Those on probation in New York must watch their conduct carefully. In a recent case, the New York Supreme Court upheld a decision to re-sentence a man who was convicted of DWI while on probation for a previous conviction. This case serves as a cautionary tale to those on probation. If you are convicted of another crime, courts may re-sentence to a much harsher penalty.
The case involved a man who was convicted for driving under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree. His conviction resulted in a sentence of 28-84 months of imprisonment. At the time of his conviction, the defendant was on probation for a prior conviction. As a result, a judge revoked his probation and sentenced the defendant to an additional 16-60 months of confinement. The defendant appealed the sufficiency of the evidence in his DUI conviction and the decision to revoke and modify his probationary sentence.
With regard to both of the defendant’s claims, the court refused to review the defendant’s arguments because the defendant had not properly preserved them at trial. In a criminal case, arguments raised on appeal must be properly preserved at trial and through the post-trial process. If issues are not raised, they are waived and cannot be raised for the first time on appeal.
Without considering the defendant’s arguments, the court took a look at the evidence in the defendant’s case, finding that it was sufficient for a conviction. Evidence is insufficient if the decision of the fact-finder at trial makes a decision that goes against the weight of the evidence. In deciding that the evidence was sufficient to convict the defendant, the court gave considerable weight to the defendant’s behavior. At the time of the incident, the defendant “drove the wrong way on a one-way street, had watery and bloodshot eyes, smelled of alcohol… was unsteady on his feet… and slurred his speech.” The court also noted that his refusal to take a breathalyzer was admissible evidence of his guilt.
Not only did the court consider the defendant’s behavior on the night of the incident, but it also considered his refusal to cooperate with the court processes at trial. The court said it was proper for the defendant’s prior DWI convictions to be presented to the jury because he refused to admit to them outside the jury’s presence. Furthermore, the defendant’s credibility was damaged at trial by the fact that his medical excuse for refusing a breathalyzer had not been brought up in his previous DUI cases. Based on all of these facts, the court held that the evidence was sufficient to convict the defendant.
With regard to the defendant’s re-sentencing for his previous case, the court also held that it was proper. Under New York CPL 410.70, a court may revoke a sentence of probation and impose a new sentence if (a) the court finds the defendant violated a condition of the sentence and (b) the defendant had an opportunity to be heard. In this case, the court ruled that the judge followed this rule properly in re-sentencing the defendant.
If You Have Been Charged With a Crime in New York, Having an Experienced Attorney Makes a Difference
If you are facing serious criminal charges, having an experienced criminal defense attorney is critical. The attorneys at Tilem & Associates, PC have the knowledge and skills to protect your rights. Our attorneys will zealously advocate on your behalf to make sure your interests are protected. We handle all types of cases, including New York DWI offenses. Schedule a free consultation with one of our attorneys today by calling 877-377-8666.