People v Escoto (Franklin)

[*1] People v Escoto (Franklin) 2015 NY Slip Op 51421(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., WESTON and SOLOMON, JJ.
2013-239 Q CR

The People of the State of New York, Respondent,

against

Franklin Escoto, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered November 20, 2012. The judgment convicted defendant, upon a jury verdict, of common-law driving while intoxicated, driving while intoxicated per se and aggravated driving while intoxicated per se.

ORDERED that the judgment of conviction is affirmed.

The owner of a Honda minivan testified at a jury trial that, at approximately 8:00 a.m. on Saturday, November 19, 2011, he was inside his vehicle, which was parked on Hampton Street in Queens, when the driver's door was struck and damaged by a black two-door Infiniti sports car. The owner of the Honda chased the Infiniti on foot to the end of the block, where it double-parked. The owner of the Honda testified that defendant, who appeared to be drunk, exited from the driver's door of the Infiniti. Defendant was arrested. An Intoxilyzer test indicated that defendant's blood alcohol content was .213 of one percentum by weight. Defendant's friend, who claimed that he was not drunk, testified that he, in fact, had been driving the Infiniti, rather than defendant. Following the trial, the jury found defendant guilty of all three charges.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of common-law driving while intoxicated, driving while intoxicated per se, and aggravated driving while intoxicated per se. The People presented evidence establishing that defendant's blood alcohol content was .213 of one percentum by weight (see People v Lont, 34 Misc 3d 142[A], 2012 NY Slip Op 50088[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; see also People v Colburn, 123 AD3d 1292, 1293 [2014]; People v Ingram, 3 AD3d 791, 792 [2004]). The owner of the Honda that was struck by the Infiniti unequivocally testified that it was defendant who had exited the driver's door of the Infiniti. Moreover, both the owner of the Honda and the arresting officer testified that defendant reeked of alcohol and had watery eyes (see People v Ortiz, 34 Misc 3d 142[A], 2012 NY Slip Op 50086[U] [App Term, 9th & 10th Jud Dists 2012]; see also People v Thornton, 87 AD3d 663, 664 [2011]; People v Maricevic, 52 AD3d 1043, 1044-1045 [2008]).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord [*2]great deference to the opportunity of the jury to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Adilovic, 34 Misc 3d 159[A], 2012 NY Slip Op 50437[U] [App Term, 9th & 10th Jud Dists 2012]). We must weigh "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d at 495 [internal quotation marks and citation omitted]), and determine whether an acquittal would not have been unreasonable based upon the evidence, and whether the jury failed to accord the evidence the weight it should have been accorded (id.; see People v Danielson, 9 NY3d at 348).

Here, after weighing any conflicting testimony, reviewing the rational inferences to be drawn from the evidence, and evaluating the strength of such conclusions, we find that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 NY3d at 348-349; People v Annis, 126 AD3d 1525, 1526 [2015]; People v Thornton, 87 AD3d at 664; People v Maricevic, 52 AD3d at 1044-1045; People v Persaud, 188 AD2d 559 [1992]; People v Lont, 34 Misc 3d 142[A], 2012 NY Slip Op 50088[U]; People v Ortiz, 34 Misc 3d 142[A], 2012 NY Slip Op 50086[U]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.

Decision Date: September 17, 2015