PEOPLE v. CAITO (2005)

 Defendant appeals from a judgment convicting him after a jury trial of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3];  § 1193[1][c][ii] ).   Because voir dire was not transcribed, we are unable to review the contention of defendant that County Court erred in denying his challenge for cause to a prospective juror (see People v. Degondea, 256 A.D.2d 39, 40, 682 N.Y.S.2d 139, lv. denied 95 N.Y.2d 834, 713 N.Y.S.2d 140, 735 N.E.2d 420;  People v. Piermont, 180 A.D.2d 830, 580 N.Y.S.2d 447, lv. denied 79 N.Y.2d 1006, 584 N.Y.S.2d 460, 594 N.E.2d 954).   We reject the further contentions of defendant that the court was required to question him before accepting defense counsel's waiver of the transcription of voir dire (see generally People v. Velasquez, 1 N.Y.3d 44, 49, 769 N.Y.S.2d 156, 801 N.E.2d 376), and that defense counsel's waiver constituted ineffective assistance of counsel (see generally People v. Snider, 2 A.D.3d 1452, 1453, 770 N.Y.S.2d 250, lv. denied 1 N.Y.3d 634, 777 N.Y.S.2d 33, 808 N.E.2d 1292).

 Defendant failed to object to the court's ultimate Sandoval ruling and thus failed to preserve for our review his contention that the ruling constitutes an abuse of discretion (see People v. Brown, 16 A.D.3d 1102, 790 N.Y.S.2d 912, lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264;  People v. Englert, 285 A.D.2d 987, 727 N.Y.S.2d 680, lv. denied 97 N.Y.2d 655, 737 N.Y.S.2d 56, 762 N.E.2d 934;  People v. McAllister, 245 A.D.2d 184, 665 N.Y.S.2d 897, lv. denied 91 N.Y.2d 894, 669 N.Y.S.2d 9, 691 N.E.2d 1035).   In any event, his contention is without merit.   The court refused to allow any inquiry with respect to several convictions, allowed inquiry with respect to the facts and circumstances of five convictions and, with respect to the remaining convictions, limited the inquiry to whether defendant had been convicted of a crime in a certain month and year.   The court's ruling “balanced the appropriate factors and was a proper exercise of discretion” (McAllister, 245 A.D.2d at 184, 665 N.Y.S.2d 897).   Contrary to defendant's further contention, “there is no indication that the sentence imposed was ‘inflicted as punishment for insisting upon a trial’ ” (People v. Jurjens, 291 A.D.2d 839, 840, 737 N.Y.S.2d 891, lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: