People v Rivera (Venedicto)

[*1] People v Rivera (Venedicto) 2015 NY Slip Op 51416(U) Decided on September 17, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2012-1765 Q CR

The People of the State of New York, Respondent,

against

Venedicto A. Rivera, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Robert C. McGann, J.), rendered June 11, 2012. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated per se and common-law driving while intoxicated.

ORDERED that the judgment of conviction is affirmed.

Following a jury trial on charges arising from a motor vehicle accident, defendant was found guilty of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). On appeal, defendant contends that the evidence was legally insufficient to prove his guilt of driving while intoxicated per se because the People failed to establish that the arresting officer had properly observed him for 20 minutes before the breathalyzer test had been administered to him, and because the reliability of the test result is suspect due to the three-hour delay between the time of the accident[FN1] and the time the test was administered. Defendant further contends that the evidence was legally insufficient to prove his guilt of common-law driving while intoxicated.With respect to the common-law driving while intoxicated conviction, defendant's legal sufficiency contention is unpreserved for appellate review since he failed to raise his specific argument in the Criminal Court (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). In any event, defendant's contention lacks merit.

The People's witnesses testified that, at the scene of the accident, defendant's speech was slurred; that there was an odor of an alcoholic beverage on defendant's breath; that defendant was unsteady on his feet; and that defendant stated that he had consumed two or three beers. The foregoing evidence, viewed in the light most favorable to the People (see People v Contes, 60 [*2]NY2d 620, 621 [1983]), was legally sufficient to establish defendant's guilt of common-law driving while intoxicated beyond a reasonable doubt (see People v Shank, 26 AD3d 812, 813 [2006]; People v Kane, 240 AD2d 516, 517 [1997]; People v Tracy, 19 Misc 3d 145[A], 2008 NY Slip Op 51128[U] [App Term, 9th & 10th Jud Dists 2008]). Defendant's argument concerning inconsistent testimony insofar as it pertains to this charge similarly lacks merit.

With respect to the driving while intoxicated per se conviction, defendant's argument regarding the 20-minute observation period goes to the weight, not the legal sufficiency, of the evidence (see People v Terrace, 120 AD2d 805 [1986]; People v Schessler, 14 Misc 3d 30, 32 [App Term, 9th & 10th Jud Dists 2006]). Likewise, defendant's argument regarding the reliability of the breathalyzer test result goes to the weight, not the legal sufficiency, of the evidence (see People v Rosa, 112 AD3d 551 [2013], citing People v D.R., 23 Misc 3d 605, 611 [Sup Ct, Bronx County 2009]). In order for defendant to have been found guilty of violating Vehicle and Traffic Law § 1192 (2), the People were required to establish, beyond a reasonable doubt, that defendant had "operate[d] a motor vehicle while [he had] .08 of one per centum or more by weight of alcohol in [his] . . . blood as shown by chemical analysis of [his] . . . breath."

In the case at bar, defendant was arrested at 11:28 p.m. Defendant and the arresting officer then waited at the precinct for an officer to arrive to administer the breathalyzer test, during which time the arresting officer observed defendant and completed paperwork. One and a half hours after the arresting officer had completed his paperwork, which had taken him about 10 minutes to complete, the officer who was to administer the test arrived. At 1:39 a.m., the test was administered to defendant and indicated that defendant's blood alcohol content was .13%.

We note that the two-hour time limitation set forth in Vehicle and Traffic Law § 1194 (2) (a) does not apply to situations such as that presented in the case at bar, where a defendant consents to take a breathalyzer test beyond the two-hour period after his arrest (see People v Atkins, 85 NY2d 1007 [1995]; People v Ayala, 87 AD3d 926 [2011]). In any event, there is nothing to suggest that a breathalyzer test result is an unreliable indicator of a defendant's blood alcohol content at the time that he operated the vehicle merely because it is administered to the defendant more than two hours after the defendant's arrest (see People v Atkins, 85 NY2d at 1008-1009). Based on the evidence presented, the jury could reasonably have found that defendant's blood alcohol content was greater than .08% at the time of his operation of the vehicle (Vehicle and Traffic Law § 1192 [2]). Moreover, although there were inconsistencies in the arresting officer's testimony regarding whether he was completing paperwork while he observed defendant, these inconsistencies were fully explored at trial and defendant provides no basis for this court to disturb the jury's determination in this regard (see People v Pacheco, 267 AD2d 335 [1999]; People v Jones, 229 AD2d 597 [1996]; People v Tugwell, 114 AD2d 869, 870 [1985]).

Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict convicting defendant of driving while intoxicated per se was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: September 17, 2015

Footnotes

Footnote 1:Defendant specifically argues that the test was unreliable because more than three hours had passed between the time of the accident and the time he took the breathalyzer test; however, the relevant time period begins upon a defendant's arrest (see People v Zawacki, 244 AD2d 954, 955 [1997]).