New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
March 8, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --
JOHN SALERNO, APPELLANT.
Appeal from judgments of the District Court of Nassau County, First District (Andrew Engel, J.), rendered June 2, 2010.
People v Salerno (John)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2012
PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ
The judgments convicted defendant, upon jury verdicts, of driving while intoxicated, leaving the scene of an incident without reporting and refusing to submit to a breath test, respectively.
ORDERED that the judgment convicting defendant of driving while intoxicated is affirmed; and it is further,
ORDERED that the judgment convicting defendant of leaving the scene of an incident without reporting is reversed, on the law, and the accusatory instrument is dismissed; and it is further,
ORDERED that the judgment "convicting" defendant of refusing to submit to a breath test is reversed, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the fine and surcharge, if paid, is remitted.
Defendant was charged in separate accusatory instruments with driving while intoxicated (Vehicle and Traffic Law § 1192 ), leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 ) and refusing to submit to a breath test (Vehicle and Traffic Law § 1194  [b]).
At a jury trial, the People presented evidence that defendant was found asleep, slumped over the steering wheel of an 18-wheel tractor-trailer with the engine running, shortly after that tractor-trailer had been observed being driven erratically and causing an accident, approximately a mile away. Although there was no eyewitness testimony identifying defendant as the operator of the tractor-trailer, there was no one else in the tractor-trailer when the police arrived. The arresting officer testified that, when awakened, defendant appeared belligerent and intoxicated. Defendant presented three long-time friends as witnesses, who testified that defendant had left a party earlier that evening, admittedly intoxicated, as a passenger in the tractor-trailer's sleeping compartment, with an unidentified driver behind the wheel.
Defendant's first contention on appeal, that the accusatory instrument charging defendant with driving while intoxicated (Vehicle and Traffic Law § 1192 ) was jurisdictionally defective because it failed to allege operation of the vehicle, is unavailing. The factual allegations of the accusatory instrument, supporting deposition and annexed documentation, to the effect that, upon responding to a call concerning an automobile accident, the arresting officer found defendant asleep behind the wheel of a tractor-trailer with the key in the ignition and the motor running, sufficiently alleged the element of operation (see generally People v Alamo, 34 NY2d 453 ; People v Cunningham, 274 AD2d 484 ; People v Blue, 15 Misc 3d 128[A], 2007 NY Slip Op 50597[U] [App Term, 9th and 10th Jud Dists 2007]; People v Moore, 196 Misc 2d 120 [App Term, 9th and 10th Jud Dists 2002]).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 ), we find that the evidence was legally sufficient to establish defendant's guilt of driving while intoxicated beyond a reasonable doubt. In conducting an independent weight of the evidence review (see CPL 470.15 ), we view the evidence in light of the elements of the offense as charged in this jury trial (see People v Danielson, 9 NY3d 342, 348-349 ) 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 ; People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ; People v Ramirez, 58 AD3d 757, 758 ). Upon a review of the record, we find that the verdict convicting defendant of driving while intoxicated was not against the weight of the evidence (see People v Lane, 7 NY3d 888, 890 ; Romero, 7 NY3d at 644-645; Bleakley, 69 NY2d at 495).
As the People concede that the information charging defendant with leaving the scene of an incident without reporting was jurisdictionally defective for failing to allege essential elements of the offense, we reverse the judgment convicting defendant of that charge and dismiss that accusatory instrument.
With respect to defendant's "conviction" of refusing to submit to a breath test, we note that Vehicle and Traffic Law § 1194 (1) (b) does not make out a cognizable offense (see People v Clancy, 20 Misc 3d 131[A], 2008 NY Slip Op 51432[U] [App Term, 9th & 10th Jud Dists 2008]; People v Ashley, 15 Misc 3d 80 [App Term, 9th & 10th Jud Dists 2007]). Consequently, in the interest of justice, we reverse defendant's "conviction" of this charge.
Molia, J.P., Nicolai and Iannacci, JJ., concur. Decision Date: March 08, 2012
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