                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 12, 2015                    106057
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

CHRISTOPHER S. OLSON,
                    Appellant.
________________________________


Calendar Date:   January 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Jay L. Wilber, Public Defender, Binghamton (Jonathan
Rothermel of counsel), for appellant.

      Gerald F. Mollen, District Attorney, Binghamton (Brian
Leeds of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Broome County
(Cawley, J.), rendered April 27, 2012, upon a verdict convicting
defendant of the crime of driving while intoxicated.

      In March 2011, defendant was charged in a single-count
indictment with driving while intoxicated. The charges stemmed
from an accident that occurred on State Route 17 in Broome County
in July 2010 when defendant left the traveled portion of the road
and struck a sign – all of which was observed by a state trooper.
Following a jury trial, defendant was convicted of driving while
intoxicated as a felony and thereafter was sentenced to a prison
term of 1 to 3 years followed by five years of postrelease
supervision. Defendant now appeals, primarily contending that
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the verdict is against the weight of the evidence.

      Insofar as is relevant here, the People were required to
prove beyond a reasonable doubt that defendant "operate[d] a
motor vehicle while in an intoxicated condition" (Vehicle and
Traffic Law § 1192 [3]). At trial, the trooper in question
testified that, as he was traveling behind defendant on State
Route 17, he observed defendant's vehicle veer off the road to
the right, proceed down a hill, through the grass into a park,
strike a school sign, travel back up the hill to State Route 17
and come to a halt. Upon pulling up behind defendant's vehicle
and approaching the driver's-side window, the trooper detected "a
strong odor of alcohol" emanating from the vehicle and discovered
a "disheveled" defendant displaying "watery" eyes, a "red and
flush[ed]" complexion and "slow slurred speech." When the
trooper asked defendant to step out of the vehicle, he observed
that defendant had "poor motor skills" and "poor coordination" –
as evidenced by the fact that defendant held onto the door and
hood of his vehicle as he exited. Additionally, in response to
questioning, defendant admitted that he had "consumed a couple of
drinks at a friend's house" before getting in his car and
attempting to drive home. The trooper then administered the
horizontal gaze nystagmus (hereinafter HGN) test, which defendant
failed. The trooper further testified that defendant declined to
perform additional field sobriety tests and, after being
transported to the State Police barracks and advised of the
consequences of refusing a chemical breath test of his blood
alcohol content, refused to submit to such test.

      Although defendant attributed both his poor motor skills
and failure of the HGN test to preexisting back problems and/or
injuries that he sustained in the accident, the trooper testified
that defendant did not have any visible injuries and declined
medical treatment. To the extent that defendant now challenges
the trooper's training, experience and actual administration of
the HGN test and/or points to certain claimed inconsistencies in
the trooper's testimony, suffice it to say that these issues were
thoroughly vetted during the course of defense counsel's
extensive cross-examination of the trooper (see People v Sydlar,
106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013];
People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri,
                              -3-                106057

34 AD3d 986, 987 [2006]). Thus, while a different verdict may
not have been unreasonable, upon viewing the record as a whole,
we find that the jury's verdict is in accord with the weight of
the evidence (see People v Carota, 93 AD3d at 1073-1074; People v
Owens, 45 AD3d 1058, 1059 [2007]; People v Silvestri, 34 AD3d at
987).

      Defendant next contends that County Court abused its
discretion in addressing the People's admitted Rosario violation,
i.e., the destruction of the recordings of the radio
transmissions made by the trooper during his encounter with
defendant, as well as the apparent loss of certain photographs
taken at the accident scene. In this regard, the Court of
Appeals has instructed that the "nonwillful, negligent loss or
destruction of Rosario material does not mandate a sanction
unless the defendant establishes prejudice. If prejudice is
shown, the choice of the proper sanction is left to the sound
discretion of the trial judge, who may consider the degree of
prosecutorial fault" (People v Martinez, 22 NY3d 551, 567 [2014]
[citations omitted]; see People v Lee, 116 AD3d 493, 496 [2014],
lv denied 23 NY3d 1064 [2014]; People v La Mountain, 249 AD2d
584, 585-586 [1998], lv denied 92 NY2d 855 [1998]). Here,
nothing in the record suggests that the destruction and/or loss
of the cited evidence was willful, and we are hard pressed – in
light of the extensive cross-examination of the trooper as to his
observations of defendant on the evening in question and the
content of his radio transmissions – to discern any prejudice to
defendant in this regard. That said, even assuming, without
deciding, that defendant indeed has established prejudice, we
cannot say that County Court abused its discretion in providing a
permissive – rather than a mandatory – adverse inference charge
to the jury (see People v Davis, 18 AD3d 1016, 1018-1019 [2005],
lv denied 5 NY3d 805 [2005]). Accordingly, the judgment of
conviction is affirmed.

     McCarthy, J.P., Lynch and Clark, JJ., concur.
                        -4-                  106057

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
