New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
August 29, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 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, are 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 demonstrated various indicia of intoxication. 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 first contends that the accusatory instrument charging him with driving while intoxicated (Vehicle and Traffic Law § 1192 ) was jurisdictionally defective because it failed to allege his operation of the vehicle. Where, as here, a defendant is charged in a simplified traffic information, and a supporting deposition by the complainant police officer has been filed, the simplified information is deemed sufficient, pursuant to CPL 100.40 (2), if it conforms to the requirements of CPL 100.25 (1) and if the supporting deposition contains "allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense . . . charged" (CPL 100.25 ). In our opinion, the simplified traffic information involved herein met the foregoing requirements.
To convict a defendant of driving while intoxicated, the People must establish at trial the defendant's guilt beyond a reasonable doubt. However, to obtain such a conviction, there is no requirement that the defendant be observed driving the vehicle; instead, operation of a vehicle can be proven by circumstantial evidence (see People v Blake, 5 NY2d 118, 120 ; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U] [App Term, 9th & 10th Jud Dists 2012]; see generally People v Alamo, 34 NY2d 453 ; People v Cunningham, 274 AD2d 484 ). The sufficiency of the particular accusatory instrument involved herein is measured by the lesser standard of reasonable cause (see CPL 100.40 ; 100.25 ). Here, the factual allegations of the supporting deposition--to the effect that, upon responding to a call concerning a motor vehicle accident, the arresting officer found defendant asleep and behind the wheel of a truck, parked on the side of a service road next to another vehicle--provided such reasonable cause to believe that the truck had been operated by defendant before it came to rest (see People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U], citing People v Saplin, 122 AD2d 498, 499 ).
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.
The decision and order of this court entered herein on March 8, 2012 (34 Misc 3d 159[A], 2012 NY Slip Op 50441[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).
Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: August 29, 2012
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