Opinion
2019-69 Q CR
12-17-2021
The PEOPLE of the State of New York, Respondent, v. Fernando CATANO-LEZCANO, Appellant.
Appellate Advocates (Patricia Pazner and Patty C. Walton of counsel), for appellant. Queens County District Attorney (Johnnette Traill, Ellen C. Abbot, Jamaica and Eunice Villantoy of counsel), for respondent.
Appellate Advocates (Patricia Pazner and Patty C. Walton of counsel), for appellant.
Queens County District Attorney (Johnnette Traill, Ellen C. Abbot, Jamaica and Eunice Villantoy of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ.
ORDERED that the judgment of conviction, insofar as appealed from, is affirmed.
After a jury trial, defendant was convicted of driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2] ) and driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3] ). As limited by his brief, defendant only challenges his conviction of driving while intoxicated (common law). On appeal, defendant contends that the Criminal Court erred in admitting into evidence at trial a police officer's opinion testimony that defendant was intoxicated.
Defendant's contention is unpreserved for our review, as defendant failed to object to the testimony with specificity (see People v. Britt , 34 N.Y.3d 607, 616, 122 N.Y.S.3d 570, 145 N.E.3d 207 [2019] ; People v. Arroyo , 59 A.D.3d 634, 634, 872 N.Y.S.2d 674, 872 N.Y.S.2d 674 [2009] ). In any event, defendant's contention lacks merit. It is well established that opinion testimony regarding a defendant's state of intoxication is admissible from an expert witness and even from a lay witness (see People v. Cruz , 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979] ; People v. Beharry , 139 A.D.3d 869, 870, 29 N.Y.S.3d 825 [2016] ; People v. Bennett , 238 A.D.2d 898, 899, 660 N.Y.S.2d 772 [1997] ; People v. Brown , 44 Misc. 3d 129[A], 2014 N.Y. Slip Op. 50984[U], 2014 WL 2869770 [App. Term., 2d Dept., 2d, 11th & 13th Jud. Dists. 2014] ). Indeed, in the case of People v. Brown, 2014 N.Y. Slip Op. 50984[U], *2, wherein police officers offered opinion testimony as to defendant's intoxication, this court stated the following:
To the extent that defendant contends that defense counsel was ineffective for failing to raise a specific objection, we find that defendant's contention is without merit, as this alleged single error was not sufficiently egregious and prejudicial as to compromise defendant's right to a fair trial (see People v. Maffei , 35 N.Y.3d 264, 269, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ; People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ), and defense counsel's performance at trial, viewed in its totality, amounts to meaningful representation (see generally People v. Lopez-Mendoza , 33 N.Y.3d 565, 571, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019] ).
"As for the officers’ opinions of the degree of defendant's state of intoxication, it is well settled that such testimony is admissible even from a lay witness (e.g. People v. Cruz , 48 N.Y.2d 419, 429, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979] ; People v. Bennett , 238 A.D.2d 898, 899, 660 N.Y.S.2d 772 [1997] ) and, here, the officers testified to their police academy training as well as their professional and social experience with respect to the detection of persons under the influence of alcohol. This testimony provided an adequate foundation to qualify them to offer expert opinions as to defendant's state of intoxication."
Similarly, here, the police officer testified as to his training as well as his professional and social experience with respect to the detection of persons under the influence of alcohol. The officer's testimony provided an adequate foundation to qualify him to offer expert opinion as to defendant's state of intoxication (see People v. Brown , 2014 N.Y. Slip Op. 50984[U], *2.
Furthermore, the Criminal Court instructed the jury that they were free to accept or reject a witness's testimony and that it was their duty to determine the facts in this case (see People v. Bennett , 238 A.D.2d at 899, 660 N.Y.S.2d 772 ), and the jury is presumed to have followed the court's instructions (see People v. Stone , 29 N.Y.3d 166, 171, 55 N.Y.S.3d 730, 78 N.E.3d 175 [2017] ; People v. Baker , 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ). Even assuming that the testimony at issue should not have been admitted, any error in this regard was harmless, as there was overwhelming evidence of defendant's guilt and no significant probability that the error might have contributed to defendant's conviction (see People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Kennedy , 69 A.D.3d 881, 882, 895 N.Y.S.2d 436 [2010] ; People v. Arroyo , 59 A.D.3d at 635, 872 N.Y.S.2d 674 ).
Accordingly, the judgment of conviction, insofar as appealed from, is affirmed.
TOUSSAINT, J.P., and ELLIOT, J., concur.
WESTON, J., dissents and votes to reverse the judgment of conviction, insofar as appealed from, and to remit the matter to the Criminal Court for a new trial on the count of driving while intoxicated (common law) in the following memorandum:
I disagree with the majority's conclusion that the trial court providently exercised its discretion in allowing the People to elicit expert opinion testimony on the issue of intoxication. Whether defendant was intoxicated called for a factual finding, the resolution of which was exclusively within the province of the jury. By introducing expert testimony that defendant was intoxicated, the prosecution effectively removed that issue from the jury's consideration. In a case where there was already ample proof of defendant's intoxication, the officer's opinion testimony was unnecessary and its probative worth, if any, was outweighed by its prejudicial effect. Accordingly, I respectfully dissent and vote to reverse the judgment of conviction.
As an initial matter, I disagree with the majority that the error was not preserved, as defense counsel repeatedly objected at trial to the People's attempts to elicit expert opinion testimony. Even if a more specific objection were required, I would review the error in the interest of justice (see CPL 470.15 [3] [c] ).
Although the decision to admit expert testimony lies within the trial court's discretion, that discretion is informed by the jurors’ "day-to-day experience" and knowledge, and whether they "would benefit from the specialized knowledge of an expert witness" ( People v. LeGrand , 8 N.Y.3d 449, 455-456, 835 N.Y.S.2d 523, 867 N.E.2d 374 [2007] [internal quotation mark omitted]; see People v. Taylor , 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131 [1990] ). In exercising that discretion, a court must be mindful not to encroach on the jury's role as factfinder. Indeed, "[t]he jury may be aided, but not displaced, in the discharge of its fact-finding function by expert testimony where there is reason to suppose that such testimony will elucidate some material aspect of the case that would otherwise resist comprehension by jurors of ordinary training and intelligence" ( People v. Inoa , 25 N.Y.3d 466, 472, 13 N.Y.S.3d 329, 34 N.E.3d 839 [2015] ). This requirement applies equally to lay opinion testimony. Lay opinion testimony is only permissible when the facts of the case cannot be described in a way that would assist the jury in reaching an accurate judgment, "and no better evidence than such opinions is attainable" ( People v. Cronin , 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983] [internal quotation mark omitted]). Even if an issue calls for expert testimony, such testimony may still be inadmissible if its probative value is outweighed by the potential for undue prejudice (see People v. Rivers , 18 N.Y.3d 222, 228, 936 N.Y.S.2d 650, 960 N.E.2d 419 [2011] ). Weighing these factors, I conclude that the trial court abused its discretion in admitting the police officer's expert opinion testimony that defendant was intoxicated.
Instead of assisting the jury in its fact-finding function, the officer effectively usurped that function by lending his professional and personal expertise to opine on the ultimate issue in the case—whether defendant was intoxicated. Nothing in the resolution of this issue requires any technical or specialized expertise. To the contrary, it is well within the ken of the average juror to determine whether an individual is intoxicated or not. The jury in this case had before it overwhelming proof of intoxication, including the opining officer's own observations of defendant and the results of defendant's breath test, which the officer himself had administered. Given this evidence, the officer's expert opinion was patently unnecessary, and served only to bolster the arresting officer's testimony and give credence to the People's position that defendant was intoxicated. Having participated in the matter being tried, "with the mantle of an expert steeped in the particulars of the case," the officer gave "seemingly authoritative testimony directly instructive of what facts the jury should find" ( People v. Inoa , 25 N.Y.3d at 472, 13 N.Y.S.3d 329, 34 N.E.3d 839 ). On this record, the probative value in admitting the officer's expert opinion testimony was far outweighed by its prejudicial impact, and the court's subsequent general instructions to the jury did not alleviate that prejudice (see People v. Stanard , 32 N.Y.2d 143, 148, 344 N.Y.S.2d 331, 297 N.E.2d 77 [1973] ). Accordingly, the testimony should have been excluded.
This court's decision in People v. Brown, 44 Misc. 3d 129[A], 2014 N.Y. Slip Op. 50984[U], 2014 WL 2869770 [App. Term., 2d Dept., 2d, 11th & 13th Jud. Dists. 2014] does not warrant a contrary result. There, this court concluded that the trial court properly permitted the officers to testify as to the "degree" of defendant's state of intoxication ( id. at *2 ). In so concluding, this court relied on dicta in People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 (1979), which simply stated that "intoxication does not require an expert opinion," and that a lay person is competent to make that determination ( id. at 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 ). I see nothing in People v. Cruz that sanctions expert opinions on issues that are within the purview of the average juror and that do not enable the jury to form an accurate judgment. Indeed, the Court of Appeals in Cruz made clear that "[i]ntoxication is not an unfamiliar concept. It is intelligible to the average person" ( id. at 427, 423 N.Y.S.2d 625, 399 N.E.2d 513 ). As such, I decline to follow this court's decision in People v. Brown as dispositive authority on the issue now before us.
Although I agree with the majority that the proof in this case was overwhelming, I conclude that, notwithstanding this proof, the error so deeply infected the verdict that it was not harmless (see People v. Mairena , 34 N.Y.3d 473, 485, 121 N.Y.S.3d 731, 144 N.E.3d 340 [2019] ). The ultimate issue in this case was whether defendant was intoxicated. By proffering both his personal and professional expertise on an issue central to the People's case, the officer created an aura of authority that likely influenced the jury to credit that expertise as conclusive proof of defendant's guilt. In these circumstances, I cannot agree with the majority that there was no significant probability that the jury would have acquitted defendant but for the error (see id. ). Accordingly, I vote to reverse the judgment of conviction, insofar as appealed from, and to remit the matter to the Criminal Court for a new trial on the count of common law driving while intoxicated.