SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
March 16, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William L. McGuire, Jr., J.), rendered October 16, 2008.
People v Sykes (Gerard)
Decided on March 16, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., GOLIA and STEINHARDT, JJ
The judgment convicted defendant, upon a jury verdict, of driving while ability impaired.
ORDERED that the judgment of conviction is affirmed.
Following a jury trial, defendant was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 ). Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 ; People v Hawkins, 11 NY3d 484, 491-492 ; People v Hines, 97 NY2d 56, 61 ; People v Gray, 86 NY2d 10 ). A motion for a trial order of dismissal "must be specifically directed' at the error being urged" (People v Hawkins, 11 NY3d at 492 [citation omitted]), and a defendant may not raise for the first time on appeal arguments about the legal sufficiency of the evidence which he did not raise at trial (see People v Bynum, 70 NY2d 858 ; People v Udzinski, 146 AD2d 245, 250 ). In any event, defendant's contention has no merit.
Pursuant to Vehicle and Traffic Law § 1192 (1), a defendant is guilty of driving while ability impaired if the evidence adduced at trial shows that "by voluntarily consuming alcohol . . . defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 427 ; see also People v Litto, 8 NY3d 692, 706 ; People v McNamara, 269 AD2d 544, 545 ). Compared to proof of intoxication, the quantum of proof necessary to support a conviction of driving while impaired is "far less rigorous" (People v Reding, 167 AD2d 716, 717 ). At trial, a police officer testified that when she arrived on the scene of a two car accident, defendant admitted that he was the driver of one of the vehicles involved in the accident and that he had been drinking; that defendant had watery, bloodshot eyes; that an odor of alcohol emanated from defendant's breath; that defendant's demeanor was unsteady, and he swayed a bit; that defendant's speech was slurred; and that, in her opinion, defendant was intoxicated. The foregoing evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 ), was legally sufficient to establish defendant's guilt of driving while ability impaired (Vehicle and Traffic Law § 1192 ) beyond a reasonable doubt.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383 ; People v Bleakley, 69 NY2d 490 ). Upon a review of the record, we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 ).
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 16, 2011
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