PEOPLE v. AHLUWALIA (2020)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered November 21, 2016, convicting defendant, after a jury trial, of operating a motor vehicle while under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree, and sentencing him to an aggregate term of 21/313 to 7 years, unanimously affirmed.  Judgment of resentence (same court and Justice), rendered November 21, 2016, as amended February 10, 2017, revoking a prior sentence of probation and resentencing defendant to a consecutive term of 11/313 to 4 years, unanimously modified, on the law, to the extent of remanding for resentencing for pronouncement of sentence on both of the convictions upon which probation was revoked, and otherwise affirmed.

Defendant's claim that the evidence was legally insufficient to prove he was intoxicated is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There was ample evidence of defendant's intoxication, including police testimony that defendant drove the wrong way on a one-way street, had watery and bloodshot eyes, smelled of alcohol on his breath, was unsteady on his feet, had trouble standing, and slurred his speech.  Furthermore, defendant's refusal to submit to a breath test was properly admissible (see Vehicle and Traffic Law § 1194[2][f] ).

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ).  Also, because the prior convictions raised the present driving while intoxicated charge to a felony, and because defendant refused to admit to those convictions outside the jury's presence (see CPL 200.60[3][b] ), those convictions were placed in evidence as part of the People's case.  In addition, the People had a good faith basis for inquiring into whether defendant had previously asserted false medical excuses for refusing intoxication tests.  That matter was probative of defendant's credibility, because he made similar medical claims in connection with the present arrest.

Defendant's claim that the court revoked a sentence of probation for a prior conviction without following the procedures set forth in CPL 410.70 requires preservation (see People v. Gianni, 94 A.D.3d 1477, 1477, 942 N.Y.S.2d 733 [4th Dept. 2012] lv denied 19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012];  see also People v. Kyem, 272 A.D.2d 136, 708 N.Y.S.2d 613 [1st Dept. 2000] lv denied 95 N.Y.2d 836, 713 N.Y.S.2d 143, 735 N.E.2d 423 [2000] ), and we decline to review it in the interest of justice.  As an alternative holding, we find that the record establishes that the court complied with CPL 410.70 by finding that defendant had violated a condition of his probation as the result of the present conviction after trial (see People v. Matos, 28 A.D.3d 1120, 1121–22, 816 N.Y.S.2d 776 [4th Dept. 2006] ).

The People agree that defendant should be resentenced on the violation of probation for the sole purpose of pronouncing sentence separately for each of the two counts upon which probation was revoked.