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

4
KA 10-00813
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK J. DAVIS, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered May 18, 2009. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
D felony, 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: Defendant appeals from a judgment convicting him
upon a jury verdict of felony driving while intoxicated (Vehicle and
Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and aggravated unlicensed
operation of a motor vehicle in the first degree (§ 511 [3] [a] [i]).
We reject defendant’s contention that the stop of his vehicle was
improper. Rather, we conclude that the stop was lawful inasmuch as
the officer observed defendant committing a traffic violation (see
People v Robinson, 97 NY2d 341, 348-349; People v White, 27 AD3d
1181). Contrary to defendant’s further contention, County Court did
not abuse its discretion in denying his request for an adjournment
(see People v Jones, 79 AD3d 1773, 1774, lv denied 16 NY3d 832; People
v Green, 74 AD3d 1899, 1900-1901, lv denied 15 NY3d 852; see generally
People v Diggins, 11 NY3d 518, 524). Defendant failed to preserve for
our review his contention that the court violated CPL 270.05 (2) in
conducting the jury selection (see People v Hayes, 71 AD3d 1477, lv
denied 15 NY3d 751), and we decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]).

     Defendant also failed to preserve for our review his contention
that the evidence is legally insufficient to establish that he was
intoxicated by alcohol (see People v Gray, 86 NY2d 10, 19; see also
People v Rawleigh, 89 AD3d 1483). In any event, his contention is
                                 -2-                            4
                                                        KA 10-00813

without merit. Defendant did not contest that he was driving
erratically and that he failed the sobriety tests, but he blamed his
inability to pass the sobriety tests on the prescription medication he
was taking. The arresting officer, however, testified that he smelled
alcohol, particularly beer, on defendant’s breath. In addition,
defendant admitted to him that he drank three beers at a local bar,
and defendant refused to take a breathalyzer test, which permitted the
jury to infer that he refused to take the test because he knew that
the results would be incriminating (see Vehicle and Traffic Law § 1194
[2] [f]; People v Schuh, 4 AD3d 751, lv denied 2 NY3d 806). Viewing
the evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that the evidence is legally
sufficient to support the conviction (see People v Scroger, 35 AD3d
1218, lv denied 8 NY3d 950; People v Shank, 26 AD3d 812, 813-814;
People v Milo, 300 AD2d 680, 681, lv denied 99 NY2d 630). In
addition, 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
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant contends that he was denied a fair trial by
prosecutorial misconduct on summation. The court sustained
defendant’s objection to the comment made by the prosecutor on
summation and issued a curative instruction. In the absence of any
further objection, “the curative instruction[] must be deemed to have
corrected the error to the defendant’s satisfaction” (People v
Heide, 84 NY2d 943, 944; see People v Cox, 78 AD3d 1571, 1571-1572, lv
denied 16 NY3d 742). We reject the further contention of defendant
that he was denied effective assistance of counsel. 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). Finally, the sentence is not unduly harsh or severe.




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
