People v. Lont

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. 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[3] ), and disobeying traffic signals (Vehicle and Traffic Law § 1111[d][1] ). 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 ( seeCPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 491–492 [2008];People v. Hines, 97 N.Y.2d 56, 61 [2001];People v. Gray, 86 N.Y.2d 10 [1995] ). 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 ( seeVehicle and Traffic Law § 1194[6][b] ). The foregoing evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621 [1983] ), 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 ( seeVehicle and Traffic Law § 1192[2–a][a] ).

With respect to defendant's conviction of driving while intoxicated (Vehicle and Traffic Law § 1192[3] ), 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 N.Y.2d 386, 390 [1975] [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 N.Y.2d 117, 122 [1977] ). 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 A.D.2d 958, 961 [2003];People v. Knapp, 272 A.D.2d 637, 639 [2000] ). The foregoing evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d at 621), was sufficient to establish, beyond a reasonable doubt, that defendant operated a motor vehicle while intoxicated ( seeVehicle and Traffic Law § 1192[3] ).

Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348–349 [2007] ), 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 [2004];People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ). 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 [2006] ).

Accordingly, the judgment of conviction, insofar as appealed from, is affirmed. WESTON, J.P., PESCE and RIOS, JJ., concur.