PEOPLE v. CHAMBERLAIN (2021)

ORDERED that the judgments of conviction are affirmed.

Following a jury trial, defendant was convicted of common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving on the wrong side of the road (Vehicle and Traffic Law § 1127 [a]). The sole contention defendant raises on appeal is that, under New York law, she was denied the effective assistance of counsel.

Defendant's trial attorney's failure to move to suppress evidence of defendant's refusal to take a chemical breath test did not amount to ineffective assistance since “[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion ․ that has little or no chance of success” (People v Carver, 27 NY3d 418, 421 [2016] [internal quotation marks and citation omitted]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d 277, 287 [2004]). Evidence of defendant's ultimate refusal to take a chemical breath test after being afforded two opportunities to talk to her attorney before deciding whether to take the test was admissible to show consciousness of guilt (see People v MacDonald, 89 NY2d 908, 910 [1996]; People v Thomas, 46 NY2d 100, 106 [1978]; People v Sirico, 135 AD3d 19, 23 [2016]), and the District Court provided the jury with a limiting instruction on this point (see People v MacDonald, 89 NY2d at 910).

With respect to the evidence presented of defendant's two attempts to take a portable breath test (PBT) at the scene, for which there were no results because defendant provided insufficient breath samples, it is well settled that, while evidence of a PBT is not admissible as proof of intoxication (see People v Palencia, 130 AD3d 1072 [2015]; People v Krut, 133 AD3d 781, 784 [2015]; People v Kulk, 103 AD3d 1038, 1040 [2013]), evidence of a defendant's failure to properly take a PBT can be admitted to show consciousness of guilt (see People v MacDonald, 89 NY2d at 910), “particularly in light of [a] trial court's limiting instructions to the jury on this point” (id.). Here, however, the District Court provided the jury with a limiting instruction as to consciousness of guilt in regard only to defendant's repeated refusal to take a postarrest chemical breath test, not the two PBTs. Nevertheless, defendant's trial attorney's error in failing to object to the admission of the evidence of the PBTs, without more, “was not so serious as to compromise defendant's right to a fair trial and did not constitute ineffective assistance” (People v Stover, 178 AD3d 1138, 1147 [2019] [internal quotation marks omitted]; see People v Every, 146 AD3d 1157, 1165-1166 [2017], affd 29 NY3d 1103 [2017]).

Upon a review of the record as a whole, we find that defendant was not denied the effective assistance of counsel since her trial counsel provided her with meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).

Accordingly, the judgments of conviction are affirmed.

GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur.