Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Third DepartmentSep 14, 1995
219 A.D.2d 759 (N.Y. App. Div. 1995)
219 A.D.2d 759631 N.Y.S.2d 449

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September 14, 1995

Appeal from the County Court of Tompkins County (Sherman, J.).

At approximately 11:30 P.M. on September 4, 1992, and after a three-mile chase, defendant was stopped for speeding by State Trooper Thomas Huttleston. When defendant was asked to produce his driver's license, he said he did not have one. In response to a follow-up "why?", defendant stated that he did not have one because it was revoked. After failing field sobriety tests, defendant was arrested for driving while intoxicated. Defendant was indicted for aggravated unlicensed operation of a motor vehicle in the first degree and driving while intoxicated as a felony. After trial, defendant was convicted of the aggravated unlicensed operation count. However, the jury was unable to reach a verdict on the second count which included the lesser included charge of driving while ability impaired. The nature of the deadlock remained unexplored and the jury was discharged without objection. Thereafter, the second count was dismissed pursuant to CPL 310.70 (2) (b). Defendant appeals.

Defendant contends that the introduction into evidence of the Department of Motor Vehicles abstract of his driving record without a proper certification pursuant to CPLR 4518 (c) ( see, People v Mertz, 68 N.Y.2d 136) must result in a reversal, as the remainder of the People's proof failed to prove that defendant was aware of his license revocation. We disagree. By means of a certificate of conviction and an order of license revocation introduced without opposition, the People established that defendant's driver's license had been revoked as the result of a conviction for driving while intoxicated and that, at that time, defendant was aware of the revocation. Huttleston's testimony firmly established defendant's awareness of the revoked status of his license at the time of the traffic stop. Moreover, defendant admitted that his license had been revoked and that he had failed to procure a reissuance of the license. Any error with the introduction of the abstract was harmless ( see, People v Tinning, 142 A.D.2d 402, lv denied 73 N.Y.2d 1022).

Defendant's contention that the verdict was repugnant was not preserved at trial and, therefore, may not be considered on appeal ( see, People v Alfaro, 66 N.Y.2d 985, 987). Any claim that the verdict is repugnant must be made before the jury is discharged and while it is still possible to resubmit the matter to the jury to obtain a consistent verdict ( see, People v Satloff, 56 N.Y.2d 745; People v Stahl, 53 N.Y.2d 1048, 1050). While the nature of the jury's deadlock remained unexplored, our review of the record in the interest of justice reveal no inherent repugnancy. There was no verdict on the second count, where a guilty verdict on either the count itself, or its lesser included count, would have been consistent with the guilty verdict on the first count.

Cardona, P.J., Mercure, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Tompkins County for further proceedings pursuant to CPL 460.50 (5).