THE PEOPLE OF THE STATE OF NEW YORK v. TERELL WILSON (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 15, 2026

Appeal from a judgment of the County Court of Broome County (Joseph Cawley, J.), rendered November 6, 2023, upon a verdict convicting defendant of the crimes of assault in the second degree, vehicular assault in the first degree (two counts) and driving while intoxicated (two counts).

Defendant was charged by indictment with various felonies in connection with a February 2022 motor vehicle accident in which his girlfriend sustained multiple injuries.  Counsel was initially assigned to represent defendant on the charges and participated during a pretrial Huntley hearing conducted to assess the admissibility of certain statements defendant had made to a sheriff's deputy at the incident scene.  Following the hearing, County Court issued a decision that, as relevant here, suppressed all of defendant's statements from the time he was handcuffed and placed in the patrol vehicle at the incident scene until the subsequent administration of Miranda warnings at the police station.  Thereafter, in connection with a disagreement with defense counsel about whether a Mapp/Dunaway/Wade hearing also should be pursued on defendant's behalf, defendant elected to proceed pro se for the remainder of the proceedings and his assigned counsel was relieved from representing him in the matter.

Following a jury trial, defendant was convicted of one count of assault in the second degree and two counts of vehicular assault in the first degree in connection with the victim's injuries (see Penal Law §§ 120.05[4];  120.04[2][b] ), as well as one count each of driving a motor vehicle while intoxicated (hereinafter DWI) per se and common-law DWI (see Vehicle and Traffic Law § 1192[2], [3] ).  County Court sentenced defendant, as a second violent felony offender, to a prison term of five years, to be followed by five years of postrelease supervision, on the second-degree assault conviction, to run concurrently with a prison term of 31/212 to 7 years on each vehicular assault conviction and 1 to 3 years on each DWI conviction.¹  Defendant appeals.

Defendant argues that the verdict is against the weight of the evidence because the People did not establish his identity as the vehicle's driver at the time of the crash.  We disagree.²  “[I]n the course of reviewing defendant's weight of the evidence challenge, this Court necessarily evaluates whether all elements of the charged crimes were proven beyond a reasonable doubt” (People v. Scott, 250 AD3d 1345, 1347 [3d Dept 2026] [internal quotation marks and citations omitted], lv denied _ NY3d _ [Sept. 14, 2026] ).  “[W]e view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn [therefrom]” (People v. Cokely, 249 AD3d 1329, 1330 [3d Dept 2026] [internal quotation marks and citations omitted];  accord People v. Fajardo, 251 AD3d 1298, 1298 [3d Dept 2026] ).

As relevant here, a person is guilty of assault in the second degree when “[h]e [or she] recklessly causes serious physical injury to another person by means of a ․ dangerous instrument” (Penal Law § 120.05[4] ), including “a ‘vehicle’ as that term is defined in [Penal Law § 10.00(14) ], which, under the circumstances in which it is used,

․ is readily capable of causing ․ serious physical injury” (Penal Law § 10.00[13] ).  Serious physical injury “means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10] ).  A person is guilty of vehicular assault in the first degree when, as relevant here, “he or she commits the crime of vehicular assault in the second degree as defined in [Penal Law § 120.03] ․ while knowing or having reason to know that ․ his or her license ․ is suspended or revoked ․ following a conviction for a violation of any of the provisions of [Vehicle and Traffic Law § 1192]” (Penal Law § 120.04[2][b] ).  A person commits vehicular assault in the second degree when, as relevant here, he or she “operates a motor vehicle [while in an intoxicated condition] ․ and as a result of such intoxication ․ operates such motor vehicle ․ in a manner that causes ․ serious physical injury to [another] person” (Penal Law § 120.03[1] ).

As for the DWI charges against defendant, “[a]n individual is guilty of DWI per se when that person ‘operates a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's breath’ “ (People v. Pentalow, 196 AD3d 871, 874 [3d Dept 2021] [brackets and ellipsis omitted], quoting Vehicle and Traffic Law § 1192[2] ).  Relatedly, to obtain a conviction for common-law intoxicated driving under Vehicle and Traffic Law § 1192(3), the People must prove that the accused operated a motor vehicle while in an intoxicated condition, meaning that he or she “voluntarily consumed alcohol to the extent that he [or she wa]s incapable of employing the physical and mental abilities which he [or she wa]s expected to possess in order to operate a vehicle as a reasonable and prudent driver” (People v. Cruz, 48 N.Y.2d 419, 428 [1979], appeal dismissed 446 U.S. 901 [1980] ).

At trial, the People elicited testimony from a cab driver who saw the aftermath of the underlying accident.  The cab driver testified that, around 1:30 a.m. on February 18, 2022, he was driving on a public roadway in the Town of Binghamton, Broome County, when he observed a crashed vehicle near a gas station.  When the cab driver approached the vehicle, the front driver side wheel was turned to the right, the front passenger side wheel was missing, the engine was running and there was heavy damage at the front of the vehicle.  The cab driver observed two individuals in the vehicle:  an unconscious male in the driver's seat and an unconscious female (hereinafter the victim) in the front passenger's seat.  After breaking a window to turn the engine off, the cab driver walked away from the vehicle and called 911.  The cab driver testified that he subsequently observed the vehicle's male occupant regain consciousness and attempt to start the vehicle's engine three times.  Thereafter, first responders arrived on scene and began efforts to remove the victim from the vehicle.

The People also elicited testimony from a Broome County sheriff's deputy who testified that, when he received the dispatch call to respond to the accident site, he was informed that there was a male subject interacting with fire personnel near the damaged vehicle.  Upon arriving on scene, the deputy identified the man interacting with fire personnel as defendant, explaining that he was familiar with defendant from prior encounters.  The deputy further testified that, upon interacting with defendant, he “[i]mmediately” detected “a strong odor of alcohol[ ]” on defendant's person along with slurred speech and bloodshot/watery eyes.  Based upon such observations, along with his specialized training in DWI investigations, the deputy believed defendant was intoxicated by alcohol at the time.

The deputy testified that, when he questioned defendant about what had occurred, defendant stated that he and the victim had come from a bar and that the victim was driving.  When confronted about such assertion insofar as the victim was unconscious in the front passenger's seat, defendant then told the deputy that he had parked the vehicle at the location where it was found.³  After failing to comply with the deputy's commands to stay away from the vehicle while first responders worked to remove the victim, defendant was arrested and taken to the police station.  At 3:22 a.m., a breath test was administered to defendant and his blood alcohol content (hereinafter BAC) was recorded at .11%.

The victim also testified on the People's behalf at trial.  Although she could not remember the accident itself, she confirmed that she was the owner of the subject vehicle and that she and defendant had patronized a couple of bars prior to the accident.  She did not remember what time they left the last bar, when the accident occurred in relation thereto, or who was driving the vehicle at the time.  The victim testified that her last memory from the evening was saying “holy f* * *, there's black ice,” ⁴ after which she woke up at the hospital.  As for the nature of the victim's injuries, a trauma surgeon who treated the victim testified that she presented to the hospital with “severe traumatic injuries,” including, among other things, multiple fractures to her limbs, ribs, pelvis and spine, a bowel perforation, a collapsed lung and a sacral fracture.  The surgeon confirmed that, left untreated, the bowel injury “could lead to severe infection and even death.”  The victim spent approximately two months in the hospital before being discharged.

On this record, a different verdict would not have been unreasonable insofar as there were no eyewitnesses to the underlying incident.  However, contrary to defendant's contention, his identity as the vehicle's driver at the time of the crash was amply supported by the trial evidence.  Although the cab driver could not identify defendant as the unconscious male that he had observed in the driver's seat of the crashed vehicle when asked to do so at trial, the evidence established that there were only two people present when he approached the vehicle:  a man who was in the driver's seat and a woman who was in the front passenger's seat.  Only one man was present when first responders arrived on scene and the deputy identified him as defendant.  Notably, the engine was running when the cab driver first approached the vehicle, there was heavy damage to the front of the vehicle, both occupants were unconscious, and the victim was sitting in the passenger's seat – circumstances inconsistent with both defendant's initial claim that the victim was driving at the time of the crash and his subsequent assertion that he had parked the vehicle at the location where it was found.  Instead, such evidence was indicative of a recent accident that occurred while defendant was driving.  When weighing “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn [therefrom]” (People v. Fajardo, 251 AD3d at 1298 [internal quotation marks and citations omitted] ), we find that the People proved beyond a reasonable doubt that defendant was the driver of the vehicle at the time of the crash (see People v. Ferguson, 193 AD3d 1253, 1256 [3d Dept 2021], lv denied 37 NY3d 964 [2021] ).  Defendant does not challenge the adequacy of the proof regarding any of the other elements of the crimes of which he was convicted.  Nonetheless, given the results from defendant's breath test and the testimony from the first responders who observed signs of intoxication upon interacting with defendant at the accident scene, we are satisfied that the People met their burden of proof on both DWI charges under Vehicle and Traffic Law § 1192(2) and (3) (see People v. Diaz, 248 AD3d 1501, 1503 [3d Dept 2026];  People v. Ferguson, 193 AD3d at 1526;  People v. Murphy, 101 AD3d 1177, 1178–1179 [3d Dept 2012] ).  We also find that defendant's convictions of assault in the second degree and vehicular assault in the first degree are not against the weight of the evidence (see People v. Ferguson, 193 AD3d at 1257).⁵

Defendant additionally argues that County Court failed to conduct a sufficient inquiry into whether a prospective juror who expressed certain opinions about intoxicated driving during voir dire could be fair and impartial.  We agree with the People that this argument is unpreserved, as defendant did not challenge such juror at the appropriate time when given the opportunity to do so and also failed to object when the court stated that it was going to empanel such juror (see CPL 270.20[1][b];  People v. Vias, 167 AD3d 950, 951 [2d Dept 2018], lv denied 33 NY3d 955 [2019];  People v. Higgins, 57 AD3d 1315, 1316 [3d Dept 2008], lv denied 12 NY3d 817 [2009] ).

Next, defendant asserts that the DWI charges should have been dismissed as inclusory concurrent counts of the vehicular assault in the first degree charges.  In addition to being unpreserved, such argument is unavailing.  A conviction for vehicular assault in the first degree does not depend upon proof that an individual caused serious physical injury to another by driving a motor vehicle while intoxicated by alcohol.  A conviction may alternatively be premised upon, among other things, proof that an individual caused serious physical injury to another by driving a motor vehicle while ability impaired by drugs under Vehicle and Traffic Law § 1194(4) (see Penal Law §§ 120.04[2][b];  120.03[1] ).  Thus, it is possible to commit vehicular assault in the first degree “without concomitantly ․, by the same conduct,” driving while intoxicated by alcohol under subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 and the DWI charges against defendant are not inclusory concurrent counts of the former (People v. Zakrzewski, 249 AD3d 1314, 1328 [3d Dept 2026] [internal quotation marks and citation omitted], lv denied 45 NY3d 1042 [2026], lv dismissed 45 NY3d 1042 [2026];  see generally CPL 300.30[4];  People v. Joseph, 75 AD3d 1080, 1082 [4th Dept 2010], lv denied 15 NY3d 853 [2010] ).

Turning to the arguments raised in defendant's supplemental pro se brief, we are unpersuaded by his ineffective assistance of counsel claim relative to his prior counsel's failure to request a Mapp /Dunaway /Wade hearing.  The testimony at the Huntley hearing regarding the circumstances of defendant's encounter with law enforcement and his subsequent arrest revealed no factual basis to support holding a Mapp/Dunaway/Wade hearing (see generally People v. Mendoza, 82 N.Y.2d 415, 425–426 [1993] ).  Accordingly, counsel was not ineffective for failing to file a motion that had little chance of success (see People v. Henley, 232 AD3d 1117, 1121 [3d Dept 2024], lv denied 43 NY3d 930 [2025] ).⁶

Defendant also argues in his supplemental pro se brief that his “pre-Miranda statements made to [the deputy] should have been suppressed.”  Insofar as County Court's decision following the Huntley hearing suppressed “all statements given by defendant as a result of custodial interrogation after [the] 1:47:36” timestamp on the body camera footage until the time that he was administered and waived his Miranda rights,⁷ we construe defendant's argument as pertaining to any statements made to the deputy prior to that time.  Such argument is unavailing.  The footage shows that defendant was not being subjected to a custodial interrogation prior to the 1:47:36 timestamp and, thus, suppression of his earlier statements to the deputy was unwarranted (see People v. Fragassi, 178 AD3d 1153, 1156 [3d Dept 2019], lv denied 34 NY3d 1128 [2020] ).  Defendant's remaining contentions cannot be reviewed “due to his failure to submit an adequate record” (People v. Crowley, 234 AD3d 1125, 1129 [3d Dept 2025] ).

Garry, P.J., Aarons, Reynolds Fitzgerald and Ryba, JJ., concur.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The sentencing appearance in this case was combined with two other criminal dockets against defendant.  The sentences imposed in this case were run consecutively with sentences imposed in the other two cases.

2.   Defendant has filed two briefs on appeal, one submitted by counsel and one submitted on a pro se basis.  Defendant's pro se brief contains two sections challenging the verdict on weight of the evidence grounds, the second of which references a handgun and appears to be conflating this case with another case that is not the subject of this appeal.

3.   At trial, the People admitted into evidence a redacted version of footage from the deputy's body camera depicting his interactions with defendant at the accident scene.

4.   The deputy described the weather conditions as he was driving to the accident scene as “unseasonably warm” with a “light rain.”

5.   Related to the vehicular assault in the first degree counts, at the beginning of the trial, defendant admitted to allegations set forth in a special information asserting that, within the prior 10 years, his license or privilege to operate a motor vehicle had been revoked in connection with a previous DWI conviction under Vehicle and Traffic Law § 1192.

6.   We further note that, during the court appearance at which defendant elected to proceed pro se, his assigned counsel, immediately prior to being relieved, requested an adjournment of the trial date so that defendant could file additional pretrial motions and County Court specifically informed defendant that he would be given the opportunity to file a motion seeking a Mapp/Dunaway hearing.  Defendant subsequently filed a motion seeking a Mapp/Dunaway hearing, which was denied by County Court in a decision and order dated May 3, 2023.  As defendant ultimately moved for the relief he faults counsel for not pursuing and County Court considered the motion, his ineffective assistance of counsel claim in this regard is unavailing.

7.   In rendering such decision, County Court declined “to go through the body-camera footage, on a minute by minute basis, to determine which statements [after the 1:47:36 timestamp], if any, would be admissible as spontaneous declarations and not the result of custodial interrogation.”  County Court stated that, if the People sought to introduce any of defendant's statements subsequent to the 1:47:36 timestamp during their case-in-chief, they could make an application “identif[ying] by time stamp exactly what statement(s) they seek to introduce, as well as their theory of admissibility.”

Clark, J.