People v. Despen (Bridget)

People v Despen (2021 NY Slip Op 50880(U)) [*1] People v Despen (Bridget) 2021 NY Slip Op 50880(U) [73 Misc 3d 127(A)] Decided on September 9, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on September 9, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ 2018-2590 N CR The People of the State of New York, Respondent, against Bridget Despen, Appellant. Nassau County Legal Aid Society (Tammy Feman and Marquetta Christy of counsel), for appellant. Nassau County District Attorney (Judith R. Sternberg, Libbi L. Vilher and Benjamin Kussman of counsel), for respondent. Appeal from judgments of the District Court of Nassau County, First District (Elizabeth Fox-McDonough, J.), rendered October 30, 2018. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated (common law) and failing to use a designated lane, respectively, and imposed sentences. ORDERED that the judgment convicting defendant of driving while intoxicated (common law) is reversed, on the law, and the matter is remitted to the District Court for a new trial on that charge; and it is further, ORDERED that the judgment convicting defendant of failing to use a designated lane is reversed, on the facts, the simplified traffic information charging that offense is dismissed, and the fine, if paid, is remitted. In separate simplified informations, defendant was charged with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), and failing to use a designated lane (Vehicle and Traffic Law § 1128 [c]), respectively. At a jury trial, the arresting trooper testified that he observed defendant's red Toyota [*2]Camry in the left lane of the eastbound Southern State Parkway. The vehicle drifted twice from the left lane across a solid white line into the center lane and, then, overcorrected back into the left lane. He also observed the vehicle drift from the left lane onto the shoulder of the left side of the road and drift back into the left lane. He initiated a traffic stop and asked defendant, the driver, for her license and registration. Defendant told him that she had had a glass of wine at a restaurant earlier that evening. He observed that defendant had bloodshot, watery eyes and slurred speech, and that the odor of an alcoholic beverage emanated from her breath. After defendant had exited the vehicle, the trooper administered the horizontal gaze nystagmus test to defendant, during which defendant exhibited six out of six possible clues for intoxication. It was his opinion that defendant was drunk. He did not administer any additional field sobriety tests because defendant was wearing high heels and he was afraid that she would fall due to the terrain. He placed defendant under arrest and brought her to the police barracks where she consented to take a breathalyzer test. Another trooper testified that he administered a breathalyzer test to defendant, which indicated a blood alcohol content of .13%. The jury found defendant guilty of driving while intoxicated (common law) and failing to use a designated lane, and acquitted her of the charge of driving while intoxicated (per se). On appeal, defendant contends, among other things, that the evidence was legally insufficient to establish her guilt of the charges, that the verdicts were against the weight of the evidence, and that, based on the cumulative effect of various alleged errors, defense counsel's performance constituted the ineffective assistance of counsel. Upon the exercise of our factual review power (see CPL 470.15), we determine that an acquittal on the charge of failing to use a designated lane would not have been unreasonable, and further, that the verdict of guilt with respect to that charge was against the weight of the evidence. Indeed, the People concede that defendant was charged with the wrong section of the Vehicle and Traffic Law. Consequently, that charge must be dismissed. We find that the evidence was legally sufficient to establish defendant's guilt of driving while intoxicated (common law) beyond a reasonable doubt and that the verdict was not against the weight of the evidence. While there is thus no basis to dismiss that charge, we find that a new trial thereon is required. A defendant in a criminal case has a constitutional right to receive the effective assistance of counsel (see People v Miller, 87 AD3d 1075 [2011]; US Const, 6th Amend; NY Const, art I, § 6). "[W]hat constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case" (People v Rivera, 71 NY2d 705, 708 [1988]). To establish a claim of ineffective assistance of counsel, a defendant must "demonstrate the absence of [any] strategic or other legitimate explanations for counsel's failure[s]" (id. at 709). To be entitled to relief under the New York State Constitution, a defendant must establish that his counsel did not provide him with meaningful representation (see People v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Caban, 5 NY3d 143, 152 [2005]). Here, we find, based upon the totality of the circumstances presented, that defendant was deprived of the effective assistance of counsel (see generally People v Jones, 167 AD3d 443, 444 [2018]; People v Orama, 157 AD3d 967 [2018]). Defendant's remaining contentions are unpreserved for appellate review, rendered academic or without merit. Accordingly, the judgment convicting defendant of driving while intoxicated (common [*3]law) is reversed and the matter is remitted to the District Court for a new trial on that charge. The judgment convicting defendant of failing to use a designated lane is reversed and the simplified traffic information charging that offense is dismissed. GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 9, 2021