Press-Republican

March 3, 2013

DWI conviction upheld

By DENISE A. RAYMO
Press-Republican

---- — SARANAC LAKE — A Saranac Lake man convicted in Franklin County Court of driving without a license and drunken driving lost his appeal.

Peter F. Kulk, 38, of 11 Woodruff St., was sentenced to two to six years in state prison for driving while intoxicated and a concurrent 1½-to four-year term for first-degree aggravated unlicensed operation of a motor vehicle for an incident Aug. 21, 2010.

On appeal, he challenged County Court Judge Robert G. Main Jr.’s decision to allow statements he gave police into evidence and said a video taken by a patrol car’s dashboard camera was not turned over to the defense until after he was convicted and an appeal was in progress.

Kulk also claimed the alco-sensor used to test his sobriety gave two different readings, and an improper foundation was laid for its results to be presented in court.

He said the jury also should have been given a less severe penalty option to consider when weighing the unlicensed-driving charge during deliberations.

‘ADMITTED HE DRANK’

But the judges of the Third Judicial Department of the Appellate Division of State Supreme Court disagreed on all points.

Saranac Lake Village Police Officer Leigh Wenske saw Kulk behind the wheel, knew he didn’t have a license and pulled him over. Wenske and Officer Jason Swain told Kulk he smelled of alcohol, and they asked how much he had to drink.

“Defendant stated, among other things, that he had consumed two alcoholic beverages, ‘had been drinking pretty hard’ the night before, knew he was over the limit and expected to go to prison as a result,” the ruling states. “Defendant also told the officers to ‘place handcuffs on him and take him in.’”

The judges said Miranda warnings against self-incrimination didn’t apply because the officers asked the number of drinks he had and were not interrogating him.

A second video of his arrest captured by a camera in Swain’s later-arriving patrol car was later found and turned over to the attorney handling Kulk’s appeal, Mark Schneider of Plattsburgh.

But the judges said they could not address that issue because the tape wasn’t in evidence in the original case before them.

NO EVIDENCE

Once at the police station, Kulk submitted to the alco-sensor, which pegged his blood-alcohol content at 0.10 percent, or 0.02 percent above the legal limit.

The judges rejected Kulk’s contention that a preliminary alco-sensor reading of 0.06 percent should have been allowed into evidence, saying Kulk showed no evidence the machine was faulty.

He was indicted by a grand jury on two counts of DWI and one of unlicensed operation and convicted of one DWI and for driving with no license.

He was sent to prison and ordered to pay a $2,500 fine and to serve three years of post-release supervision that is subject to conditional discharge.

Kulk is serving his sentence at Hudson Correctional Facility in Columbia County and is eligible for parole in April 2014.

Email Denise A. Raymo:

draymo@pressrepublican.com