PEOPLE v. HORSEY (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of felony driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3];  § 1193[1][c][ii] ) and driving without headlamps (§ 375[2][a][1] ).   Contrary to defendant's contention, County Court properly concluded that the police made “ ‘reasonable and sufficient’ efforts” to contact an attorney upon the request of defendant prior to eliciting his consent to submit to the chemical breath test (People v. DePonceau, 275 A.D.2d 994, 994, 715 N.Y.S.2d 197, lv. denied 95 N.Y.2d 962, 722 N.Y.S.2d 480, 745 N.E.2d 400;  see generally People v. Shaw, 72 N.Y.2d 1032, 1033-1034, 534 N.Y.S.2d 929, 531 N.E.2d 650;  People v. Gursey, 22 N.Y.2d 224, 227-229, 292 N.Y.S.2d 416, 239 N.E.2d 351;  People v. Monahan, 295 A.D.2d 626, 627, 744 N.Y.S.2d 879, lv. denied 98 N.Y.2d 770, 752 N.Y.S.2d 10, 781 N.E.2d 922). Where, as here, the attorney requested by the defendant “ ‘cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel’ ” (DePonceau, 275 A.D.2d at 994, 715 N.Y.S.2d 197, quoting Gursey, 22 N.Y.2d at 229, 292 N.Y.S.2d 416, 239 N.E.2d 351).

 Contrary to the further contention of defendant, the court properly denied his challenge for cause to a prospective juror.   The prospective juror gave the requisite unequivocal assurances that she would follow the law and consider police testimony just as she would any other testimony (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  People v. Madison, 8 A.D.3d 956, 957, 778 N.Y.S.2d 593, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 36, 818 N.E.2d 678;  People v. Cato, 306 A.D.2d 912, 913, 761 N.Y.S.2d 909, lv. denied 1 N.Y.3d 569, 775 N.Y.S.2d 786, 807 N.E.2d 899;  see generally People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932).

 We reject defendant's contention that the court erred in allowing the People to introduce Molineux evidence.   The evidence was properly admitted in order to complete the narrative of the chemical breath test operator with respect to his preliminary steps in administering the breath test to defendant, and it was admissible in order to lay a foundation for the breath test results (see generally People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014;  People v. Till, 87 N.Y.2d 835, 836-837, 637 N.Y.S.2d 681, 661 N.E.2d 153;  People v. Corchado, 299 A.D.2d 843, 749 N.Y.S.2d 814, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 716, 785 N.E.2d 738).   Moreover, the evidence circumstantially established defendant's intoxication, i.e., by demonstrating defendant's belligerence (see generally People v. Neil, 30 A.D.3d 901, 902, 817 N.Y.S.2d 746, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145;  People v. O'Meara, 182 A.D.2d 1116, 586 N.Y.S.2d 769, lv. denied 80 N.Y.2d 836, 587 N.Y.S.2d 920, 600 N.E.2d 647), and we conclude that its probative value outweighed the risk of undue prejudice (see Till, 87 N.Y.2d at 836-837, 637 N.Y.S.2d 681, 661 N.E.2d 153;  People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808).   In any event, any error in admitting the evidence is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

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

MEMORANDUM: