        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

987
KA 09-02539
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLAYTON H. STEVENS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered November 10, 2009. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
D felony, unlawful possession of marihuana, failure to wear a seat
belt and consumption of alcoholic beverages or possession of an open
container containing alcoholic beverages in a motor vehicle.

     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
(DWI) (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]),
failure to wear a seat belt (§ 1229-c [3]), and consumption of
alcoholic beverages or possession of an open container containing
alcoholic beverages in a motor vehicle (§ 1227 [1]). Contrary to the
contention of defendant, we conclude that, viewing the evidence in
light of the elements of those crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). Although a different result would not have been unreasonable,
“ ‘[t]he jury was entitled to resolve issues of credibility in favor
of the People . . . , and it cannot be said that the jury failed to
give the evidence the weight it should be accorded’ ” (People v Caver,
56 AD3d 1204, 1204, lv denied 12 NY3d 781).

     We reject defendant’s further contention that County Court failed
to fashion an appropriate Sandoval ruling (see People v Sandoval, 34
NY2d 371, 374). We conclude that the court’s Sandoval compromise, in
which it limited questioning on defendant’s prior convictions for DWI-
related offenses to whether defendant had been convicted of a felony
or misdemeanor on the appropriate date, “reflects a proper exercise of
                                 -2-                           987
                                                         KA 09-02539

the court’s discretion” (People v Thomas, 305 AD2d 1099, 1099, lv
denied 100 NY2d 600). The court did not abuse its discretion in
further permitting specific questioning as to defendant’s other
convictions, even though they were remote in time (see generally
People v Walker, 83 NY2d 455, 458-459).

     Defendant failed to preserve for our review his challenge that he
was punished for exercising his right to a trial (see People v Carey,
92 AD3d 1224, 1225, lv denied 18 NY3d 992; People v Shay, 85 AD3d
1708, 1709, lv denied 17 NY3d 822). In any event, we conclude that
the contention is without merit (see People v Coapman, 90 AD3d 1681,
1684, lv denied 18 NY3d 956; People v Dorn, 71 AD3d 1523, 1524).
Finally, the sentence is not unduly harsh or severe.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
