         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
629
KA 09-01056
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

MICHAEL J. TYRA, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (NEAL P.
MCCLELLAND OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered March 25, 2009. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
E felony, and aggravated 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] [former (i)]) and felony
aggravated driving while intoxicated (§ 1192 [2-a]; § 1193 [1] [c]
[former (i)]). Defendant contends that County Court abused its
discretion in denying his motion for a mistrial after a witness
testified that defendant was arrested for driving into a house on the
day before the incident at issue occurred. We reject that contention
(see generally People v Ortiz, 54 NY2d 288, 292). The court
instructed the jury to disregard that statement, and “the jury is
presumed to have followed” the curative instruction (People v Woods,
60 AD3d 1493, 1494, lv denied 12 NY3d 922; see People v Cruz, 272 AD2d
922, 923, affd 96 NY2d 857; People v Allen, 78 AD3d 1521). Thus, any
prejudice resulting from that statement was thereby adequately
alleviated (see Allen, 78 AD3d 1521; People v Young, 55 AD3d 1234,
1236, lv denied 11 NY3d 901).

     To the extent that defendant further contends that there is
legally insufficient evidence to corroborate his admissions to the
police pursuant to CPL 60.50, that contention is not preserved for our
review (see People v Prado, 1 AD3d 533, 534, affd 4 NY3d 725, rearg
denied 4 NY3d 795; People v Mosca, 294 AD2d 938, lv denied 99 NY2d
538) and, in any event, it is without merit. Defendant’s blood
alcohol content was .31%, and his truck was parked so that it was in
contact with another vehicle. Defendant stated that no one else drove
                                 -2-                           629
                                                         KA 09-01056

his truck, and he admitted that he parked the truck in the location
where it was found on the morning of his arrest. Further, defendant
admitted that he had been drinking both the previous night and that
morning, denied drinking anything since he parked the vehicle and
stated that he struck his face “on” his truck. Defendant’s face was
still bleeding when the police arrived. Thus, defendant’s admissions
were corroborated by “evidence . . . found in the presence of
defendant at the scene of the crime, his guilty appearance afterward,
[and] other circumstances supporting an inference of guilt” (People v
Booden, 69 NY2d 185, 187; see People v Kestler, 201 AD2d 955, lv
denied 83 NY2d 854; see generally People v Blake, 5 NY2d 118, 119-120;
People v Spencer, 289 AD2d 877, 879, lv denied 98 NY2d 655).

     Finally, 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).




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
