People v. Silvestri, 34 A.D.3d 986 (N.Y. App. Div. 2006). · Go Syfert
People v. Silvestri, 34 A.D.3d 986 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
13 citation events (13 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Olson (nyappdiv, 2015-03-12)
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Olson
N.Y. App. Div. · 2015 · confidence medium
To the extent that defendant now challenges the trooper’s training, experience and actual administration of the HGN test and/or points to certain claimed inconsistencies in the trooper’s testimony, suffice it to say that these issues were thoroughly vetted during the course of defense counsel’s extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri, 34 AD3d 986, 987 [2006]).
discussed Cited as authority (rule) People v. Davis
N.Y. App. Div. · 2011 · confidence medium
The inconsistencies did not rise to the level of making Lewis’s testimony incredible as a matter of law (see People v Toland, 2 AD3d 1053, 1055 [2003], lv denied 2 NY3d 808 [2004]), they were explored in cross-examination, and the inconsistencies created a credibility issue for the jury (see People v Silvestri, 34 AD3d 986, 987 [2006]; People v Wilt, 18 AD3d 971, 972 [2005], lv denied 5 NY3d 771 [2005]).
discussed Cited as authority (rule) People v. Fairley
N.Y. App. Div. · 2009 · confidence medium
This isolated remark, when viewed in the context of the prosecutor’s entire opening statement, did not exceed the bounds of permissible commentary (see People v Galloway, 54 NY2d 396, 399 [1981]; People v Silvestri, 34 AD3d 986, 987 [2006]).
discussed Cited as authority (rule) People v. Mitchell
N.Y. App. Div. · 2008 · confidence medium
While these statements would have been better left unsaid, they did not, given the full context of the prosecutor’s closing arguments, go “beyond the bounds of fair commentary” (People v Silvestri, 34 AD3d 986, 987 [2006]; see People v Westervelt, 47 AD3d 969, 974 [2008], lv denied 10 NY3d 818 [2008]), and did not serve to deprive defendant of a fair trial (see People v Clark, 52 AD3d 860, 863 [2008]; People v Anderson, 48 AD 3d 896, 897 [2008], lv denied 10 NY3d 859 [2008]).
discussed Cited as authority (rule) People v. Clark
N.Y. App. Div. · 2008 · confidence medium
Although defense counsel did object during the prosecutor’s opening statement, when viewed in the context of the entire opening statement, the comments at issue did not constitute an improper “safe streets” argument (see People v Silvestri, 34 AD3d 986, 987 [2006]).
discussed Cited as authority (rule) People v. Westervelt
N.Y. App. Div. · 2008 · confidence medium
The remaining comments about which defendant complains were not preserved by a timely objection (see People v Silvestri, 34 AD3d 986, 987 [2006]; People v Studstill, 27 AD3d 833, 835 [2006], lv denied 6 NY3d 898 [2006]).
discussed Cited as authority (rule) People v. Owens
N.Y. App. Div. · 2007 · confidence medium
When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and will not disturb the verdict if the evidence demonstrates a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the trier of fact (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Silvestri, 34 AD3d 986, 987 [2006]).
discussed Cited as authority (rule) People v. Jackson
N.Y. App. Div. · 2007 · confidence medium
First, with respect to the conviction for criminal trespass in the second degree, we note that defendant’s motion at the conclusion of the People’s case did not address the legal sufficiency of the evidence with respect to this crime, rendering this issue unpreserved for appellate review (see People v Gray, 86 NY2d 10, 19 [1995]; People v Cole, 35 AD3d 911, 912 [2006]; People v Silvestri, 34 AD3d 986, 986-987 [2006]; People v Riddick, 34 AD3d 923, 924-925 [2006]).
discussed Cited as authority (rule) People v. Alvarez
N.Y. App. Div. · 2007 · confidence medium
Finally, defendant failed to preserve his argument challenging the legal sufficiency of the evidence regarding the two assault counts based on him striking the victim in the head, as he did not specifically address these counts in his motion to dismiss (see People v Silvestri, 34 AD3d 986, 986-987 [2006]; People v Riddick, 34 AD3d 923, 924-925 [2006]).
discussed Cited "see" People v. Carota
N.Y. App. Div. · 2012 · signal: see · confidence high
Any inconsistencies in relation to Habshi’s testimony were minor and “ ‘were thoroughly aired during cross-examination’ ” (People v Hamm, 29 AD3d at 1080 , quoting People v Howard, 299 AD2d 647, 648 [2002], lv denied 99 NY2d 629 [2003]; see People v Silvestri, 34 AD3d 986, 987 [2006]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Frank A. Silvestri
Appellate Division of the Supreme Court of the State of New York.
Nov 16, 2006.
34 A.D.3d 986
Mugglin.
Cited by 12 opinions  |  Published
Mugglin, J.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered August 1, 2005, upon a verdict convicting defendant of the crime of driving while intoxicated.

Broome County Deputy Sheriff Matthew Cower observed defendant, who was riding a motorcycle, make a left-hand turn against a red light. As Cower followed defendant, he observed the motorcycle weave from lane to lane without signaling and exceed the posted speed limit. Cower attempted to stop defendant by activating the police vehicle emergency lights, but defendant did not stop until forced to make a sudden turn to avoid a car immediately in front of him. Based upon the observations of defendant’s operation of his motorcycle, the detection of an odor of alcohol on his breath, his admission that he had consumed alcoholic beverages, and his bloodshot eyes, slurred speech and failure of certain field sobriety tests, defendant was arrested for driving while intoxicated. On arrival at the County Sheriff’s department, defendant was given the appropriate warnings and refused to submit to a breathalyzer test. A jury convicted defendant of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) as a felony and his sentence consisted of four months in jail, to be served on weekends, five years of probation and revocation of his driver’s license. Defendant appeals and we affirm.

Defendant first contends that his conviction was not supported by legally sufficient evidence and was against the weight of the evidence. As an initial matter, defendant failed to preserve any challenge to the legal sufficiency of the evidence by failing[*987] to move to dismiss the charge and argue with specificity the claimed defect (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, were we to reach the issue, we would conclude that the conviction is supported by legally sufficient evidence as, viewed in the light most favorable to the People, the evidence demonstrates a valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury (see People v Bleakley, 69 NY2d 490, 495 [1987]). Here, observations regarding defendant’s operation of his motorcycle, the physical manifestations of intoxication observed by three police officers, defendant’s admission of his consumption of alcoholic beverages and his refusal to submit to the breathalyzer test constitute sufficient evidence to satisfy the proof and burden requirements for every element of the crime charged (see People v Hamm, 29 AD3d 1079, 1080 [2006]). Although the arresting officer’s testimony concerning the method of performing the horizontal gaze nystagmus test was inconsistent, this issue was thoroughly explored on cross-examination (id.). Further, viewing the evidence in a neutral light, we do not conclude that the verdict is against the weight of the evidence (see People v Bleakley, supra at 495; People v Hamm, supra at 1080).

Next, we find no merit to defendant’s contentions that he was denied a fair trial as a result of the prosecutor’s “safe streets” summation and his attempt to shift the burden of proof to defendant. First, when viewed in the context of the prosecutor’s entire closing argument, any comments made concerning “safe streets” did not go beyond the bounds of fair commentary (see People v Ryan, 240 AD2d 775, 777 [1997], lv denied 90 NY2d 910 [1997]). Second, any reference in the prosecutor’s summation to the failure of defendant to submit to the breathalyzer examination was not preserved by objection (see id. at 777). Were we to reach this issue, we would conclude that any error was harmless in light of the overwhelming evidence of defendant’s guilt (see People v Beyer, 21 AD3d 592, 594 [2005], lv denied 6 NY3d 752 [2005]).

Mercure, J.P, Crew III, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed.