SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
January 20, 2012
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 June 12, 2009.
People v Lont (Jozef)
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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., PESCE and RIOS, JJ
The judgment, insofar as appealed from as limited by the brief, convicted defendant, upon a jury verdict, of aggravated driving while intoxicated per se and driving while intoxicated.
ORDERED that the judgment of conviction, insofar as appealed from, is affirmed.
Following a jury trial, defendant was convicted of aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]), driving while intoxicated (Vehicle and Traffic Law § 1192 ), and disobeying traffic signals (Vehicle and Traffic Law § 1111 [d] ). On appeal, defendant contends that the evidence was legally insufficient to establish his guilt, beyond a reasonable doubt, of aggravated driving while intoxicated per se and driving while intoxicated.
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 ). In any event, defendant's contention lacks merit.
With respect to his conviction of aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]), defendant contends that his blood alcohol content test result of .214 of one per centum by weight was incorrect, and that more than one breath sample should have been taken. A review of the evidence, however, indicates that the breath test machine was in proper working order and that the test was properly administered by a qualified person. New York law requires that only one breath sample be taken (see e.g. 10 NYCRR § 59.5), and defendant was not precluded from having a physician of his own choosing administer a test in addition to the test administered by the police officer (see Vehicle and Traffic Law § 1194  [b]). The foregoing evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 ), was sufficient to establish, beyond a reasonable doubt, that defendant operated a motor vehicle while having .18 of one per centum or more by weight of alcohol in his blood as shown by a chemical analysis of his breath (see Vehicle and Traffic Law § 1192 [2-a] [a]).
With respect to defendant's conviction of driving while intoxicated (Vehicle and Traffic Law § 1192 ), the arresting police officer testified that he had observed defendant drive through a steady red light, and that defendant had watery eyes, slurred speech and the odor of alcohol emanated from defendant's breath. Also, the police officer who administered the breath test to defendant testified that he had detected the odor of alcohol on defendant. A jury deliberating on a Vehicle and Traffic Law § 1192 (3) charge may consider evidence of a breath test result to support a finding of common law intoxication (see People v Farmer, 36 NY2d 386, 390  [Vehicle and Traffic Law § 1192 (2) and (3) "closely overlap and are but species of the generic offense of Operating a motor vehicle while under the influence of alcohol"]; see also People v Gower, 42 NY2d 117, 122 ). Moreover, the DVD admitted into evidence, which depicts defendant taking the breathalyzer and field sobriety tests, speaks for itself, and the jury was free to selectively credit or reject testimony (see People v Cobenais, 301 AD2d 958, 961 ; People v Knapp, 272 AD2d 637, 639 ). The foregoing evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d at 621), was sufficient to establish, beyond a reasonable doubt, that defendant operated a motor vehicle while intoxicated (see Vehicle and Traffic Law § 1192 ).
Furthermore, 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, 348-349 ), we accord great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ). Upon a review of the record, we are satisfied that the verdict convicting defendant of aggravated driving while intoxicated per se and driving while intoxicated was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 ).
Accordingly, the judgment of conviction, insofar as appealed from, is affirmed.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 20, 2012
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