People v. Thompson

299 A.D.2d 889, 749 N.Y.S.2d 756, 2002 N.Y. App. Div. LEXIS 10912

Opinion

Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered April 23, 2001, convicting defendant after a jury trial of, inter alia, felony driving while intoxicated.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him of driving while intoxicated as a D felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and failure to keep right (§ 1120 [a]), defendant contends that the arresting officer conducted an unreasonable search and seizure. That contention is not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see 470.15 [6] [a]). By failing to raise that contention before the suppression court, defendant effectively deprived the People of an opportunity to present proof with respect to it (see People v Curtis, 186 AD2d 994; People v McNeil, 132 AD2d 986, lv denied 70 NY2d 801). Contrary to defendant’s contentions, the evidence is legally sufficient to support the conviction of driving while intoxicated (see People v Everts, 292 AD2d 820; People v Thomas, 280 AD2d 998; People v Lee, 275 AD2d 995, 996, lv denied 95 NY2d 966; People v Saplin, 122 AD2d 498, 498-499, lv denied 68 NY2d 817) and failure to keep right (see People v Gabriel, 248 AD2d 741, 742, lv denied 91 NY2d 941; People v Hagmann, 175 AD2d 502, 505; see generally People v Bleakley, 69 NY2d 490, 495). Nor was defendant deprived of effective assistance of counsel (see generally People v Henry, 95 NY2d 563, 565-566; People v Benevento, 91 NY2d 708, 712-713). Contrary to the further contentions of defendant, the sentence imposed by County Court was not the product of vindictiveness (see People v Lewis, 292 AD2d 814, 815, lv denied 98 NY2d 677, citing People v Pena, 50 NY2d 400, 411-412, rearg denied 51 NY2d 770, cert denied 449 US 1087; People v Hardy, 269 AD2d 771, lv denied 95 NY2d 835), nor is it unduly harsh or severe. Present— Pigott, Jr., P.J., Pine, Wisner, Scudder and Kehoe, JJ.