People v. Kejariwal (Varun)

People v Kejariwal (2022 NY Slip Op 50378(U)) [*1] People v Kejariwal (Varun) 2022 NY Slip Op 50378(U) [75 Misc 3d 128(A)] Decided on April 28, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TIMOTHY S. DRISCOLL, J.P., HELEN VOUTSINAS, BARRY E. WARHIT, JJ 2019-1839 N CR The People of the State of New York, Respondent, against Varun Kejariwal, Appellant. Stephen N. Preziosi, for appellant. Nassau County District Attorney (Cristin N. Connell, Monica M. C. Leiter and Autumn S. Hughes of counsel), for respondent. Appeal from a judgment of the District Court of Nassau County, First District (Elizabeth Fox-McDonough, J.), rendered October 24, 2019. The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired, and imposed sentence. ORDERED that the judgment of conviction is affirmed. In 2018, defendant was charged in an information with assault in the third degree (Penal Law § 120.00 [2]), reckless endangerment in the second degree (Penal Law § 120.20), resisting arrest (Penal Law § 205.30), harassment in the second degree (Penal Law § 240.26 [1]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). Approximately 15 months after his arraignment, defendant pleaded guilty to driving while ability impaired, in satisfaction of the accusatory instrument, and sentence was imposed. On appeal, defendant contends that his counsel was ineffective for two reasons: (1) failing to move to dismiss the information on statutory speedy trial grounds and (2) neglecting to inform him of a defense to the pleaded-to count of driving while ability impaired. Both claims are unavailing. Preliminarily, the speedy trial statute was amended effective January 1, 2020, after defendant's 2019 guilty plea in this matter. Therefore, with respect to the count of driving while ability impaired, a motion made to dismiss on statutory speedy trial grounds would necessarily have failed because, prior to the 2020 amendment, "a defendant charged with a traffic infraction ha[d] no statutory right to a speedy trial" (People v Taylor, 189 Misc 2d 313, 314 [App Term, 2d Dept, 9th & 10th Jud Dists 2001]). However, although the traffic infraction, to which defendant pleaded guilty, was not dismissible pursuant to CPL 30.30, this does not end the analysis of whether counsel was ineffective for not moving to dismiss the other counts. If the others would have been dismissed upon the filing of a motion by counsel, then the benefit of the plea bargain defendant received diminishes significantly, rendering doubtful that defendant would have been so inclined to plead guilty. The parties do agree that certain time periods, totaling 43 days, were chargeable to the People. Defendant argues, and the People dispute that additional time should be charged. During the December 4, 2018 - February 4, 2019 adjournment period, defendant's omnibus motion was under consideration by the court. Off-calendar on January 14, 2019, the District Court issued a decision thereon. We find no merit to defendant's argument that the remainder of this period is chargeable to the People. While defendant also argues that the subsequent adjournment period, from February 4 to March 6, 2019, should be chargeable to the People, he fails to explain why the People are not entitled to the usual Green time exclusion to prepare for the hearing granted by the court in its decision (see People v Green, 90 AD2d 705 [1982]). Even assuming that the February 4 - March 6, 2019 adjournment period is not excludable Green time (see id.), the addition of this 30-day period to the 43 undisputed chargeable days would only increase the chargeable time to 73 days. Defendant also argues that the entire September 23 - October 24, 2019 adjournment period is chargeable to the People. The prosecutor, who had previously been ready for trial, was not ready to proceed to trial on September 23, 2019, and requested a one-week adjournment. In this post-readiness context, "[a]ny time within the adjournment period that exceeds the time requested is excluded" (People v Wade, 64 Misc 3d 144[A], 2019 NY Slip Op 51293[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Thus, the People are only charged with the seven days of this time period that the prosecutor had requested, which days are already accounted for in the 43 chargeable days to which the parties are in agreement. Since only 43 or, at the most, 73 chargeable days had passed at the time of defendant's guilty plea, a motion to dismiss on statutory speedy trial grounds would have been frivolous. "[T]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion . . . that has little or no chance of success" (People v Carver, 27 NY3d 418, 421 [2016] [internal quotation marks omitted]; see People v Caban, 5 NY3d 143, 152 [2005]). Defendant next contends that he received the ineffective assistance of counsel because counsel advised him to accept the People's plea offer despite there being, according to defendant, a viable trial defense against the charge of driving while ability impaired. To be entitled to relief [*2]under the New York State Constitution on the ground of ineffective assistance of counsel, 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 Caban, 5 NY3d at 152). Under the federal standard of review, a "defendant must show that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense" Strickland v Washington, 466 US 668, 687 [1984]). Preliminarily, we note that, in this case, nothing in the limited record before this court, beyond defendant's self-serving attestation, indicates that defense counsel did in fact recommend that defendant accept the People's plea offer (cf. People v Ramos, 63 NY2d 640, 643 [1984] ["Inasmuch as defense counsel's misadvice . . . was not placed on the record at the time of the plea, it is not entitled to judicial recognition"]). Even assuming that counsel did advise defendant to plead guilty, counsel was not ineffective for having done based on the record before us. Defendant claims that the breathalyzer test result, which revealed that he had a .06% blood alcohol content (BAC), was suppressible or, in the alternative, would constitute definitive proof at trial that he was not impaired by alcohol beyond a reasonable doubt, and that counsel should have informed him of these facts. This supposition rests upon two erroneous legal conclusions. First, defendant asserts that the so-called "two-hour rule" for breathalyzer BAC analysis (see Vehicle and Traffic Law § 1194 [2] [a] [1]) renders his test, which took place more than two hours after his arrest, inadmissible as trial evidence. However, the "two-hour limitation does not apply where the defendant expressly and voluntarily consents to the administration of the breath test" (People v Marietta, 61 AD3d 997, 998 [2009]), as was the case here. Second, defendant misinterprets 10 NYCRR § 59.2 as creating a statutory presumption of a .01 percentage point error with breathalyzer results, and thus argues that his actual BAC could have been .05%, which would constitute "prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition" (Vehicle and Traffic Law § 1195 [2] [a]). In fact, 10 NYCRR § 59.2 creates no such statutory presumption. Rather, the statute requires that, prior to being used to test a sample with unknown BAC (e.g., defendant's breath), the testing device must itself first be tested with a "reference sample of known alcoholic content greater than or equal to 0.08 percent weight per volume" (10 NYCRR § 59.2 [b] [2]), and the test result must lie within .01 percentage points of the known concentration, to be deemed operable. Defendant does not dispute that the breathalyzer machine was properly tested and in working order when it was used to analyze his breath sample. In any event, even if defendant could have successfully moved to suppress his BAC test result at trial, that would not necessarily have translated to an acquittal of the charge of driving while ability impaired. A defendant's BAC level is not an element of that charge, and there was sufficient other evidence of defendant's impaired ability to drive, including defendant's vehicle speeding and swerving, and defendant's physical condition, which included bloodshot watery eyes, slurred speech and the odor of alcohol on his breath. Moreover, we note that defendant was [*3]facing four other Penal Law counts, three class A misdemeanors and one violation; the suppression of his BAC test result would have had no effect on the prosecution of those charges. In view of the foregoing, defendant's acceptance of the People's offer to plead guilty to a traffic infraction, which allowed him to avoid the possibility of a criminal record and incarceration, and pay the minimal mandatory fine, was reasonable (see People v Gale, 130 AD2d 588, 589 [1987]). Noting that the appellate record contains no indication, beyond defendant's attestation, that counsel advised him to plead guilty, but assuming without deciding that this advice was given, we do not agree with defendant's assertion that counsel was ineffective for so advising him (see People v Barboni, 21 NY3d 393, 405-406 [2013] ["It is well settled that '(t)o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure . . . . Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment' "], quoting People v Rivera, 71 NY2d 705, 709 [1988]). The plea offer defendant accepted was proffered by the People for the first time on the same day the plea and sentence took place. The District Court, after being informed by both parties that they were ready to proceed to trial that day, informed defendant that, if he did not accept the plea offer, "the offer is revoked and you will have to go to trial." This statement of fact did not constitute undue coercion of defendant by the court to plead guilty (see e.g. People v Faison, 270 AD2d 717, 717 [2000] ["The fact that the plea offer was scheduled to expire upon the conclusion of the arraignment did not render defendant's acceptance thereof involuntary or the product of coercion"]; People v Toledo, 243 AD2d 925, 926 [1997] ["We have routinely held that the fact that a defendant must accept or reject a plea offer within a short period of time does not, without more, amount to coercion"]). After agreeing to accept the plea offer, defendant balked when the prosecutor requested that the issuance of an order of protection in favor of the complainant be included as part of the plea offer. Defendant asked to discuss this with his counsel, and the court replied, "I will give you one minute or else I am sending the case out for trial." We need not decide whether the court's statement "implicated . . . defendant's fundamental right to effectively confer with counsel" (People v Norris, 190 AD2d 871, 872 [1993]), as the People ultimately rescinded the protective order demand, and, thus, error, if any, was rendered moot. Accordingly, the judgment of conviction is affirmed. DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 28, 2022