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People v. Cooley

State of New York Supreme Court, Appellate Division Third Judicial Department


January 14, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CAROL COOLEY, APPELLANT.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: November 19, 2009

Before: Peters, J.P., Rose, Malone Jr., Stein and McCarthy, JJ.

Appeal from a judgment of the County Court of Fulton County (Rogers, J.), rendered June 17, 2008, upon a verdict convicting defendant of the crime of driving while intoxicated (two counts) and the traffic violation of improper display of a license plate.

Defendant's sole contention on appeal from her conviction of two counts of felony driving while intoxicated and a traffic violation is that County Court was required, but failed, to give the jury a circumstantial evidence instruction. This issue is not preserved for our review, however, because the defense neither requested such a charge nor objected to its omission from the jury instructions (see People v Ryan, 46 AD3d 1125, 1127-1128 [2007], lv denied 10 NY3d 939 [2008]; People v Stanton, 21 AD3d 576, 577 [2005]; People v Wallace, 8 AD3d 753, 756 [2004], lv denied 3 NY3d 682 [2004]; see also CPL 470.05 [2]). Even if we were to consider it, the testimony that defendant had admitted that she was going too fast around a corner before her vehicle left the road and rolled over constituted direct evidence of her operation of the vehicle (see People v Casper, 42 AD3d 887, 888 [2007], lv denied 9 NY3d 990 [2007]). In any event, a circumstantial evidence charge must be given only where all the evidence presented as to every element of the criminal charge is circumstantial, and here there was direct evidence of the element of intoxication (see People v Daddona, 81 NY2d 990, 992 [1993]; People v Allen, 1 AD3d 947, 948 [2003], lv denied 1 NY3d 594 [2004]; People v Struss, 228 AD2d 711, 714 [1996], lv denied 89 NY2d 867 [1996]).

Peters, J.P., Malone Jr., Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

20100114

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