PEOPLE v. MILLER (2006)

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered April 29, 2005, upon a verdict convicting defendant of the crimes of driving while intoxicated (two counts), aggravated unlicensed operation of a motor vehicle in the first degree, reckless driving and obstructing governmental administration in the second degree.

Defendant, who had no driver's license, was driving home from a bar after drinking seven beers at various places throughout the evening.   The first police officer who encountered defendant activated his car's emergency lights for defendant to pull over.   Defendant began to pull over, then accelerated and continued driving.   During the police chase that ensued, defendant sped and drove through numerous red lights and stop signs without stopping, finally coming to a rest in front of his home.   He failed all administered sobriety tests and a chemical test showed a .15% blood alcohol content.   Following trial, the jury convicted him of felony driving while intoxicated (two counts), aggravated unlicensed operation of a motor vehicle in the first degree, reckless driving and obstruction of governmental administration in the second degree.   Defendant appeals.

 County Court obtained jurisdiction over defendant when it arraigned him on the indictment (see CPL 1.20[9];  People v. Doe, 271 A.D.2d 29, 31, 710 N.Y.S.2d 420 [2000], lv. denied 95 N.Y.2d 934, 721 N.Y.S.2d 610, 744 N.E.2d 146 [2000] ), however, the court never obtained a formal not guilty plea from defendant as required by statute (see CPL 210.50, 220.50[1] ).   This statutory violation, which is not jurisdictional, is not preserved for our review because defendant failed to raise it before County Court and proceeded as if he had pleaded not guilty (compare People v. Updike, 125 A.D.2d 735, 736-737, 509 N.Y.S.2d 158 [1986] ).   On the merits, moreover, defendant submitted to the court's jurisdiction and accessed the court's authority over him through his subsequent appearances, filing of motions and participation in trial (see People v. Golston, 13 A.D.3d 887, 889, 787 N.Y.S.2d 185 [2004], lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005];  People v. Ciccarello, 276 A.D.2d 637, 637, 714 N.Y.S.2d 695 [2000], lv. denied 96 N.Y.2d 733, 722 N.Y.S.2d 799, 745 N.E.2d 1022 [2001];  see also People v. Rodabaugh, 26 A.D.3d 598, 600, 809 N.Y.S.2d 636, 638 [2006] ).   We similarly decline to address defendant's argument alleging facial insufficiency of the count of the indictment charging obstruction of governmental administration, as he failed to preserve the issue by including it in his pretrial motion to dismiss the indictment (see People v. Stabb, 9 A.D.3d 738, 739, 779 N.Y.S.2d 866 [2004], lv. denied 3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682 [2004] ).

Defendant also failed to preserve for our review the People's alleged CPL 710.30 violation.   In any event, that allegation is meritless as the prosecution did not offer any identification testimony that fell within the parameters of that statute (see People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979];  People v. Evans, 17 A.D.3d 861, 862, 793 N.Y.S.2d 278 [2005], lv. denied 5 N.Y.3d 828, 804 N.Y.S.2d 42, 837 N.E.2d 741 [2005];  People v. Butler, 16 A.D.3d 915, 916-917, 791 N.Y.S.2d 723 [2005], lv. denied 5 N.Y.3d 786, 801 N.Y.S.2d 807, 835 N.E.2d 667 [2005] ).

 Defendant's argument that County Court's Sandoval ruling was unduly prejudicial, while preserved, is unpersuasive.   The court permitted inquiry regarding defendant's 1985 grand larceny conviction, 1988 criminal trespass conviction and 2000 false impersonation conviction.   Although a substantial amount of time had passed since two of these convictions were obtained, the court stated that its ruling was a compromise because of defendant's essentially nonstop criminal record over the prior 20 years.   The court did not allow inquiry into defendant's conviction for endangering the welfare of a child, three prior aggravated unlicensed operation convictions or five prior driving while intoxicated convictions.   When considering defendant's total criminal history, the court's Sandoval ruling balanced all appropriate factors and constituted a proper exercise of discretion (see People v. Whitted, 16 A.D.3d 905, 907, 791 N.Y.S.2d 714 [2005], lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 [2005];  see also People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994];  People v. Layman, 284 A.D.2d 558, 560, 725 N.Y.S.2d 744 [2001], lv. denied 96 N.Y.2d 903, 730 N.Y.S.2d 801, 756 N.E.2d 89 [2001] ).

ORDERED that the judgment is affirmed.

KANE, J.

CARDONA, P.J., MERCURE, SPAIN and CARPINELLO, JJ., concur.