SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
July 27, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from judgments of the Justice Court of the Town of Greenburgh, Westchester County (Sandra A. Forster, J.), rendered May 15, 2008. The judgments convicted defendant, after a non-jury trial, of driving while intoxicated and resisting arrest.
People v Caravello (Theresa)
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 27, 2011
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
ORDERED that the judgments of conviction are affirmed.
Following a non-jury trial, defendant was convicted of driving while intoxicated (Vehicle and Traffic Law § 1192 ) and resisting arrest (Penal Law § 205.30).
Defendant's contention that the evidence was legally insufficient to establish her guilt of either charge is unpreserved for appellate review since she failed to raise this issue in the Justice Court (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 ). In any event, defendant's contention has no merit.
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 ), we find that it was legally sufficient to establish defendant's guilt of driving while intoxicated and resisting arrest beyond a reasonable doubt. It is well settled that "operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that the defendant was observed driving the car, i.e., operating it so as to put it in motion" (People v Alamo, 34 NY2d 453, 458 ). The evidence adduced at trial - - that a police officer observed defendant behind the wheel of the vehicle, with its engine running, along with the testimony that defendant had bloodshot eyes, slurred speech, was swaying and that the odor of alcohol emanated from her breath - - was sufficient to prove beyond a reasonable doubt that defendant was guilty of driving while intoxicated (Vehicle and Traffic Law § 1192 ). Moreover, the testimony that defendant, after being informed that she was under arrest, refused to place her hands behind her back, flailed her arms, pushed the police officers several times, and kicked an officer in his stomach, was sufficient to prove beyond a reasonable doubt that defendant was guilty of resisting arrest (Penal Law § 205.30). Any inconsistencies in the testimony of the police officers did not render their accounts incredible as a matter of law (see People v Baksh, 43 AD3d 1072, 1073 ;
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