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

773
KA 14-01519
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEPHEN R. BOMBARD, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, MULDOON, GETZ & RESTON,
ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (MELANIE J. BAILEY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered February 26, 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,
following a jury trial, of driving while intoxicated (Vehicle and
Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]). Defendant was sentenced
to an indeterminate prison term of 1a to 4 years and ordered to pay a
fine in the amount of $2,000. Viewing the evidence in light of the
elements of the crime 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).

     Defendant failed to preserve for our review his contentions that
County Court erred in admitting evidence of his refusal to submit to a
breathalyzer test and in instructing the jury that an adverse
inference could be drawn from his refusal (see People v Kithcart, 85
AD3d 1558, 1559, lv denied 17 NY3d 818; see generally CPL 470.05 [2]).
In any event, defendant’s contentions lack merit. “To establish a
refusal, the People must show that the failure to register a sample is
the result of defendant’s action and not of the machine’s inability to
register the sample” (People v Adler, 145 AD2d 943, 944, lv denied 73
NY2d 919; see People v Bratcher, 165 AD2d 906, 907, lv denied 77 NY2d
958; Matter of Van Sickle v Melton, 64 AD2d 846, 846; see generally
Vehicle and Traffic Law § 1194 [2] [f]), and we conclude that the
People met that burden here. The People also were therefore entitled
to an adverse inference charge based on defendant’s refusal (see
                                 -2-                           773
                                                         KA 14-01519

People v Thomas, 46 NY2d 100, 110, appeal dismissed 444 US 891;
CJI2d[NY] Vehicle & Traffic Law § 1192 [3]).

     Finally, we reject defendant’s contention that the sentence is
unduly harsh and severe, particularly in view of defendant’s history
of convictions of driving while intoxicated.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
