SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
June 5, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DAVID L. CHEAL, DEFENDANT-APPELLANT.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered August 10, 2007. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated, a class E felony, aggravated unlicensed operation of a motor vehicle in the first degree and reckless driving.
PRESENT: SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, AND CENTRA, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
On appeal from a judgment convicting him upon a jury verdict of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law § 1192 ; § 1193  [c] [former (i)]), defendant contends that County Court erred in allowing a police officer to testify with respect to the way in which his observation of nystagmus in defendant's right eye affected his opinion concerning defendant's intoxication. That contention is not preserved for our review (see generally People v Hall, 53 AD3d 1080, 1082, lv denied 11 NY3d 855), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15  [a]). The sentence is not unduly harsh or severe.
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