Appeal from a judgment of the District Court of Suffolk County, First District (Steven A. Lotto, J.), rendered August 22, 2007. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated.

Judgment of conviction affirmed.

Following a jury trial, defendant was convicted of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). On appeal, defendant contends that he received the ineffective assistance of counsel in that his defense counsel antagonized the trial court, thereby depriving him of a fair trial. A review of the record indicates that the complained of actions by the trial court were provoked by defense counsel's continuous arguments with, and interruption of, the court. Where a defense counsel engages in tactics which are "designed to disrupt and to infuriate . . . defendant may not, absent other circumstances, successfully allege he was deprived of a fair trial" (People v Gonzalez, 38 NY2d 208, 210 [1975]; see also People v Jenkins, 25 AD3d 444 [2006]). In such a situation, "[t]he trial court was justified, indeed obligated, to assume aggressive control of the proceedings to ensure a fair trial" (Gonzalez, 38 NY2d at 210). Moreover, many of the comments by the trial court herein, to which defendant now objects, were made outside the hearing of the jury (see People v Wager, 19 AD3d 263 [2005]; People v Dushain, 8 AD3d 137 [2004]), and the "court's comments were restrained and judicious in response to what appeared to be deliberate baiting by counsel" (Jenkins, 25 AD3d at 445). Consequently, we find that, as a whole, the process was fair (see People v Benevento, 91 NY2d 708, 714 [1998]), defendant was not deprived of a fair trial and received the effective assistance of counsel (id. at 713-714).

Defendant also contends that the trial court committed reversible error when it allowed testimony regarding his refusal to submit to a chemical test since, inter alia, there was no [*2]evidence that his refusal was persistent. We disagree. There was ample evidence that defendant was provided with a clear and unequivocal warning of the effect of his refusal to submit to a chemical test, and his statement that he refused to take the test, along with his writing the word "refuse" on the Alcohol/Drug Influence Report, demonstrated that he "persisted" in his refusal within the ambit of Vehicle and Traffic Law § 1194 (2) (f) (see Matter of Geary v Commissioner of Motor Vehicles of State of N.Y., 92 AD2d 38, 41 [1983]; People v Ashley, 15 Misc 3d 80 [App Term, 9th & 10th Jud Dists 2007]; People v Strachan, NYLJ, Mar. 18, 1994 [App Term, 2d & 11th Jud Dists]).

Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d 633 [2006]; People v Bleakley, 69 NY2d 490 [1987]). Defendant's remaining contentions lack merit or are unpreserved for appellate review (see CPL 470.05 [2]).

Accordingly, the judgment of conviction is affirmed.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 18, 2009