People v. Romano

• Decision Date: 18 November 2021
• Docket Number: 2016-2311 N CR
• Citation: 155 N.Y.S.3d 527 (Table),73 Misc.3d 137 (A)
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert ROMANO, Appellant.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 137 (A)

155 N.Y.S.3d 527 (Table)

The PEOPLE of the State of New York, Respondent,

v.Robert ROMANO, Appellant.

2016-2311 N CR

Supreme Court, Appellate Term, New York, Second Dept., 9 & 10 Jud. Dist.

Decided on November 18, 2021

Thomas R. Villecco, for appellant.

Nassau County District Attorney (Cristin N. Connell and Michael K. Degree of counsel), for respondent.

PRESENT: HELEN VOUTSINAS, J.P., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ.

ORDERED that so much of the appeal as is from the judgments convicting defendant of speeding and failing to signal a turn, respectively, is dismissed as abandoned; and it is further,

ORDERED that the judgment convicting defendant of common-law driving while intoxicated is affirmed.

Defendant was charged in three simplified traffic informations with, respectively, driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3] ), speeding ( Vehicle and Traffic Law § 1180 [b] ) and failing to signal a turn ( Vehicle and Traffic Law § 1163 [a] ). Following a pretrial hearing, the District Court (Andrew M. Engel, J.) suppressed certain noticed statements attributed to defendant.

A jury trial was conducted during which two New York State Troopers testified for the prosecution that, while on patrol, they observed and followed a vehicle defendant was driving going 80 miles per hour (mph) in a 55 mph zone, as well as switching lanes multiple times without signaling. The troopers testified that, after effecting a traffic stop and approaching defendant's vehicle, they smelled the strong odor of alcohol on defendant's breath. Defendant had difficulty keeping his balance when he exited his vehicle, and he failed each of three standardized field sobriety tests (SFSTs). Following his arrest on suspicion of driving while intoxicated, defendant twice refused to submit a breath sample for chemical testing after receiving refusal warnings from one of the troopers.

During cross-examination of one of the troopers, defense counsel moved into evidence a document that contained the suppressed noticed statements attributed to defendant, in which he told the troopers that he was driving home from an engagement party where he had drank one glass of wine during a toast. Before the jury could be informed of the suppressed evidence contained in the document, defense counsel brought the mistake to the court's attention and requested redaction of the statements. The court ruled, in effect, that counsel had opened the door for use of the suppressed evidence by the prosecution, and the prosecution did elicit this information from one of the troopers during redirect examination. Following the troopers’ testimony, both parties rested, and, after deliberating, the jury convicted defendant of all three charges. Sentences were subsequently imposed.

Although defendant appealed from each judgment of conviction, his brief on appeal raises issues only with respect to the judgment convicting him of common-law driving while intoxicated. Consequently, so much of the appeal as is from the judgments convicting defendant of speeding and failing to signal a turn is dismissed as abandoned (see People v Fasano , 66 Misc 3d 149[A], 2020 NY Slip Op 50271[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2020]).

Defendant appeals the judgment convicting him of common-law driving while intoxicated on two grounds. First, he asserts that the District Court violated his right to a fair trial by denying counsel's timely request to redact the suppressed statements from the defense exhibit. Assuming without deciding the correctness of this claim, we apply constitutional harmless error analysis. A "constitutional error may be harmless where evidence of guilt is overwhelming and there is no reasonable possibility that it affected the outcome of the trial" ( People v Best , 19 NY3d 739, 744 [2012] ). Here, the evidence of intoxicated driving was overwhelming without reliance upon the suppressed statements. As the troopers smelled alcohol on defendant's breath, defendant performed poorly on the SFSTs and defendant refused to submit to chemical testing of his breath (see People v Smith , 18 NY3d 544,...