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

693
KA 12-01693
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES W. TOMLIN, III, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered February 9, 2012. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
E felony, and unlawful possession of marihuana.

     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 driving while intoxicated as a felony (Vehicle
and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]), and unlawful
possession of marihuana (Penal Law § 221.05). Defendant failed to
preserve for our review his challenge to the alleged legal
insufficiency of the evidence with respect to the element of
intoxication because he failed to move for a trial order of dismissal
on that ground (see People v Gray, 86 NY2d 10, 19). Contrary to
defendant’s contention, the evidence is legally sufficient to
establish that he operated the motor vehicle at the time and place
charged in the indictment (see People v Blake, 5 NY2d 118, 119-120).
Furthermore, viewing the evidence in light of the elements of the
crime and the violation 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).

     We reject defendant’s contention that County Court abused its
discretion in denying as untimely his request for a missing witness
charge with respect to one of the police officers at the scene of
defendant’s arrest. “The request was not made until both parties had
rested, rather than at the close of the People’s proof, when defendant
became ‘aware that the witness would not testify’ ” (People v
Williams, 94 AD3d 1555, 1556). In any event, we note that the witness
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                                                         KA 12-01693

was no longer a police officer, and was incarcerated after having been
prosecuted by the same District Attorney’s office. Thus, it cannot be
said that the witness was “favorably disposed” to the People and was
under their control (People v Gonzalez, 68 NY2d 424, 429).

     Defendant further contends that the court erred in permitting the
prosecutor to elicit testimony from a police officer regarding
defendant’s failure to respond to an unspecified inquiry made to him
while in the holding cell after his arrest, because such testimony was
inconsistent with the court’s pretrial suppression ruling. Contrary
to defendant’s contention, the testimony made no reference to
defendant’s refusal to submit to a breath test, which was the subject
of the pretrial suppression ruling. The testimony concerning
defendant’s failure to respond to an unspecified inquiry was properly
admitted because it was relevant to establishing defendant’s physical
condition, demeanor and general responsiveness to questioning (see
People v McRobbie, 97 AD3d 970, 971-972, lv denied 20 NY3d 934). By
failing to object during the prosecutor’s summation, defendant failed
to preserve for our review his contention that the prosecutor made an
improper reference to defendant’s breath test refusal during summation
and, in any event, he was not thereby denied a fair trial (see People
v Johnston, 43 AD3d 1273, 1274-1275, lv denied 9 NY3d 1007).
Defendant further contends that the court erred in permitting the
prosecutor to play portions of the booking video for the jury because
the booking video was not included in the People’s CPL 710.30 notice.
We reject that contention, inasmuch as the portions of the booking
video played for the jury showed defendant’s physical condition, and
they contained questions and answers about defendant’s pedigree
information as well as spontaneous statements by defendant not in
response to any questions or interrogation (see People v Higgins, 124
AD3d 929, 932-933).

     We reject defendant’s further contention that he was denied
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147). We note in particular that defense counsel was not
ineffective in failing to request a charge in accordance with CPL
60.50 (see People v Higgins, 123 AD3d 1143, 1144). Defendant’s
admission with respect to the operation of the motor vehicle was
sufficiently corroborated by other evidence (see People v Tyra, 84
AD3d 1758, 1759, lv denied 17 NY3d 822) and, under these
circumstances, defense counsel could have reasonably concluded that
such a charge would focus the jury’s attention on the strength of the
corroborating evidence (see generally People v Smith-Merced, 50 AD3d
259, 259, lv denied 10 NY3d 939). Defendant thus “has failed to show
the absence of strategic or other legitimate explanations for defense
counsel’s alleged shortcoming[]” (People v Gilpatrick, 63 AD3d 1636,
1637, lv denied 13 NY3d 835). Finally, the sentence is not unduly
harsh or severe.



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