People v. Prescott

Appellate Division of the Supreme Court of New York

People v. Prescott

286 A.D.2d 898, 730 N.Y.S.2d 899, 2001 N.Y. App. Div. LEXIS 9114

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 28, 2001

StatusPublished

Cited by4 cases

This text of 286 A.D.2d 898 (People v. Prescott) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Prescott, 286 A.D.2d 898, 730 N.Y.S.2d 899, 2001 N.Y. App. Div. LEXIS 9114 (N.Y. Ct. App. 2001).

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Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him, following a jury trial, of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; 1193 [1] [c]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]), defendant contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Having failed to move to dismiss those charges on the ground of legal insufficiency, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see, People v Gray, 86 NY2d 10, 19). In any event, that contention is without merit. Although defendant’s friend testified that he was driving the vehicle and that he entered a plea of guilty in town court to unlicensed operation of a motor vehicle, it was the province of the jury to determine the credibility of the witnesses (see, People v Bleakley, 69 NY2d 490, 495). The jury was entitled to find that the testimony of defendant’s friend that he was driv[899]*899ing was not credible and that he entered a plea of guilty in order to protect defendant. The other evidence, including the statements of defendant and his friend at the scene, could lead the jury to find that defendant was driving.

Defendant further contends that he was denied a fair trial by the prosecutor’s comment on summation that defendant admitted that he was driving the vehicle. Defense counsel objected to that comment and County Court granted defendant’s request to give curative instructions, thereby alleviating any prejudice to defendant (see, People v Wilson, 284 AD2d 958; People v Marzug, 280 AD2d 974, 975). Defendant failed to preserve for our review his contention that the court’s instruction on reasonable doubt was improper (see, People v Procks, 258 AD2d 951, 952, lv denied 93 NY2d 976). In any event, that contention lacks merit (see, People v Antommarchi, 80 NY2d 247, 252, rearg denied 81 NY2d 759). Defendant received effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Steuben County Court, Furfure, J. — Felony Driving While Intoxicated.) Present — Pigott, Jr., P. J., Green, Pine, Scudder and Lawton, JJ.

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—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him, following a jury trial, of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; 1193 [1] [c]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]), defendant contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Having failed to move to dismiss those charges on the ground of legal insufficiency, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see, People v Gray, 86 NY2d 10, 19). In any event, that contention is without merit. Although defendant’s friend testified that he was driving the vehicle and that he entered a plea of guilty in town court to unlicensed operation of a motor vehicle, it was the province of the jury to determine the credibility of the witnesses (see, People v Bleakley, 69 NY2d 490, 495). The jury was entitled to find that the testimony of defendant’s friend that he was driv[899]*899ing was not credible and that he entered a plea of guilty in order to protect defendant. The other evidence, including the statements of defendant and his friend at the scene, could lead the jury to find that defendant was driving.

Defendant further contends that he was denied a fair trial by the prosecutor’s comment on summation that defendant admitted that he was driving the vehicle. Defense counsel objected to that comment and County Court granted defendant’s request to give curative instructions, thereby alleviating any prejudice to defendant (see, People v Wilson, 284 AD2d 958; People v Marzug, 280 AD2d 974, 975). Defendant failed to preserve for our review his contention that the court’s instruction on reasonable doubt was improper (see, People v Procks, 258 AD2d 951, 952, lv denied 93 NY2d 976). In any event, that contention lacks merit (see, People v Antommarchi, 80 NY2d 247, 252, rearg denied 81 NY2d 759). Defendant received effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Steuben County Court, Furfure, J. — Felony Driving While Intoxicated.) Present — Pigott, Jr., P. J., Green, Pine, Scudder and Lawton, JJ.

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Bluebook (online)

286 A.D.2d 898, 730 N.Y.S.2d 899, 2001 N.Y. App. Div. LEXIS 9114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-prescott-nyappdiv-2001.

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