PEOPLE v. ROBINSON

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The PEOPLE, etc., respondent, v. Sterling ROBINSON, appellant.

Decided: March 29, 2011

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine A. Levine of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Terry–Ann Llewellyn of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered July 19, 2007, convicting him of criminal possession of a weapon in the third degree and operating a motor vehicle while under the influence of alcohol, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

There is no merit to the defendant's contention that evidence of his refusal to submit to a blood test, which occurred more than two hours after his arrest, was improperly admitted into evidence. Vehicle and Traffic Law § 1194(2)(f) provides that evidence of a person's refusal to submit to a chemical test is admissible in any trial for driving while under the influence of alcohol or drugs, upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and the person persisted in the refusal. Vehicle and Traffic Law § 1194(2)(a) contains a two-hour time limit within which a chemical test may be performed on a person who is incapable of consenting. However, the two-hour time limit does not apply to court-ordered tests conducted pursuant to Vehicle and Traffic Law § 1194(3) (see People v. Atkins, 85 N.Y.2d 1007, 1009, citing People v. McGrath, 135 A.D.2d 60, affd 73 N.Y.2d 826), or independent chemical tests conducted pursuant to Vehicle and Traffic Law § 1194(4)(b) (see People v. Finnegan, 85 N.Y.2d 53, 59, cert denied 516 U.S. 919). The time limit set forth in Vehicle and Traffic Law § 1194(2)(a) was not intended by the Legislature to be an “absolute rule of relevance, proscribing admission of [test] results [obtained] after [such a time] period” (People v. Atkins, 85 N.Y.2d at 1009). Moreover, Vehicle and Traffic Law § 1194(2)(f) does not include any time limit. Where, as here, the person is capable, but refuses to consent, evidence of that refusal, as governed by Vehicle and Traffic Law § 1194(2)(f), is admissible into evidence regardless of whether the refusal is made more than two hours after arrest (see People v. Atkins, 85 N.Y.2d at 1009, citing People v. McGrath, 135 A.D.2d 60; People v. Ward, 176 Misc.2d 398, 403; People v. Morales, 161 Misc.2d 128, 135).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see People v. Caban, 5 NY3d 143; People v. Taylor, 1 NY3d 174; People v. Benevento, 91 N.Y.2d 708).

The defendant's contention that various comments made by the prosecutor during his summation were improper and deprived him of a fair trial is unpreserved for appellate review, and we decline to review this contention in the exercise of our interest of justice jurisdiction (see CPL 470.05[2]; People v. Romero, 7 NY3d 911, 912; People v. Valerio, 70 AD3d 869; People v. Clark, 65 AD3d 1055).

The defendant's remaining contentions raised in his pro se supplemental brief also are unpreserved for appellate review, and we decline to review them in the exercise of our interest of justice jurisdiction (see CPL 470.05[2] ).

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