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The People of the State of New York v. George T. Elliott

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


December 30, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
GEORGE T. ELLIOTT,
APPELLANT.

Appeal from a judgment of the Justice Court of the Town of East Fishkill, Dutchess County (Thomas F. Wood, J.), rendered January 4, 2006.

People v Elliott (George)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2011

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

The judgment convicted defendant, upon a jury verdict, of driving while intoxicated.

ORDERED that the judgment of conviction is affirmed.

Defendant appeals from a judgment convicting him, after a jury trial, of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). He was also convicted of driving across hazard markings (Vehicle and Traffic Law § 1128 [a]) and of moving from lane to lane unsafely (Vehicle and Traffic Law § 1128 [d]), but defendant has not filed a notice of appeal referencing those judgments of conviction.

The Court of Appeals, in comparing the offenses of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), has observed that intoxication "is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (Matter of Johnston, 75 NY2d 403, 409 [1990], quoting People v Cruz, 48 NY2d 419, 428 [1979]). The evidence in this case was legally sufficient because, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), "there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349 [2007] [citation and internal quotation marks omitted]; see People v Scroger, 35 AD3d 1218, 1219 [2006] ["Contrary to the contention of defendant, the evidence that he failed all his field sobriety tests, smelled of alcohol, had glassy eyes and slurred his speech is legally sufficient to support the conviction"]). Furthermore, in conducting an independent review of the weight of the evidence (see CPL 470.15 [5]; Danielson, 9 NY3d at 348-349), and according appropriate deference to the jury's credibility determinations, based on its opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the judgment of conviction was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644 [2006]).

We do not pass upon the issues raised by defendant relating to the judgments convicting him of violating Vehicle and Traffic Law § 1128 in the absence of a notice of appeal referring to them (see People v Hansen, 27 Misc 2d 885 [County Ct, Westchester County 1961]; see generally CPL 460.10; People v Duggan, 69 NY2d 931 [1987]; People v Humphrey, 30 AD3d 766 [2006]; People v Wallace, 246 AD2d 676 [1998]; People v Coble, 168 AD2d 982 [1990]).

Accordingly, the judgment convicting defendant of driving while intoxicated is affirmed.

Molia, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: December 30, 2011

20111230

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