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

103
KA 13-01184
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS J. TORRES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered August 7, 2012. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
D felony, and aggravated driving while intoxicated, per se, a class D
felony.

     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 driving while intoxicated, a class D felony (Vehicle and
Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]), and aggravated driving
while intoxicated, per se, a class D felony (§§ 1192 [2-a] [a]; 1193
[1] [c] [ii]), defendant contends that the verdict is contrary to the
weight of the evidence with respect to the issues of intoxication, the
breathalyzer test results, and the defense of justification. Inasmuch
as defendant admitted during his trial testimony that he was
intoxicated when he operated the vehicle, we reject his contention
that the jury improperly weighed the evidence of intoxication.
Defendant’s contention with respect to the breathalyzer test results
is without merit (see § 1194 [4] [c]; People v Kulk, 103 AD3d 1038,
1041, lv denied 22 NY3d 956; see generally People v Boscic, 15 NY3d
494, 498-500). Consequently, the only remaining issue with respect to
the weight of the evidence is defendant’s contention that the jury did
not properly weigh the evidence with respect to the defense of
justification based on an emergency, also known as the “choice of
evils” defense (see e.g. People v Craig, 78 NY2d 616, 620 n 1).
Viewing the evidence in light of the elements of the crimes as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we reject
defendant’s contention that, under the circumstances of this case, the
jury failed to give the evidence the weight it should be accorded in
considering that defense (see generally People v Bleakley, 69 NY2d
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490, 495).

     The defense applies where, inter alia, the defendant’s conduct
“is necessary as an emergency measure to avoid an imminent public or
private injury which is about to occur” (Penal Law § 35.05 [2]).
“[T]he requirement that the impending injury must be ‘imminent’ and
‘about to occur’ denotes an impending harm which constitutes a
present, immediate threat—i.e., a danger that is actual and at hand,
not one that is speculative, abstract or remote” (Craig, 78 NY2d at
624). “It was for the jury to determine whether the threat of harm
that the defendant perceived had ceased to exist and if so whether
defendant had sufficient time to react prior to” engaging in the
illegal conduct (People v Maher, 79 NY2d 978, 982). Even assuming,
arguendo, that defendant was initially justified within the meaning of
Penal Law § 35.05 (2) in driving while intoxicated to escape an
imminent threat of physical injury, we cannot conclude that the jury
improperly weighed the evidence in determining that defendant was not
justified in continuing to operate the vehicle for several miles, with
no evidence that he was being pursued.

     We reject defendant’s contention that County Court erred in
denying his motion to suppress all evidence arising from the allegedly
improper stop of his vehicle. “The police had reasonable suspicion to
stop defendant[’s] vehicle based on the contents of a 911 call from
[three identified citizens] and the confirmatory observations of the
police. [Inasmuch as the evidence in the record establishes that the
information provided by those citizens] was reliable under the
totality of the circumstances, satisfied the two-pronged
Aguilar–Spinelli test for the reliability of hearsay tips in this
particular context and contained sufficient information about
defendant[’s] unlawful possession of a weapon to create reasonable
suspicion, the lawfulness of the stop of defendant[’s] vehicle is”
established (People v Argyris, ___ NY3d ___, ___ [Nov. 25, 2014]).

     We also reject defendant’s contention that he was denied
effective assistance of counsel. It is well settled that, “[t]o
prevail on a claim of ineffective assistance of counsel, it is
incumbent on defendant to demonstrate the absence of strategic or
other legitimate explanations” for defense counsel’s allegedly
deficient conduct (People v Rivera, 71 NY2d 705, 709; see People v
Benevento, 91 NY2d 708, 712), and defendant failed to meet that
burden. Viewing the evidence, the law and the circumstances of this
case, in totality and as of the time of the representation, we
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).

     Defendant further contends that the court committed reversible
error by failing to provide a meaningful response to a jury note
asking for the legal definition of an adjournment in contemplation of
dismissal. We reject the People’s assertion that defendant’s
contention is not preserved for our review, inasmuch as the record
establishes that “the court ‘was aware of, and expressly decided, the
[issue] raised on appeal’ ” (People v Collins, 106 AD3d 1544, 1546, lv
denied 21 NY3d 1072, quoting People v Hawkins, 11 NY3d 484, 493). We
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                                                         KA 13-01184

conclude, however, that defendant’s contention is without merit. The
court appropriately answered the jury’s question by explaining that
there was no evidence in the record concerning such a disposition (see
generally People v Esquilin, 236 AD2d 245, 246-247, affd 91 NY2d 902;
People v Davis, 223 AD2d 376, 377, lv denied 88 NY2d 846). Thus,
“whatever questions are raised as to the phrasing of the court’s
response to the jury’s questions, the court’s answer provided the
requisite ‘meaningful response’ ” (People v Simmons, 66 AD3d 292, 295,
affd 15 NY3d 728).

     Defendant further contends that he was deprived of a fair trial
by various instances of prosecutorial misconduct. Although defendant
contends that the prosecutor engaged in misconduct by introducing
evidence of defendant’s invocation of his right to remain silent, we
note that the prosecutor in fact did not introduce such evidence;
rather, the testimony elicited by the prosecutor established that
defendant merely responded to a question about his rights by stating
that he would speak to the officers when he considered it appropriate
to do so. “By refusing to respond to certain questions but while
continuing to respond to others, defendant [did not] invoke his right
to remain silent” (People v Gibbs, 286 AD2d 865, 867, lv denied 97
NY2d 704; see People v Flowers, 122 AD3d 1396, 1396-1397; People v
Jandreau, 277 AD2d 998, 998, lv denied 96 NY2d 784) and, “thus, the
prosecutor did not err in eliciting testimony on that issue” (Gibbs,
286 AD2d at 867).

     Defendant failed to object to the majority of the remaining
instances of alleged prosecutorial misconduct that he raises on
appeal, and thus failed to preserve his contention for our review with
respect to those instances (see People v Ward, 107 AD3d 1605, 1606, lv
denied 21 NY3d 1078). In any event, with respect to the remaining
alleged instances of misconduct, both preserved and unpreserved, we
conclude that “[a]ny improprieties were not so pervasive or egregious
as to deprive defendant of a fair trial” (People v Jones, 114 AD3d
1239, 1241, lv denied 23 NY3d 1038, 1039 [internal quotation marks
omitted]; see People v Smith, 109 AD3d 1150, 1151-1152, lv denied 22
NY3d 1090).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contention and conclude that it is without
merit.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
