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The People of the State of New York v. Francisco Ortiz

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


January 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
FRANCISCO ORTIZ,
APPELLANT.

Appeal from judgments of the District Court of Suffolk County, First District (William G. Ford, J.), rendered May 20, 2009.

People v Ortiz (Francisco)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2012

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

The judgments convicted defendant, upon jury verdicts, of aggravated driving while intoxicated, unlicensed operation of a motor vehicle, failure to stay on the right side of the road, and failure to obey a stop sign.

ORDERED that the judgments of conviction are affirmed.

Defendant was convicted, after a jury trial, of aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a]), unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]), failure to stay on the right side of the road (Vehicle and Traffic Law § 1120 [a]), and failure to obey a stop sign (Vehicle and Traffic Law § 1172 [a]).

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 all of the elements of aggravated driving while intoxicated, unlicensed operation of a motor vehicle, failure to stay on the right side of the road and failure to obey a stop sign beyond a reasonable doubt.

The circumstantial evidence established that defendant had been operating the vehicle when it had crashed into a utility pole (see People v Booden, 69 NY2d 185 [1987]; People v Blake, 5 NY2d 118 [1958]). Officer Alerte testified that he had witnessed the crash, that he had never lost sight of the vehicle or seen its door open, and that he had approached the vehicle immediately. When he reached the vehicle, he observed two men in the car: one was unconscious and confined in the front passenger-side seat, and the other, defendant, was unrestrained in the rear, passenger-side seat, relatively uninjured and free to move about the vehicle. Thus, the People adduced sufficient evidence to establish that defendant had been operating the vehicle when it had crashed (see People v Dolan, 1 Misc 3d 32, 33-34 [App Term, 1st Dept 2003]).

Defendant's contention that the evidence of his intoxication was legally insufficient due to a "deficient test" reading on the breathalyzer machine is unpreserved, as defendant failed to make this specific objection at trial (see People v Gray, 86 NY2d 10 [1995]). In any event, this argument is without merit. The certified breathalyzer technician who had administered the test explained that the breathalyzer machine reports a "deficient test" when there is not a sufficient sample of deep lung air to get a thoroughly accurate reading, and when it also displays a reading, here .2%, it means the measured blood alcohol content is higher than what is displayed. Thus, defendant's admission that he was "highly intoxicated," his inability to complete field sobriety tests, and the results of the breathalyzer test showing that his blood alcohol content exceeded .2% adequately established that he was intoxicated (see People v Stiffler, 237 AD2d 753 [1997]).

In conducting an independent weight of the evidence review (see CPL 470.15 [15]), we view the evidence in light of the elements of the crimes as charged in this jury trial (People v Danielson, 9 NY3d 342, 348-349 [2007]) and accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony and observe their demeanor (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Ramirez, 58 AD3d 757, 758 [2009]). Upon a review of the record, we find that the verdicts were not against the weight of the evidence (see People v Lane, 7 NY3d 888, 890 [2006]; Romero, 7 NY3d at 644-645; Bleakley, 69 NY2d at 495).

Accordingly, the judgments of conviction are affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur. Decision Date: January 20, 2012

20120120

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