court “must look not to characterizations or snippets of the voir dire but to the full record of what the challenged jurors—sworn to speak truthfully—actually said” (People v. Shulman, 6 N.Y.3d 1, 28, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005] ; People v. Blyden, 55 N.Y.2d 73, 78, 447 N.Y.S.2d 886, 432 N.E.2d 758 [1982] [“in considering whether such statements are unequivocal, the juror's testimony should be taken as a whole”] ). A prospective juror's response, “I think so,” to a query as to impartiality does not require an inference of equivocation. In People v. Chambers, 97 N.Y.2d 417, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002], the Court of Appeals, noting that “[f]or more than a century, a juror's use of the word think' has been challenged as equivocal,” held that such usage “is not a talismanic word that automatically makes a statement equivocal” (id. at 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 ); rather, such an expression should be “taken in context and [the voir dire considered] as a whole” (id. ; see also People v. Shulman, 6 N.Y.3d at 28, 809 N.Y.S.2d 485, 843 N.E.2d 125 ). Here, considering the voir dire as a whole, we find that the jurors otherwise affirmatively and credibly stated that they could be fair and impartial, and that their use of this language, both on a single occasion, did not render those assurances equivocal. Moreover, the first juror's stated preference for a stricter rule against drinking and driving than is provided by law did not require her dismissal for cause. She expressed her feelings in terms of her own conduct and repeatedly stated that she understood that the law does not penalize such conduct and that she could accept and apply the law as instructed by the court. Finally, considering his voir dire statements as a whole, the fact that the second juror had a relative in law enforcement did not require that he be excused for cause. Without more, mere acquaintance with someone in law enforcement is not a ground to excuse a juror for cause (People v. Furey, 18 N.Y.3d 284, 288, 938 N.Y.S.2d 277, 961 N.E.2d 668 [2011] [“a prospective juror who had relatives in law enforcement—but no personal or social relationships with any of the testifying police officers—was not per se excludable for cause”]; see e.g. People v. Green, 108 A.D.3d 782, 784, 968 N.Y.S.2d 685 [2013] [“a juror's relationship with a [nontestifying] police officer ... [is] insufficient to constitute implied bias”] ).

The trial court's evidentiary rulings were proper. Confrontation Clause challenges (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ) to the admission of a breath testing machine's calibration and maintenance documents under the business records exception to the hearsay rule (CPLR 4518 ) have been considered and rejected (People v. Pealer, 20 N.Y.3d 447, 962 N.Y.S.2d 592, 985 N.E.2d 903 [2013] ; People v. Lent, 29 Misc.3d 14, 908 N.Y.S.2d 804 [App.Term, 9th & 10th Jud.Dists.2010] ; People v. Lebrecht, 13 Misc.3d 45, 823 N.Y.S.2d 824 [App.Term, 9th & 10th Jud.Dists.2006] ). Further, although the trial court deemed inadmissible on relevancy grounds defendant's documentary proof of calibrations and repairs performed on the breathalyzer instrument prior to the calibration that immediately preceded defendant's test and those performed after defendant's test, the court permitted defense counsel, over the People's objection, to convey to the jury the contents of those documents via the People's witness, and, by extension, defendant's argument that they implicate the operability of the instrument at the time of the test.

Finally, the court's reference, before the jury, to the possibility of a contempt hearing resulted from defense counsel's repeated, improper attempts to argue on summation, in effect, that the absence of...