People v Perry (Jonah)

[*1] People v Perry (Jonah) 2007 NY Slip Op 50069(U) [14 Misc 3d 131(A)] Decided on January 17, 2007 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570249/03.

People of the State of New York, Respondent,

against

Jonah Perry, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Gerald Harris, J.), rendered January 23, 2003, convicting him, after a jury trial, of driving while intoxicated, endangering the welfare of a child, and driving while ability impaired, and imposing sentence.

PER CURIAM:

Judgment of conviction (Gerald Harris, J.), rendered January 23, 2003, affirmed.

The court properly granted the People's challenge for cause to a prospective juror. To the extent that the juror ultimately provided a purported assurance of impartiality, such assurance was "less-than-unequivocal" (People v Arnold, 96 NY2d 358, 363 [2001]) when viewed in context. "Where there is any doubt, the court should err on the side of disqualification because the worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror" (People v Oliveri, 29 AD3d 330, 331 [2006], lv denied 7 NY3d 760 [2006]).

Defendant's claim that his conviction for driving while ability impaired (Vehicle and Traffic Law § 1192[1]) should be dismissed as a lesser inclusory concurrent count of driving while intoxicated (Vehicle and Traffic Law §1192[2]) is unpreserved for appellate review (see People v Silverio, 252 AD2d 358 [1998]), lv denied 92 NY2d 930 [1998]). In any event, driving while ability impaired is not a lesser included offense of driving while intoxicated under subsection two of Vehicle and Traffic Law §1192, the blood alcohol level crime (see People v Brown, 53 NY2d 979, 981 [1981]).

This constitutes the decision and order of the court.
Decision Date: January 17, 2007