SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

103 

KA 13-01184 

PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

THOMAS J. TORRES, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Genesee County Court (Robert C.

Noonan, J.), rendered August 7, 2012. The judgment convicted

defendant, upon a jury verdict, of driving while intoxicated, a class

D felony, and aggravated driving while intoxicated, per se, a class D

felony. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of driving while intoxicated, a class D felony (Vehicle and

Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]), and aggravated driving

while intoxicated, per se, a class D felony (§§ 1192 [2-a] [a]; 1193

[1] [c] [ii]), defendant contends that the verdict is contrary to the

weight of the evidence with respect to the issues of intoxication, the

breathalyzer test results, and the defense of justification. Inasmuch

as defendant admitted during his trial testimony that he was

intoxicated when he operated the vehicle, we reject his contention

that the jury improperly weighed the evidence of intoxication. 

Defendant’s contention with respect to the breathalyzer test results

is without merit (see § 1194 [4] [c]; People v Kulk, 103 AD3d 1038,

1041, lv denied 22 NY3d 956; see generally People v Boscic, 15 NY3d

494, 498-500). Consequently, the only remaining issue with respect to

the weight of the evidence is defendant’s contention that the jury did

not properly weigh the evidence with respect to the defense of

justification based on an emergency, also known as the “choice of

evils” defense (see e.g. People v Craig, 78 NY2d 616, 620 n 1). 

Viewing the evidence in light of the elements of the crimes as charged

to the jury (see People v Danielson, 9 NY3d 342, 349), we reject

defendant’s contention that, under the circumstances of this case, the

jury failed to give the evidence the weight it should be accorded in

considering that defense (see generally People v Bleakley, 69 NY2d
-2- 103 

KA 13-01184 

490, 495). 

The defense applies where, inter alia, the defendant’s conduct

“is necessary as an emergency measure to avoid an imminent public or

private injury which is about to occur” (Penal Law § 35.05 [2]). 

“[T]he requirement that the impending injury must be ‘imminent’ and

‘about to occur’ denotes an impending harm which constitutes a

present, immediate threat—i.e., a danger that is actual and at hand,

not one that is speculative, abstract or remote” (Craig, 78 NY2d at

624). “It was for the jury to determine whether the threat of harm

that the defendant perceived had ceased to exist and if so whether

defendant had sufficient time to react prior to” engaging in the

illegal conduct (People v Maher, 79 NY2d 978, 982). Even assuming,

arguendo, that defendant was initially justified within the meaning of

Penal Law § 35.05 (2) in driving while intoxicated to escape an

imminent threat of physical injury, we cannot conclude that the jury

improperly weighed the evidence in determining that defendant was not

justified in continuing to operate the vehicle for several miles, with

no evidence that he was being pursued.

We reject defendant’s contention that County Court erred in

denying his motion to suppress all evidence arising from the allegedly

improper stop of his vehicle. “The police had reasonable suspicion to

stop defendant[’s] vehicle based on the contents of a 911 call from

[three identified citizens] and the confirmatory observations of the

police. [Inasmuch as the evidence in the record establishes that the

information provided by those citizens] was reliable under the

totality of the circumstances, satisfied the two-pronged

Aguilar–Spinelli test for the reliability of hearsay tips in this

particular context and contained sufficient information about

defendant[’s] unlawful possession of a weapon to create reasonable

suspicion, the lawfulness of the stop of defendant[’s] vehicle is”

established (People v Argyris, ___ NY3d ___, ___ [Nov. 25, 2014]).

We also reject defendant’s contention that he was denied

effective assistance of counsel. It is well settled that, “[t]o

prevail on a claim of ineffective assistance of counsel, it is

incumbent on defendant to demonstrate the absence of strategic or

other legitimate explanations” for defense counsel’s allegedly

deficient conduct (People v Rivera, 71 NY2d 705, 709; see People v

Benevento, 91 NY2d 708, 712), and defendant failed to meet that

burden. Viewing the evidence, the law and the circumstances of this

case, in totality and as of the time of the representation, we

conclude that defendant received meaningful representation (see

generally People v Baldi, 54 NY2d 137, 147).

Defendant further contends that the court committed reversible

error by failing to provide a meaningful response to a jury note

asking for the legal definition of an adjournment in contemplation of

dismissal. We reject the People’s assertion that defendant’s

contention is not preserved for our review, inasmuch as the record

establishes that “the court ‘was aware of, and expressly decided, the

[issue] raised on appeal’ ” (People v Collins, 106 AD3d 1544, 1546, lv

denied 21 NY3d 1072, quoting People v Hawkins, 11 NY3d 484, 493). We
-3- 103 

KA 13-01184 

conclude, however, that defendant’s contention is without merit. The

court appropriately answered the jury’s question by explaining that

there was no evidence in the record concerning such a disposition (see

generally People v Esquilin, 236 AD2d 245, 246-247, affd 91 NY2d 902;

People v Davis, 223 AD2d 376, 377, lv denied 88 NY2d 846). Thus,

“whatever questions are raised as to the phrasing of the court’s

response to the jury’s questions, the court’s answer provided the

requisite ‘meaningful response’ ” (People v Simmons, 66 AD3d 292, 295,

affd 15 NY3d 728). 

Defendant further contends that he was deprived of a fair trial

by various instances of prosecutorial misconduct. Although defendant

contends that the prosecutor engaged in misconduct by introducing

evidence of defendant’s invocation of his right to remain silent, we

note that the prosecutor in fact did not introduce such evidence;

rather, the testimony elicited by the prosecutor established that

defendant merely responded to a question about his rights by stating

that he would speak to the officers when he considered it appropriate

to do so. “By refusing to respond to certain questions but while

continuing to respond to others, defendant [did not] invoke his right

to remain silent” (People v Gibbs, 286 AD2d 865, 867, lv denied 97

NY2d 704; see People v Flowers, 122 AD3d 1396, 1396-1397; People v

Jandreau, 277 AD2d 998, 998, lv denied 96 NY2d 784) and, “thus, the

prosecutor did not err in eliciting testimony on that issue” (Gibbs,

286 AD2d at 867). 

Defendant failed to object to the majority of the remaining

instances of alleged prosecutorial misconduct that he raises on

appeal, and thus failed to preserve his contention for our review with

respect to those instances (see People v Ward, 107 AD3d 1605, 1606, lv

denied 21 NY3d 1078). In any event, with respect to the remaining

alleged instances of misconduct, both preserved and unpreserved, we

conclude that “[a]ny improprieties were not so pervasive or egregious

as to deprive defendant of a fair trial” (People v Jones, 114 AD3d

1239, 1241, lv denied 23 NY3d 1038, 1039 [internal quotation marks

omitted]; see People v Smith, 109 AD3d 1150, 1151-1152, lv denied 22

NY3d 1090). 

The sentence is not unduly harsh or severe. We have considered

defendant’s remaining contention and conclude that it is without

merit.

Entered: February 13, 2015 Frances E. Cafarell

Clerk of the Court