Opinion
KA 01-01090
November 15, 2002.
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.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
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; § 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), 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 A.D.2d 994; People v. McNeil, 132 A.D.2d 986, lv denied 70 N.Y.2d 801). Contrary to defendant's contentions, the evidence is legally sufficient to support the conviction of driving while intoxicated ( see People v. Everts, 292 A.D.2d 820; People v. Thomas, 280 A.D.2d 998; People v. Lee, 275 A.D.2d 995, 996, lv denied 95 N.Y.2d 966; People v. Saplin, 122 A.D.2d 498, 498-499, lv denied 68 N.Y.2d 817) and failure to keep right ( see People v. Gabriel, 248 A.D.2d 741, 742, lv denied 91 N.Y.2d 941; People v. Hagmann, 175 A.D.2d 502, 505; see generally People v. Bleakley, 69 N.Y.2d 490, 495). Nor was defendant deprived of effective assistance of counsel ( see generally People v. Henry, 95 N.Y.2d 563, 565-566; People v. Benevento, 91 N.Y.2d 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 A.D.2d 814, 815, lv denied 98 N.Y.2d 677, citing People v. Pena, 50 N.Y.2d 400, 411-412, rearg denied 51 N.Y.2d 770, cert denied 449 U.S. 1087; People v. Hardy, 269 A.D.2d 771, lv denied 95 N.Y.2d 835), nor is it unduly harsh or severe.