PEOPLE v. GIBSON (2019)

MEMORANDUM AND ORDER

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, inter alia, one count of driving while ability impaired ( [DWAI] Vehicle and Traffic Law § 1192[1]), two counts of aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ), and one count of endangering the welfare of a child (Penal Law § 260.10[1]).  Contrary to defendant's contention, viewing the evidence in light of the elements of those crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).  “The resolution of credibility issues by the jury and its determination of the weight to be given to the evidence are accorded great deference” (People v. Wallace, 306 A.D.2d 802, 802, 760 N.Y.S.2d 702 [4th Dept. 2003];  see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Here, the jury was entitled to credit the testimony of the People's witnesses regarding defendant's “poor driving, signs of intoxication, [and refusal] to perform field sobriety tests[ ] and ․ chemical test[s]” to determine his blood alcohol content and regarding the fact that defendant drove his vehicle over a field toward a playground where children were playing, nearly striking a nine-year-old child (People v. Gelster, 256 A.D.2d 1133, 1133, 684 N.Y.S.2d 712 [4th Dept. 1998]; see People v. Morrison, 48 A.D.3d 1044, 1045, 852 N.Y.S.2d 495 [4th Dept. 2008], lv denied 10 N.Y.3d 867, 860 N.Y.S.2d 494, 890 N.E.2d 257 [2008];  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Concomitantly, the jury was entitled to “discredit the version of the incident set forth by defendant” (Morrison, 48 A.D.3d at 1045, 852 N.Y.S.2d 495;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Contrary to defendant's further contention, he was not denied effective assistance of counsel when defense counsel asked him on direct examination if he had a valid driver's license on the day of his arrest.  Defendant failed to demonstrate the “ ‘absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings” (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]).  Indeed, under the Sandoval ruling, the People were allowed to question defendant regarding a prior conviction for aggravated unlicensed operation of a motor vehicle.  Thus, defense counsel employed sound trial strategy by eliciting defendant's admission that he lacked a valid driver's license to diminish the impact of the People's likely cross-examination regarding the prior conviction (see People v. Salsbery, 78 A.D.3d 1624, 1625, 911 N.Y.S.2d 547 [4th Dept. 2010], lv denied 16 N.Y.3d 836, 921 N.Y.S.2d 200, 946 N.E.2d 188 [2011];  People v. Van Vleet, 256 A.D.2d 1181, 1182, 683 N.Y.S.2d 362 [4th Dept. 1998]).  Additionally, even assuming, arguendo, that defense counsel should have objected to the prosecutor's limited violation of the Sandoval ruling while cross-examining defendant, we conclude that any such error did not deprive defendant of his right to a fair trial (see Morrison, 48 A.D.3d at 1045, 852 N.Y.S.2d 495;  see generally Benevento, 91 N.Y.2d at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584).  We have reviewed defendant's remaining allegations of ineffective assistance of counsel and conclude that they lack merit.

Lastly, we reject defendant's contention that the court violated CPL 320.10(2) by accepting his stipulation to the conviction of both counts of aggravated unlicensed operation of a motor vehicle in the first degree without obtaining a waiver of his right to a jury trial.  In order to establish that defendant committed one of the counts of aggravated unlicensed operation of a motor vehicle in the first degree, the People would have introduced evidence that he had a prior conviction of DWAI (Vehicle and Traffic Law § 1192[1];  see § 511[2][a][ii];  3[a][i] ), and defendant waived his present contention by “ ‘freely and voluntarily enter[ing] into [a] stipulation as part of a strategy to keep the jury from learning of his prior [DWAI] conviction’ ” (People v. Smith, 306 A.D.2d 858, 859, 761 N.Y.S.2d 895 [4th Dept. 2003], lv denied 100 N.Y.2d 587, 764 N.Y.S.2d 398, 796 N.E.2d 490 [2003];  see People v. Donhauser, 255 A.D.2d 933, 934, 683 N.Y.S.2d 357 [4th Dept. 1998]).