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

897
KA 14-01557
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD FOOSE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MEGHAN E. LEYDECKER
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered July 8, 2014. The judgment
convicted defendant, upon a jury verdict, of driving while
intoxicated, a class E felony.

     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] [i]). Defendant contends that
the evidence is legally insufficient to establish that he was the
operator of the vehicle because the witness was unable to identify him
in court, and her testimony was incredible or unreliable as a matter
of law. We reject that contention (see People v Segatol-Islami, 121
AD3d 1575, 1576, lv denied 24 NY3d 1221). The witness testified that
she was outside at night when she heard a crash and observed that a
vehicle had collided with a parked vehicle. The witness called 911,
and watched the driver exit the vehicle, wander around the street, and
get into arguments with other people. When the police arrived, she
pointed out the driver, and a police officer testified that she
arrested defendant. The witness’s inability to identify defendant in
court does not render her testimony regarding her observations and
identification of the driver after the accident “ ‘manifestly untrue,
physically impossible, contrary to experience, or
self-contradictory’ ” (People v Gaston, 104 AD3d 1206, 1207, lv
denied 22 NY3d 1156). The witness testified that, although she did
not see the driver very well because of the dimly-lit street, she did
not think that there was any chance that she pointed out the wrong
person to the police inasmuch as she lost track of the person for only
a second or two, and the person was wearing the same shirt as the one
who exited the vehicle. In addition, the officer testified that
                                 -2-                           897
                                                         KA 14-01557

defendant was standing near the vehicle when she arrived at the scene.
The officer further testified that defendant, who was yelling and
exhibited signs of intoxication, stated that he had not “been driving
that long.”

     Defendant next contends that he was deprived of effective
assistance of counsel based on defense counsel’s failure to move for a
mistrial after certain conduct by a prospective juror during voir dire
(see generally People v Baldi, 54 NY2d 137, 147). Defendant further
contends that Supreme Court should have granted a mistrial sua sponte.
We reject those contentions. When the prospective jurors were asked
whether they could not be fair and impartial on the case, one
prospective juror indicated that her father had been killed in an
alcohol-related accident, and the court excused the prospective juror
upon seeing that she was “upset.” Defendant’s contention that the
remaining jury panel was tainted by the prospective juror’s response
“is purely speculative” (People v Clark, 262 AD2d 233, 234, lv denied
93 NY2d 1016). Finally, we conclude that the sentence is not unduly
harsh or severe.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
