People v Atkinson (Ryheam)People v Atkinson (Ryheam)
ORDERED that the judgment convicting defendant of refusing to submit to a field breath test is reversed, on the law, the accusatory instrument underlying this judgment of conviction is dismissed, and the surcharges and fees imposed as part of this conviction, if paid, are remitted; and it is further,
ORDERED that the judgment convicting defendant of driving while intoxicated is affirmed.
In separate simplified traffic informations, defendant was charged with driving while intoxicated (
In People v Salerno (36 Misc 3d 151[A], 2012 NY Slip Op 51699[U], *2 [App Term, 9th & 10th Jud Dists 2012]), this court held that a charge of refusing to submit to a breath test pursuant to
On appeal, defendant contends that the simplified traffic information charging him with driving while intoxicated is jurisdictionally defective. Upon a review of the accusatory instrument, we find that it is not jurisdictionally defective, since it designates the offense charged, substantially conforms to the form prescribed by the Commissioner of Motor Vehicles and provides the court with sufficient information to establish that it has jurisdiction to hear the case (see
Defendant further contends that the District Court committed reversible error in denying his challenge for cause to a prospective juror, thereby necessitating that he peremptorily challenge this juror. Defendant exhausted his peremptory challenges before the completion of jury selection (see
In addition, defendant contends that the evidence adduced at trial was legally insufficient to establish that he operated a vehicle, and that, in any event, the verdict was against the weight of the evidence. A defendant is guilty of driving while intoxicated if the People establish, beyond a reasonable doubt, that he operated a motor vehicle while in an intoxicated condition. To obtain such a conviction, however, “there is no requirement that the defendant be observed driving the vehicle; instead, operation of a vehicle can be proven by circumstantial evidence” (People v Salerno, 2012 NY Slip Op 51699[U], *2; see also People v Blake, 5 NY2d 118, 120 [1958] People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U], *2 [App Term, 9th & 10th Jud Dists 2012]). In the case at bar, a police officer testified that he had responded to the scene of an accident, where he had observed defendant exiting, feet first, from a vehicle which was overturned in the middle of the road and, as defendant was exiting the vehicle, an empty bottle of brandy fell to the ground. Although the officer initially testified that he had observed defendant exiting through the driver‘s side window, he testified on cross-examination that defendant could have been exiting through the passenger‘s side window. The officer further testified that he had observed that defendant had red, glassy, bloodshot eyes, was unsteady on his feet, and had slurred speech. The officer also detected the odor of an alcoholic beverage emanating from defendant, and stated that defendant had told him that “he was trying to avoid a parked car.” Another officer, who had first encountered defendant at the precinct, testified that, in response to a question, defendant had told him that he was not the driver that night.
Viewing the foregoing 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 defendant‘s guilt of driving while intoxicated beyond a reasonable doubt. Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see
Defendant‘s remaining contentions are either unpreserved for appellate review or lack merit.
Accordingly, the judgment convicting defendant of driving while intoxicated is affirmed.
LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 31, 2014