People v Montalvo (Francisco)

[*1] People v Montalvo (Francisco) 2009 NY Slip Op 51361(U) [24 Misc 3d 131(A)] Decided on June 29, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2007-1570 W CR.

The People of the State of New York, Respondent,

against

Francisco Montalvo, Appellant.

Appeal from judgments of the City Court of White Plains, Westchester County (Brian Hansbury, J.), rendered September 26, 2007. The judgments convicted defendant, upon a jury verdict, of driving while intoxicated and, after a nonjury trial, of speeding.

Judgments of conviction affirmed.

Defendant was found guilty by a jury of the misdemeanor of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and by the court, after a joint trial, of the traffic infraction of speeding (Vehicle and Traffic Law § 1180 [a]).

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that "there was legally sufficient proof from which a rational person could reasonably conclude beyond a reasonable doubt that the defendant was operating the motor vehicle in question while intoxicated in violation of Vehicle and Traffic Law § 1192 (3)" (People v Gangale, 249 AD2d 413, 413 [1998]; see People v Ritgers, 158 AD2d 628 [1990]). The People's proof in the case at bar showed that defendant accelerated abruptly as soon as a red light changed; he did not pull over on the first block notwithstanding the flashing lights of the police car; he stopped in the middle of the road rather than on the side of it on the second block; he emitted the strong odor of alcohol; he had glassy eyes and slurred speech; he staggered on his way to the rear of his car and leaned on its side; he was combative in attitude after his arrest, and he refused to take a chemical test at police headquarters. Upon the exercise of our factual review power, moreover, we are satisfied that the guilty verdict of driving while intoxicated was not against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d 633 [2006]; Gangale, at 413).

With respect to the judgment convicting defendant of speeding, we note that "defendant failed to preserve any challenge to the legal sufficiency of the evidence by failing to move to [*2]dismiss the charge and argue with specificity the claimed defect (see People v Gray, 86 NY2d 10, 19 [1995])" (People v Silvestri, 34 AD3d 986, 986-987
[2006]). We further find that the guilty verdict of speeding was not against the weight of the evidence (see Romero, 7 NY3d 633).

Accordingly, the judgments of conviction are affirmed.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009