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

1037
KA 07-01780
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD C. DAGGETT, DEFENDANT-APPELLANT.


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

RONALD C. DAGGETT, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered May 16, 2007. The judgment convicted defendant,
upon a jury verdict, of felony driving while intoxicated, felony
driving while ability impaired by drugs, and various traffic
infractions.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentences imposed for felony driving while
intoxicated and felony driving while ability impaired by drugs to
indeterminate terms of incarceration of 15 years to life and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, felony driving while intoxicated
([DWI] Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former
(ii)]) and felony driving while ability impaired by drugs ([DWAI] §
1192 [4]; § 1193 [1] [c] [former (ii)]). Prior to defendant’s first
trial, which ended in a mistrial, County Court granted the People’s
motion to dismiss the DWAI count. Contrary to defendant’s contention
in his main and pro se supplemental briefs, the court properly
concluded that the dismissal of the DWAI count was a nullity (see
People v Dexter, 259 AD2d 952, 952-953, affd 94 NY2d 847), and thus
permitted the People to prosecute defendant on that count at the
retrial (see generally People v Barnett, 254 AD2d 12, lv denied 93
NY2d 871; People v Clarke, 203 AD2d 916, lv denied 83 NY2d 965). The
court also properly denied defendant’s motion to dismiss that count
prior to the retrial on statutory speedy trial grounds, inasmuch as
the retrial commenced within the applicable six-month period (see CPL
30.30 [5]).
                                 -2-                          1037
                                                         KA 07-01780

     The court properly denied the motion of defendant for a mistrial
during jury deliberations based upon a juror’s exposure to a radio
broadcast concerning defendant’s prior arrests for DWI (see People v
Matt, 78 AD3d 1616, lv denied 15 NY3d 954; People v Costello, 104 AD2d
947, 948-949). Contrary to the contention of defendant in his main
brief, the court provided a meaningful response to the jury’s note
requesting a readback of the instructions with respect to the DWAI
charge (see People v Malloy, 55 NY2d 296, 301-302, cert denied 459 US
847). Viewing the evidence in light of the elements of the DWI and
DWAI counts as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict with respect to those counts
is not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).

     The court properly rejected defendant’s constitutional challenge
to the persistent felony offender sentencing scheme (see People v
Battles, 16 NY3d 54, 59; People v Quinones, 12 NY3d 116, 119, 130-131,
cert denied ___ US ___, 130 S Ct 104). Defendant’s contention that
the court failed to comply with that scheme in sentencing him as a
persistent felony offender is not preserved for our review (see People
v Proctor, 79 NY2d 992, 994), and we decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Contrary to defendant’s further
contention, his previous DWI convictions may properly serve as
predicates both for his conviction of felony DWI and felony DWAI and
for purposes of determining his eligibility for persistent felony
offender treatment (see generally People v Bowers, 201 AD2d 830, 831,
lv denied 83 NY2d 909; People v Maldonado, 173 Misc 2d 612, 616-617).
We reject defendant’s contention that the court abused its discretion
in considering his prior youthful offender adjudication as relevant to
his “history and character” (Penal Law § 70.10 [2]; see People v
O’Connor, 6 AD3d 738, 740-741, lv denied 3 NY3d 639, 645). We
conclude, however, that while the court did not abuse its discretion
in sentencing defendant as a persistent felony offender, the sentence
nevertheless is unduly harsh and severe. The instant offenses did not
result in physical injury or property damage, and the evidence
presented at the persistent felony offender hearing established that
defendant’s criminal history is the product of his alcoholism and
mental health problems. As a matter of discretion in the interest of
justice, we therefore modify the judgment by reducing the sentences
imposed for DWI and DWAI to indeterminate terms of incarceration of 15
years to life (see CPL 470.20 [6]).

     We have reviewed the remaining contentions of defendant in his
pro se supplemental brief and conclude that none warrants further
modification or reversal of the judgment.




Entered:   October 7, 2011                      Patricia L. Morgan
                                                Clerk of the Court
