People v. Keener , 30 N.Y.S.3d 345 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 106725
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
WILLIAM R. KEENER,
Appellant.
________________________________
Calendar Date: February 18, 2016
Before: Peters, P.J., Garry, Rose and Devine, JJ.
__________
George P. Ferro, Albany, for appellant, and appellant
pro se.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.
__________
Peters, P.J.
Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered April 16, 2014, upon a verdict
convicting defendant of the crime of aggravated unlicensed
operation of a motor vehicle in the first degree and the traffic
infraction of driving while ability impaired.
During the early morning hours of November 6, 2012, Town of
Saugerties Police Officer Bret Rell observed defendant driving a
vehicle without tail lights on State Route 212 in the Town of
Saugerties, Ulster County. Rell activated his emergency lights
and siren and attempted to pull over defendant's vehicle, but
defendant continued driving for an additional 3½ miles until his
vehicle was boxed in by two patrol vehicles. Defendant was
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thereafter placed under arrest and, while en route to the police
station, police detected an odor of alcohol emanating from his
breath. Once at the station, police administered four sobriety
tests – all of which defendant failed – and defendant agreed to
submit to a chemical test, which yielded a blood alcohol content
of .15%.
Defendant was charged with two counts of driving while
intoxicated and one count each of aggravated unlicensed operation
of a motor vehicle in the first degree, reckless driving and
unlawful fleeing a police officer in a motor vehicle in the third
degree. Following a combined Huntley and Dunaway hearing, County
Court suppressed all but one of the statements that defendant had
made at the police station before he was advised of his Miranda
rights and ruled that the results of the field sobriety tests and
the chemical test were admissible. A jury trial ensued, at the
conclusion of which defendant was found guilty of aggravated
unlicensed operation of a motor vehicle in the first degree and
driving while ability impaired as a lesser included offense of
driving while intoxicated. He appeals, and we affirm.
Defendant's challenge to the legal sufficiency of the
evidence supporting his conviction for aggravated unlicensed
operation of a motor vehicle in the first degree is unpreserved
for our review, as he failed to move for a trial order of
dismissal with respect to that count of the indictment (see
People v Gray, 86 NY2d 10, 20-21 [1995]; People v Davis, 133 AD3d
911, 912 [2015]). To the extent that his pro se submission can
be read to challenge the weight of the evidence supporting such
conviction, we find the argument to be without merit. During his
arraignment on a special information filed by the People,
defendant admitted that he had been previously convicted of
felony driving while intoxicated, that his license was thereafter
suspended based on his failure to submit to a chemical test, and
that he knew or had reason to know that his license remained
suspended on the date of the present offenses (see Vehicle and
Traffic Law § 511 [1] [a]; [2] [a] [ii]; [3] [a] [i]). Such
admissions established those elements of the instant offense and
relieved the People of their burden of proving them (see CPL
200.60 [3] [a]; People v Dailey, 260 AD2d 81, 84-85 [1999], lv
denied 94 NY2d 821 [1999]; see also People v Cooper, 78 NY2d 476,
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482-483 [1991]; People v Burgess, 89 AD3d 1100, 1101 [2011]).
Defendant next contends that County Court should have
suppressed his oral statement that he had consumed a "couple of
beers" that evening, which was made while he was in custody and
before he had been advised of his Miranda rights. Inasmuch as
that statement was not introduced at trial, the propriety of that
aspect of the court's suppression ruling is academic (see People
v Joseph, 97 AD3d 838, 839 [2012]; People v Kirton, 36 AD3d 1011,
1012 [2007], lv denied 8 NY3d 947 [2007]; People v Nevins, 16
AD3d 1046, 1048 [2005], lv denied 4 NY3d 889 [2005], cert denied
548 US 911 [2006]).
Defendant's assertion that the results of his chemical test
should have been suppressed because his right to counsel was
violated is similarly without merit. "While an individual has
the right to consult with an attorney in deciding whether to
submit to a sobriety test, it is only a qualified right to
counsel, not a constitutional one" (People v Curkendall, 12 AD3d
710, 714 [2004], lv denied 4 NY3d 743 [2004] [citations omitted];
see People v Smith, 18 NY3d 544, 548 [2012]; People v Higgins,
124 AD3d 929, 933 [2015]). To invoke this limited right, the
request must be specific and unequivocal (see People v Higgins,
124 AD3d at 933-934; People v Vinogradov, 294 AD2d 708, 709
[2002]; People v Hart, 191 AD2d 991, 992 [1993], lv denied 81
NY2d 1014 [1993]). Thus, "if a defendant arrested for driving
while under the influence of alcohol asks to contact an attorney
before responding to a request to take a chemical test, the
police 'may not, without justification, prevent access between
the criminal accused and his [or her] lawyer, available in person
or by immediate telephone communication, if such access does not
interfere unduly with the matter at hand'" (People v Smith, 18
NY3d at 549, quoting People v Gursey, 22 NY2d 224, 227 [1968];
see People v Washington, 23 NY3d 228, 233 [2014]).
Here, Rell administered chemical test warnings to defendant
at the police station (see Vehicle and Traffic Law § 1194 [2])
and asked him, on more than one occasion, whether he would submit
to a chemical test. Although initially providing nonresponsive
statements to Rell's repeated inquiry, defendant ultimately
agreed to submit to the test. At that point, Rell advised
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defendant of his Miranda rights and, when asked if he would talk
without an attorney, defendant responded, "No. I want my
attorney to come here before I do anything further." Several
minutes later, defendant asked the officer who was preparing the
chemical test whether the officer had called defendant's
attorney, apparently under the mistaken belief that the police
would do so for him. The officer responded that he had not, but
that defendant could call his attorney if he would like. When
defendant again expressed his understanding that he did not have
to do anything until his attorney was present, this officer
reiterated that he could arrange for defendant to call the
attorney. Defendant, however, never took the officer up on this
offer nor made any further mention of his attorney before
submitting to the chemical test a few minutes later. Even
assuming that defendant's statements could be viewed as "'a
specific request for an attorney vis-à-vis th[e] decision'" to
submit to a chemical test (People v Higgins, 124 AD3d at 933-934,
quoting People v Curkendall, 12 AD3d at 715), it surely cannot be
said that the police "prevent[ed] access between [defendant] and
his lawyer" in connection with such decision (People v Gursey, 22
NY2d at 227; see People v Smith, 18 NY3d at 550). Thus, the
results of the chemical test were admissible at trial.
Lastly, defendant challenges the manner in which County
Court responded to a note from the jury. During deliberations,
County Court received a note from the jury that stated: "We, the
jury, want it known that one juror[] has withheld the fact he
served on a jury of a [driving while intoxicated] case where he
regrets his decision of not sticking to his conviction. This is
causing him to not deliberate free of bias and with preconceived
ideas." The court immediately read the jury note verbatim in the
presence of the prosecutor, defense counsel and defendant,
thereby fulfilling its "core responsibility" under CPL 310.30 "to
give meaningful notice to counsel of the specific content of the
jurors' request – in order to ensure counsel's opportunity to
frame intelligent suggestions for the fairest and least
prejudicial response – and to provide a meaningful response to
the jury" (People v Kisoon, 8 NY3d 129, 134 [2007]; accord People
v Silva, 24 NY3d 294, 298-299 [2014]; see People v O'Rama, 78
NY2d 270, 277 [1991]; People v Lee, 129 AD3d 1295, 1299 [2015]).
County Court then asked each side for its input and, following a
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brief colloquy with the court, defense counsel indicated that he
would not consent to the juror's discharge or an inquiry by the
court to determine whether the juror in question was grossly
disqualified to serve. Defense counsel and the prosecutor
ultimately agreed that County Court should reread an Allen
charge, which it had given earlier that day, and defense counsel
did not object when the response to the note was communicated to
the jury. Thus, defendant's present contention – that County
Court should have made a probing inquiry to determine whether a
juror was unqualified – is unpreserved for our review (see People
v Lee, 129 AD3d at 1299-1300; People v Rivera, 83 AD3d 1370,
1370-1371 [2011], lv denied 17 NY3d 904 [2011]; compare People v
Brown, 129 AD3d 854, 857-858 [2015]).
Defendant's remaining contentions, to the extent not
specifically addressed herein, have been reviewed and found to be
lacking in merit.
Garry, Rose and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court