BOMBARD, STEPHEN R., PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

773 KA 14-01519 PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

STEPHEN R. BOMBARD, DEFENDANT-APPELLANT.

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (MELANIE J. BAILEY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered February 26, 2014. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated, a class E felony.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of driving while intoxicated (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]). Defendant was sentenced to an indeterminate prison term of 1a to 4 years and ordered to pay a fine in the amount of $2,000. Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).

Defendant failed to preserve for our review his contentions that County Court erred in admitting evidence of his refusal to submit to a breathalyzer test and in instructing the jury that an adverse inference could be drawn from his refusal (see People v Kithcart, 85 AD3d 1558, 1559, lv denied 17 NY3d 818; see generally CPL 470.05 [2]). In any event, defendant’s contentions lack merit. “To establish a refusal, the People must show that the failure to register a sample is the result of defendant’s action and not of the machine’s inability to register the sample” (People v Adler, 145 AD2d 943, 944, lv denied 73 NY2d 919; see People v Bratcher, 165 AD2d 906, 907, lv denied 77 NY2d 958; Matter of Van Sickle v Melton, 64 AD2d 846, 846; see generally Vehicle and Traffic Law § 1194 [2] [f]), and we conclude that the People met that burden here. The People also were therefore entitled to an adverse inference charge based on defendant’s refusal (see

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People v Thomas, 46 NY2d 100, 110, appeal dismissed 444 US 891; CJI2d[NY] Vehicle & Traffic Law § 1192 [3]).

Finally, we reject defendant’s contention that the sentence is unduly harsh and severe, particularly in view of defendant’s history of convictions of driving while intoxicated.

Entered: October 7, 2016 Frances E. Cafarell Clerk of the Court