People v. Westcott, 84 A.D.3d 1510

84 A.D.3d 1510

N.Y. App. Div.

2011

THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v ERIC D. WESTCOTT JR., Appellant.

[923 NYS2d 763]

Supreme Court, Appellate Division, Third Department, New York

Egan Jr., J.

Egan Jr., J. Appeal from a judgmеnt of the County Court of Madison County (DiStefano, J.), rendered January 11, 2010, upon a verdict convicting defendant of the crimes of aggravated driving while intoxicated and driving while intoxicated.

During the early morning hours of February 13, 2009, State^* Troopers Justin Lowe and Daniel Wyant were on patrol on the New York State Thruway in Madison County when they observed a vehicle parked on the shoulder of the oрposing lanes. After making a U-turn and pulling up behind this vehicle, Lowe and Wyant approached it and observed threе occupants inside—two men in the front seat and a female in the rear passenger seat. Lowe apрroached the driver‘s side of the vehicle and found defendant sitting behind the wheel, emanating a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍strong odor of alсohol. The engine was running and the keys were in the ignition. Lowe asked defendant to exit the vehicle and observed that he did so very slowly, using the vehicle‘s door for assistance, and that he had trouble maintaining his balance. Lowe requеsted that defendant submit to field sobriety tests, which defendant refused. Based on his observations, Lowe concluded that defendant was intoxicated and placed him under arrest for driving while intoxicated.

After his arrest and transport to State Police barrаcks, defendant submitted to a breathalyzer test, which revealed that his blood alcohol content was .22%. A grand jury subsequently indicted defendant for aggravated unlicensed operation of a motor vehicle in the first degree, aggravated driving while intoxicated and driving while intoxicated. The People also filed a special information that accused defendant of knowing that his license had previously been suspended or revoked for refusing to submit to a сhemical test stemming from a previous incident. Following a jury trial, defendant was convicted of aggravated driving while intoxicated and driving while intoxicated.¹ Defendant then moved to set aside the verdict pursuant to CPL 330.30, which motion County Court denied. Defendant was thereafter sentenced to three years of probation, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with the imposition of a $1,000 fine and certain other surcharges. Defendant now appeals.

Initially, we reject defendant‘s claim that the convictions were against the weight of the evidence. Inasmuch as a different verdict would not have been unreasonable, we “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and thе relative strength of conflicting inferences that may be drawn from the testimony” (People v Dixon, 62 AD3d 1036, 1038 [2009], lv denied 12 NY3d 914 [2009] [internal quotation marks and citations omitted]; see People v Baltes, 75 AD3d 656, 658 [2010], lv denied 15 NY3d 918 [2010]; People v Johnson, 70 AD3d 1188, 1189-1190 [2010]). Our weight of the evidence review “is not limited to a determination of credibility issues; rather, we ‘must [also] consider the elements of the crime, for even if the prosecution‘s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable dоubt’ ” (People v Dixon, 62 AD3d at 1038, quoting People v Danielson, 9 NY3d 342, 349 [2007]; see People v Hayden, 60 AD3d 1155, 1156 [2009], lv denied 12 NY3d 854 [2009]).

Here, defendant conceded that he was sitting in the driver‘s seat when the Troopers approached thе vehicle and that he was intoxicated, but denied that he ever drove the vehicle and that, in any event, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it had sustained accident damage that rendered the vehicle inoperable. As such, the only contested element оf either offense consisted of defendant‘s purported operation of the vehicle (see Vehicle and Traffic Law § 1192 [2-a], [3]). In grand jury testimony read to the jury,² defendant testified that during the early morning hours of February 13, 2009, Zach Duffy was driving defendant and Sonnet White, a female friend, home from a nightclub in defendant‘s automobile when, upon entering the Thruway, they struck a guardrail, damaging the car. Defendant testified that thеy continued for a distance and then pulled over. According to defendant, as the Troopers pulled up, Duffy hopped into the backseat and he jumped into the driver‘s seat. White testified at trial that both men were in the front sеat—with Duffy initially in the driver‘s seat and defendant on the passenger‘s side—but switched sides seconds before the Troopers approached. Lowe testified that, upon approaching defendant‘s running vehicle, he observed defendant sitting in the driver‘s seat, wearing a seatbelt. Finally, defendant‘s brother, an auto mechanic, testified that it was his opinion, based on a visual inspection conducted after defendant‘s arrest, that defendant‘s vehicle was inoрerable due to the accident damage.

“[T]he term ‘operate’ as used in the Vehicle and Traffic Law is broader than the term ‘drive’ аnd extends to a situation where a motorist begins to engage the motor for the purpose of putting the vehicle into motion” (People v Totman, 208 AD2d 970, 971 [1994] [citation omitted]; accord People v Beyer, 21 AD3d 592, 594 [2005], lv denied 6 NY3d 752 [2005]). Mindful of this principle and the fact that there is no requirement that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a vehicle be in actual motion for a vehicle to be in “operation” (People v Prescott, 95 NY2d 655, 662 [2001]), which can be established by evidence that an “individual was merely behind the whеel with the engine running” (People v David W., 83 AD2d 690, 690 [1981]; see People v Alamo, 34 NY2d 453, 458 [1974]), we find no reason to disturb the jury‘s credibility determination with respect to defendant‘s position in the vehiсle or its operability.

Finally, as no objection was made at the time of trial with respect to defendant‘s remaining contention—that he was prejudiced because the procedures employed in CPL 200.60 were not followed—this challenge has not been preserved for appellate review, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and we decline to exercise our interest of justice jurisdiction (see CPL 470.05 [2]; CPL 470.15 [6] [a]; People v Dickinson, 78 AD3d 1237, 1239 [2010]; People v Reid, 232 AD2d 173, 174 [1996], lv denied 90 NY2d 862 [1997]).

Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.

Notes

At the close of the People‘s case, County Court granted defendant‘s motion to dismiss the charge of aggrаvated unlicensed operation of a motor vehicle.

Defendant did not testify at trial, but stipulated that his testimony before the grand jury be read to the trial jury.

Although defendant improperly presented the request for review of the weight of the evidence within his challenge to the denial of the CPL 330.30 application (see ; ), we reach this issue in addressing his appeal from the judgment of conviction.