People v. Sorrell

• Decision Date: 15 July 2021
• Docket Number: 112128
• Citation: 196 A.D.3d 923,151 N.Y.S.3d 534
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert J. SORRELL, Appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 923
151 N.Y.S.3d 534

The PEOPLE of the State of New York, Respondent,
v.
Robert J. SORRELL, Appellant.

112128

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

Calendar Date: June 1, 2021
Decided and Entered: July 15, 2021

151 N.Y.S.3d 535

O'Connell and Aronowitz, Albany (Scott W. Iseman of counsel), for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Vivian Y. Joo of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

196 A.D.3d 923

Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered February 19, 2020, upon a verdict convicting defendant of the crimes of driving while intoxicated (two counts) and leaving the scene of an incident without reporting, and the traffic infractions of moving from a lane unsafely and refusal of a breath test.

Following a motor vehicle accident on December 15, 2018, in which defendant's vehicle collided with a guiderail in Clinton

151 N.Y.S.3d 536

County, defendant was charged by indictment with two counts of driving while intoxicated, moving from a lane unsafely, leaving the scene of an incident without reporting and refusal of a breath test. Defendant was convicted as charged and sentenced to concurrent six-month terms in jail followed by five years of probation for his convictions of driving while intoxicated, and certain fines were imposed as to the remaining convictions. Defendant appeals.

Defendant contends that the verdict as to his conviction for leaving the scene of an incident without reporting is not supported by legally sufficient evidence and is against the weight of the evidence. Initially, defendant's legal sufficiency claim is unpreserved inasmuch as defendant failed to make any arguments regarding the count he now seeks to challenge on appeal (see People v. Baber, 182 A.D.3d 794, 795, 123 N.Y.S.3d 222 [2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ). "Nevertheless, in reviewing defendant's argument that the verdict is against the weight of the evidence, this Court must necessarily ensure that the People established each element of the crime" ( People v. Waheed, 176 A.D.3d 1510, 1511, 113 N.Y.S.3d 337 [2019] [citations omitted], lv denied 34 N.Y.3d 1133, 118 N.Y.S.3d 527, 141 N.E.3d 483 [2020] ). "To determine whether a verdict is against the weight of the evidence, this Court must first decide whether, based on all the credible evidence, a different finding would not

196 A.D.3d 924

have been unreasonable, and then, viewing the evidence in a neutral light and deferring to the jury's credibility assessments, weigh the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony" ( People v. Tromans, 177 A.D.3d 1103, 1103, 114 N.Y.S.3d 487 [2019] [internal quotation marks, brackets and citations omitted]; see People v. Burwell, 183 A.D.3d 173, 176, 122 N.Y.S.3d 419 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 861, 151 N.E.3d 542 [2020] ). As relevant here, Vehicle and Traffic Law § 600(1)(a) provides that "[a]ny person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property ... of another, due to an incident involving the motor vehicle operated by such person[,] ... shall report the same as soon as physically able to the nearest police station, or judicial officer" when the person who sustained the property damage is not present.

Defendant specifically argues that this conviction is against the weight of the evidence because he reported the accident to law enforcement "approximately 15 minutes after leaving the scene." To that end, Hunter McCargar testified that, while driving on the day of the accident at approximately 5:24 p.m., he came upon an accident involving a white "banged up" Subaru that had collided with a guiderail. McCargar observed a man, who was the only individual in the Subaru, "on his hands and knees almost in the passenger seat ... as if he was crawling out of that side" attempting to exit the vehicle. The individual then exited the vehicle from the passenger side of the Subaru and got into the passenger side of a truck, which was occupied by a man in the driver seat and was parked in the middle of the road next to the Subaru. McCargar described the individual who climbed out of the Subaru as "staggered and incoherent." McCargar testified that he exited his...