People v. Echevarria-Acevedo (Heriberto)

People v Echevarria-Acevedo (2022 NY Slip Op 50787(U)) [*1] People v Echevarria-Acevedo (Heriberto) 2022 NY Slip Op 50787(U) [76 Misc 3d 128(A)] Decided on August 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ 2019-348 S CR The People of the State of New York, Respondent, against Heriberto Echevarria-Acevedo, Jr., Appellant. Suffolk County Legal Aid Society (Amanda E. Schaefer of counsel), for appellant. Suffolk County District Attorney (Edward A. Bannan and Christopher Turk of counsel), for respondent. Appeals from (1) judgments of the District Court of Suffolk County, First District (Karen Kerr, J.), rendered January 22, 2019 and, (2) by permission, from an order of that court dated April 6, 2021. The judgments convicted defendant, upon jury verdicts, of driving while ability impaired by drugs and driving without a headlight illuminated, respectively, and imposed sentences. The order denied defendant's CPL 440.10 motion to vacate the judgments of conviction. ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition, and it is further, ORDERED that the judgments of conviction and the order are affirmed. Insofar as relevant to this appeal, defendant was charged in separate accusatory instruments with, among other things, driving while ability impaired by drugs (Vehicle and Traffic Law § 1192 [4]) and driving without a headlight illuminated (Vehicle and Traffic Law § 375 [2] [a] [I]). Defendant's motion to suppress all evidence was denied following a hearing at which only the arresting officer, Police Officer Ferry, testified. During voir dire, prospective juror number four stated that a police officer's testimony is held to a higher standard. When the court asked that prospective juror if he would "agree that because someone is in law enforcement [this] doesn't make them any more or less credible than anyone else, it is just the job they do?" his response was "No." By a show of hands, several other prospective jurors agreed with that statement. Defense counsel did not challenge for cause any of these prospective jurors, and he did not exhaust his peremptory challenges prior to the completion of jury selection. At the trial, Police Officer Ferry testified, as he had at the suppression hearing, that he and his partner observed a vehicle approaching their vehicle with one headlight not illuminated. Ferry initiated a traffic stop and, after approaching the vehicle, saw defendant slouched over behind the wheel, with his eyes almost completely shut. Ferry heard defendant mumbling. Upon exiting the vehicle, defendant stumbled and then leaned on the vehicle to regain his balance. Defendant denied drinking alcohol but admitted to the officer that he had ingested Oxycodone earlier in the day. A prescription bottle of this drug was found by the officer in defendant's pocket. Ferry further testified that he was trained at the academy with regard to the offense of driving while ability impaired by drugs and alcohol, and he had received training in the administration of field sobriety tests, including the horizontal gaze nystagmus test. His training included instruction that nystagmus is present when an individual is impaired by a drug listed under Public Health Law § 3306. After defendant performed poorly on all three of the field sobriety tests, Ferry concluded that defendant was impaired by drugs and arrested defendant. Defendant's sole witness was defendant's father, who testified that, about an hour after his son's arrest, he observed that both headlights were functioning on defendant's vehicle. Following the trial, the jury found defendant guilty of driving while ability impaired by drugs and driving without a headlight illuminated, and sentences were imposed. Subsequently, defendant moved, pursuant to CPL 440.10, to set aside the judgments of conviction on the ground that he was denied the effective assistance of counsel, as his counsel failed to call defendant's father at the suppression hearing, who would have testified, similar to his trial testimony, that he had observed that both headlights were operating on defendant's vehicle an hour after defendant was arrested. Moreover, defense counsel failed to move to reopen the suppression hearing based upon defendant's father trial testimony. The District Court, without a hearing, denied the motion. Defendant appeals from the judgments of conviction and from the order. Defendant failed to preserve his challenge on appeal that the trial evidence was legally insufficient to establish his guilt of driving while ability impaired by drugs, as defendant did not move to dismiss that charge at the close of all of the evidence on the specific ground raised on appeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492-493 [2008]; People v Jordan, 201 AD3d 946 [2022]). Similarly, defendant's challenge to the legal sufficiency of the evidence [*2]supporting his conviction of driving without a headlight illuminated is unpreserved for appellate review as he failed to renew his motion for a trial order of dismissal made at the close of the People's rebuttal case (see People v Kolupa, 13 NY3d 786, 787 [2009]; People v Acevedo, 136 AD3d 1386 [2016]). In any event, the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), and indulging in all reasonable inferences in the People's favor (see People v Ford, 66 NY2d 428, 437 [1985]), was legally sufficient to establish defendant's guilt of both charges, beyond a reasonable doubt. Moreover, upon the exercise of this court's factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdicts convicting defendant of driving while ability impaired by drugs and driving without a headlight illuminated were not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]). Defendant's contention that his right to a trial by an impartial jury was violated is unpreserved for appellate review, as defendant failed to challenge the prospective jurors for cause in the trial court (see People v Simmons, 119 AD3d 1343 [2014]; People v Scott,197 AD2d 644, 645 [1993]). In any event, an erroneous denial of a challenge for cause by a defendant "does not constitute reversible error unless the defendant has exhausted his peremptory challenges at the time or, if he has not, he peremptorily challenges such prospective juror and his peremptory challenges are exhausted before the selection of the jury is complete" (CPL 270.20 [2]; see People v Lynch, 95 NY2d 243, 248 [2000]; People v Tieman, 132 AD3d 703 [2015]; People v Williams, 97 AD3d 769, 770 [2012]). Here, defendant did not use peremptory challenges on the prospective jurors, and did not exhaust his peremptory challenges. Contrary to defendant's contention, the District Court properly denied his CPL 440.10 motion to vacate the judgments of conviction on the ground that his trial counsel was ineffective (see People v Smith, 82 NY2d 731 [1993]). Defense counsel's strategy not to call defendant's father at the suppression hearing does not amount to ineffective assistance of counsel, as the father's testimony was irrelevant or, at best, would have been weak, since he was not present at the time of the stop and he does not claim to have observed the headlights immediately prior to the stop (see People v Baldi,54 NY2d 137, 146-147 [1981]; People v Fu Chen, 293 AD2d 362 [2002]). Similarly, defense counsel was not ineffective for failing to move to reopen the suppression hearing based upon defendant's father's testimony at trial, as such a motion would have had little or no chance of success (see People v Caban, 5 NY3d 143, 152 [2005]). Under the totality of the circumstances presented, we cannot say that defendant was denied the effective assistance of counsel under either the federal or state constitution (see Strickland v Washington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137 [1987]). Defendant's remaining contention, that the People failed to lay a proper foundation with respect to the officer's qualifications to administer field sobriety tests, lacks merit. Accordingly, the judgments of conviction and the order denying defendant's CPL 440.10 motion are affirmed. EMERSON, J.P., GARGUILO and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: August 11, 2022