PEOPLE v. RAMIREZ (2020)

ORDERED that the judgment of conviction is affirmed.

Following a jury trial, defendant was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) and consumption or possession of alcoholic beverages in certain motor vehicles (Vehicle and Traffic Law § 1227 [1]) based upon testimony and other evidence that defendant had been driving his car, that he exhibited signs of impairment, and that there were multiple bottles of beer in his car, both opened and closed, and a cup in the driver's side cup holder containing liquid that smelled like alcohol. Defendant contends on appeal that the arresting officer's testimony that he spoke to a witness at the scene, without setting forth what that witness had said, nevertheless violated his rights under the Confrontation Clause and constituted inferential bolstering because that witness did not testify, arguing that the jury could infer from the context what the witness said. Defendant also argues that, by testifying about what another testifying witness had told him at the scene, the arresting officer improperly bolstered that witness's testimony with his prior consistent statements.

Both of defendant's arguments are unpreserved for appellate review (see CPL 470.05 [2]; People v. Arroyo, 128 AD3d 843 [2015]; People v. Bowen, 53 Misc 3d 149[A], 2016 NY Slip Op 51657[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ). In any event, they are also without merit. The arresting officer's testimony that he spoke to a witness at the scene was not likely, under the circumstances presented, to lead to any improper or prejudicial inferences (see People v. Ruis, 11 AD3d 714 [2004]). On the other hand, the officer's testimony repeating what another trial witness told him at the scene did constitute evidence of a prior consistent statement by another testifying witness, but there was no prejudice under the circumstances (see People v. Smith, 22 NY3d 462 [2013]). We note that, even if inferential bolstering had occurred, we would find it to be harmless given the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 NY2d 230, 241-242 [1975]).

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.