SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 31, 2008
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
BRETT A. MCGRAW, DEFENDANT-APPELLANT.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered May 25, 2007. The judgment convicted defendant, after a non-jury trial, of felony driving while intoxicated, reckless driving, and three traffic infractions.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
On appeal from a judgment convicting him upon a non-jury verdict of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law § 1192 ; § 1193  [c] [former (i)]), defendant contends that the evidence is legally insufficient to establish that he was intoxicated. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495). Viewing the evidence in the light most favorable to the People, as we must (see People v Contes, 60 NY2d 620, 621), we conclude that the testimony of the Sheriff's deputies concerning defendant's reckless driving, physical condition, and inability to complete field sobriety tests, together with the inference that the refusal by defendant to take a chemical test demonstrated consciousness of guilt (see People v Schuh, 4 AD3d 751, 752, lv denied 2 NY3d 806), is legally sufficient to establish that defendant operated his vehicle while intoxicated (see People v Shank, 26 AD3d 812, 813-814). We further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
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