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The People of the State of New York v. Gregory Lloyd

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 15, 2010

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
GREGORY LLOYD,
APPELLANT.

Appeal from judgments of the District Court of Nassau County, First District (Erica Prager, J.), rendered June 16, 2008.

People v. Lloyd (Gregory)

Decided on December 15, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The judgments convicted defendant, upon jury verdicts, of driving while ability impaired, driving on the shoulder, moving from a lane unsafely, driving a motor vehicle without two lighted front head lamps and driving a motor vehicle without two lighted rear lamps.

ORDERED that the judgments convicting defendant of driving while ability impaired, driving on the shoulder, driving a motor vehicle without two lighted front head lamps and driving a motor vehicle without two lighted rear lamps are affirmed.

ORDERED that the judgment convicting defendant of moving from a lane unsafely is reversed, on the law, the accusatory instrument is dismissed and the fine, if paid, is remitted.

Defendant was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving on the shoulder (Vehicle and Traffic Law § 1131), moving from a lane unsafely (Vehicle and Traffic Law § 1128 [a]), driving a motor vehicle without two lighted front head lamps (Vehicle and Traffic Law § 375 [2] [a] [1]), driving a motor vehicle without two lighted rear lamps (Vehicle and Traffic Law § 375 [2] [a] [3]), and operating an uninspected motor vehicle (Vehicle and Traffic Law § 306 [b]). Following a jury trial, defendant was convicted of the lesser included charge of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), as well as of driving on the shoulder, moving from a lane unsafely, driving a motor vehicle without two lighted front head lamps, and driving a motor vehicle without two lighted rear lamps. Defendant was acquitted of the charges of driving while intoxicated per se and driving while intoxicated. The charge of operating an uninspected motor vehicle was dismissed prior to the jury's deliberations. On appeal, defendant contends that the District Court committed reversible error by precluding his expert's testimony regarding partition ratio issues; that the evidence was legally insufficient to support any of the convictions; and that the verdicts were against the weight of the evidence.

At the outset, we note that the District Court did not err in rejecting defendant's offer of proof and precluding the expert from testifying regarding partition ratio issues (see People v Lent, 29 Misc 3d 14, 16-18 [App Term, 9th & 10th Jud Dists 2010]). Moreover, 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, beyond a reasonable doubt, defendant's guilt of driving while ability impaired, driving on the shoulder, and driving a motor vehicle without two lighted front head lamps and two lighted rear lamps.

The evidence adduced at trial established that as the police officer drove his police car on Route 878, at about 3:37 A.M., when it was completely dark out, he observed the vehicle operated by defendant being slowly driven on the shoulder, about two car lengths in front of him, without two lighted rear lamps. After the officer stopped defendant's vehicle, he observed that the vehicle did not have two lighted front head lamps, and that defendant had glassy, bloodshot eyes and slurred speech. Defendant admitted to having consumed alcohol, and had a strong odor of an alcoholic beverage about him. Defendant then failed three field sobriety tests administered by the officer.

The foregoing evidence established, beyond a reasonable doubt, that defendant's ability to operate his vehicle was impaired (Vehicle and Traffic Law § 1192 [1]; see also People v McNamara, 269 AD2d 544, 545 [2000]) in that defendant was "incapable of employing the physical and mental abilities one is expected to possess when operating a vehicle" (People v Wenz, 12 Misc 3d 134[A], 2006 NY Slip Op 51194[U] [App Term, 9th & 10th Jud Dists 2006]; see also People v Smith, 27 Misc 3d 135[A], 2010 NY Slip Op 50789[U] [App Term, 9th & 10th Jud Dists 2010]). Such evidence was also sufficient to establish that defendant drove his vehicle "during the period from one-half hour after sunset to one-half hour before sunrise" (Vehicle and Traffic Law § 375 [2] [a]), without having two lighted front head lamps and two lighted rear lamps (Vehicle and Traffic Law §§ 375 [2] [a] [1], [3]). In addition, the evidence was sufficient for a rational trier of fact to find, beyond a reasonable doubt, defendant's guilt of driving on the shoulder (see Vehicle and Traffic Law § 1131). Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record, we are satisfied that the verdicts convicting defendant of driving while ability impaired, driving on the shoulder, and failing to have two lighted front head lamps and two lighted rear lamps, were not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

With respect to the charge of moving from a lane unsafely, the People had to prove, beyond a reasonable doubt, that the vehicle that defendant was driving moved from a single lane of traffic without defendant first ascertaining that such movement could be made with safety (Vehicle and Traffic Law § 1128 [a]). Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d at 620), we find that it was legally insufficient to establish defendant's guilt, beyond a reasonable doubt, of moving from a lane unsafely. Accordingly, the accusatory instrument charging defendant with violating Vehicle and Traffic Law § 1128 (a) is dismissed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur. Decision Date: December 15, 2010

20101215

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