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Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Donhauser

The People of the State of New York, Respondent,

v.

Howard L. Donhauser, Jr., Appellant.

Supreme Court, Appellate Division, Fourth Department, New York

(November 13, 1998)

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated (DWI) as a felony (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]). In February 1996 defendant was sentenced as a persistent felony offender to an indeterminate term of incarceration of 15 years to life.

The verdict is not against the weight of the evidence. The testimony of a Deputy Sheriff concerning his observations of defendant and the admission of defendant that he had been drinking were sufficient to establish defendant's intoxication (see, People v Bowers, 201 AD2d 830, lv denied 83 NY2d 909). *934 We cannot conclude that the jury failed to give the evidence the weight it should be accorded (see, People v Bleakley, 69 NY2d 490, 495). The prosecutor's conduct was not so egregious as to deny defendant a fair trial (see, People v Broadus, 129 AD2d 997, lv denied 70 NY2d 643).

Prior to trial, defendant entered into a stipulation pursuant to CPL 200.60 (see generally, People v Cooper, 78 NY2d 476, 482-483), admitting a prior DWI conviction and also admitting that, at the time of his arrest, he knew that his license was revoked as the result of a prior conviction or refusal to submit to a breathalyzer test. The record establishes that defendant voluntarily entered into the stipulation "as part of a strategy to keep the jury from learning of his prior DWI conviction and that his license was suspended or revoked at the time of his arrest" (People v Tatro, 245 AD2d 1040). Thus, defendant thereby waived his present contention that County Court failed to comply with CPL 320.10 (2) in not submitting count two to the jury (see, People v Tatro, supra; see also, People v Flanagan, 247 AD2d 899, lv denied 91 NY2d 972).

As a matter of discretion in the interest of justice, we modify the judgment by vacating the finding that defendant is a persistent felony offender and reducing the sentence to an indeterminate term of incarceration of 1 1/3 to 4 years (see, CPL 470.20 [6]). We note that, had defendant's offense been committed after October 31, 1996, it could have been punishable as a class D felony (see, Vehicle and Traffic Law ' 1193 [1] [c] [ii], added by L 1996, ch 652). (Appeal from Judgment of Ontario County Court, Henry, Jr., J.--Felony Driving While Intoxicated.)

Present--Pine, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ. [As amended by unpublished order entered Dec. 31, 1998.]

Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York.

N.Y.A.D.,1998.

People v Donhauser (Howard)

END OF DOCUMENT

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