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

1255
KA 12-00910
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDREW DEAN, DEFENDANT-APPELLANT.


LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (STEPHEN J. BIRD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered February 23, 2012. The judgment convicted
defendant, upon a jury verdict, of two counts of driving while
intoxicated, as class E felonies, and aggravated unlicensed operation
of a motor vehicle in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of two counts of felony driving while intoxicated (Vehicle and
Traffic Law §§ 1192 [2], [3]; 1193 [1] [c] [i] [A]) and one count of
aggravated unlicensed operation of a motor vehicle in the first degree
(§ 511 [3] [a] [i]), defendant contends that County Court erred in
refusing to suppress statements he made to law enforcement officers
following his arrest for the instant offenses. Even assuming,
arguendo, that those statements should have been suppressed, we
conclude that any error in failing to suppress them is harmless beyond
a reasonable doubt (see generally People v Crimmins, 36 NY2d 230,
237). The evidence at trial established that, less than two hours
before his arrest for the instant offenses, two police officers
observed defendant urinating in public while holding an open container
of beer. At that time, defendant admitted to the officers that he had
been drinking beer, and it appeared to the officers that defendant was
intoxicated. The officers, who had knowledge that defendant’s license
was suspended, informed defendant of the suspension and advised him
not to drive. Immediately before his arrest for the instant offenses,
one of the same officers observed defendant operating a motor vehicle.
When stopped by the officer, defendant attempted to flee but was
apprehended. At that time, defendant failed all field sobriety tests,
had slurred speech and smelled of alcohol. According to the
breathalyzer test, defendant had a blood alcohol content of .16%,
                                 -2-                         1255
                                                        KA 12-00910

which is twice the legal limit for driving while intoxicated (see
§ 1192 [2]). We thus conclude that “the evidence against defendant is
overwhelming, and there is no reasonable possibility that defendant
would have been acquitted if the statements had not been admitted in
evidence” (People v Rupert, 136 AD3d 1311, 1312, lv denied 27 NY3d
1075).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
