BIRO, LASZLO, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
661
KA 10-01390
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LASZLO BIRO, DEFENDANT-APPELLANT.
TERRENCE BAXTER, BATH, FOR DEFENDANT-APPELLANT.
JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH (BROOKS T. BAKER OF COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered September 30, 2009. The judgment convicted
defendant, upon a jury verdict, of felony aggravated driving while
intoxicated, felony driving while intoxicated, and aggravated
unlicensed operation of a motor vehicle in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of felony aggravated driving while intoxicated
(Vehicle and Traffic Law § 1192 [former (2-a)]; § 1193 [1] [c] [former
(ii)]), felony driving while intoxicated (§ 1192 [3]; § 1193 [1] [c]
[former (ii)]), and aggravated unlicensed operation of a motor vehicle
in the first degree (§ 511 [3] [a] [iii]). We reject the contention
of defendant that he was denied effective assistance of counsel based
upon defense counsel’s alleged failure to conduct an adequate cross-
examination of the arresting officer and the officer who administered
the breathalyzer test. “To prevail on a claim of ineffective
assistance, defendant[] must demonstrate that [he was] deprived of a
fair trial by less than meaningful representation; a simple
disagreement with strategies, tactics or the scope of possible
cross-examination, weighed long after the trial, does not suffice”
(People v Flores, 84 NY2d 184, 187). Although defense counsel did not
cross-examine the officers concerning administration of the field and
chemical sobriety tests, defendant fails to identify a single error in
those tests with respect to which defense counsel should have
inquired. Moreover, the record establishes that defense counsel’s
strategy was to challenge the People’s allegation that defendant was
operating the vehicle in question, an element of the charges against
him (see § 511 [3] [a] [iii]; § 1192 [former (2-a)], [3]). In
accordance with that strategy, defense counsel elicited testimony
during cross-examination of the officers that the vehicle was stopped
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KA 10-01390
and the engine was off when they approached it, that the vehicle
appeared to be disabled and that the vehicle may have been operated by
defendant’s father, who was sitting in the passenger seat thereof.
We reject the further contention of defendant that he was denied
effective assistance of counsel based on defense counsel’s failure to
request a hearing pursuant to People v Ingle (36 NY2d 413) to
challenge the legality of the vehicle stop or a probable cause hearing
to challenge the legality of defendant’s arrest. It is well settled
that “a showing that [defense] counsel failed to make a particular
pretrial motion generally does not, by itself, establish ineffective
assistance of counsel” (People v Rivera, 71 NY2d 705, 709; see also
People v Webster, 56 AD3d 1242, lv denied 11 NY3d 931). Here, the
record establishes that the police had the authority to approach the
vehicle and request identification from defendant inasmuch as the
vehicle was parked partially in the traffic lane of a roadway, thereby
creating a traffic hazard (see generally People v Richardson, 27 AD3d
1168, 1169; People v Dunnigan, 1 AD3d 930, 931, lv denied 1 NY3d 627).
The record also establishes that the police had probable cause to
arrest defendant based on, inter alia, the odor of alcohol and the
open container of alcohol in the vehicle, defendant’s admission that
he had been drinking and his failure to pass field sobriety tests (see
People v D’Augustino, 272 AD2d 914, lv denied 95 NY2d 851; People v
Schroeder, 229 AD2d 917). Thus, defendant was not denied effective
assistance of counsel based on defense counsel’s failure to “make . .
. motion[s] . . . that ha[d] little or no chance of success” (People v
Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702).
We have reviewed the remaining instances of alleged ineffective
assistance of counsel raised by defendant and conclude that he
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).
Finally, we note that the certificate of conviction incorrectly
reflects that defendant was convicted of felony driving while
intoxicated under Vehicle and Traffic Law § 1192 (2), and it must
therefore be amended to reflect that he was convicted of felony
aggravated driving while intoxicated under Vehicle and Traffic Law §
1192 (former [2-a]) (see People v Saxton, 32 AD3d 1286).
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court