         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1242
KA 08-02363
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD RAWLEIGH, DEFENDANT-APPELLANT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC., LIVINGSTON CONFLICT
DEFENDER’S OFFICE, WARSAW (ANNA JOST OF COUNSEL), FOR
DEFENDANT-APPELLANT.

THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered October 2, 2008. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
D felony (two counts).

     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 two counts of felony driving while intoxicated
([DWI] Vehicle and Traffic Law § 1192 [2], [3]; § 1193 [1] [c] [former
(ii)]). Contrary to defendant’s contention, the evidence is legally
sufficient to establish that he operated a motor vehicle while having
more than .08 of one per centum by weight of alcohol in his blood (see
§ 1192 [2]; People v McCloskey, 78 AD3d 1077, 1078, lv denied 16 NY3d
861), and that he operated the vehicle while in an intoxicated
condition (see § 1192 [3]; People v McGraw, 57 AD3d 1516, 1517).
Police and civilian witnesses testified that defendant was unsteady on
his feet, that his eyes were glassy or bloodshot, that his speech was
slurred, and that he smelled of alcohol. Defendant admitted that he
consumed three 40-ounce bottles of beer and one other beer of
unspecified quantity, and a subsequent breath test showed defendant’s
blood alcohol content (BAC) to be .10. Thus, 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 with
respect to both counts of driving while intoxicated (see generally
People v Bleakley, 69 NY2d 490, 495). Defendant’s remaining
contentions concerning the legal sufficiency of the evidence are
unpreserved for our review inasmuch as his trial order of dismissal
was not specifically directed at the alleged deficiencies identified
on appeal (see People v Gray, 86 NY2d 10, 19; People v Roman, 85 AD3d
                                 -2-                          1242
                                                         KA 08-02363

1630, lv denied 17 NY3d 821). 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 further conclude that the verdict is not against
the weight of the evidence (see generally Bleakley, 69 NY2d at 495).

     Defendant further contends that the People committed a Brady
violation and that he was thereby denied a fair trial based on the
People’s failure to provide him with photographs taken of him on the
date of his arrest. Contrary to defendant’s contention, there was no
Brady violation. “Brady . . . does not require prosecutors to supply
a defendant with evidence when the defendant knew of, or should
reasonably have known of, the evidence and its exculpatory nature”
(People v Doshi, 93 NY2d 499, 506; see People v Singleton, 1 AD3d
1020, 1021, lv denied 1 NY3d 580). Here, the circumstances of
defendant’s arrest were such that he knew or should have known that he
was being photographed and that the photographs were allegedly
exculpatory in nature (see People v Rivera, 82 AD3d 1590, 1592, lv
denied 17 NY3d 800; People v Gilpatrick, 63 AD3d 1636, 1637, lv denied
13 NY3d 835).

     We also reject defendant’s contention that he was denied a fair
trial when the prosecutor asked him on cross-examination whether
before testifying he had reviewed notes from a notepad situated next
to defense counsel. Even assuming, arguendo, that the prosecutor’s
question was improper, we conclude that it was not so egregious as to
deny defendant a fair trial (see People v Chatman, 281 AD2d 964, 966,
lv denied 96 NY2d 899; see generally People v Agostini, 84 AD3d 1716).
Defendant did not object when the prosecutor asked him whether his
testimony was “the God-spoken truth.” Thus, he failed to preserve for
our review his contention that he was denied a fair trial by that
question (see CPL 470.05 [2]), and we decline to exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     Contrary to defendant’s further contention, we conclude that the
sentence is not unduly harsh or severe particularly in light of his
criminal history and the fact that these crimes were committed after
he had completed serving a sentence of incarceration of 1a to 4 years
on a prior DWI conviction. Further, County Court did not err in
considering defendant’s arrests for aggravated unlicensed operation of
a motor vehicle in sentencing him despite the fact that those charges
were still pending (see People v Khan, 146 AD2d 806, 807, lv denied 73
NY2d 1021; see also People v Garnett, 293 AD2d 769, 770, lv denied 98
NY2d 651). The court suspended defendant’s license during the
pendency of the trial, and defendant did not deny that he drove
without a license in contravention of the court’s order. Finally,
“the fact that the sentence imposed after trial was greater than that
offered pursuant to the pretrial plea offer does not render the
sentence unduly harsh” (People v Mastowski, 26 AD3d 744, 746, lv
denied 6 NY3d 850, 7 NY3d 815).

Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
