People v Gonzalez (Michael)

[*1] People v Gonzalez (Michael) 2015 NY Slip Op 51938(U) Decided on December 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and TOLBERT, JJ.
2013-681 OR CR

The People of the State of New York, Respondent,

against

Michael V. Gonzalez, Appellant.

Appeal from judgments of the Justice Court of the Town of Tuxedo, Orange County (Shawn M. Brown, J.), rendered February 28, 2013. The judgments convicted defendant, upon jury verdicts, of driving while ability impaired, driving while intoxicated per se, unsafe lane change, failure to signal before turning, three charges of speeding (Vehicle and Traffic Law § 1180 [b] [one charge]; § 1180 [d] [two charges]), and possession of an open container of an alcoholic beverage in a motor vehicle, respectively.

ORDERED that so much of the appeal as is from the judgments convicting defendant of unsafe lane change, failure to signal before turning, and speeding is dismissed as abandoned; and it is further,

ORDERED that the judgments convicting defendant of driving while ability impaired and driving while intoxicated per se are affirmed; and it is further,

ORDERED that the judgment convicting defendant of possession of an open container of an alcoholic beverage in a motor vehicle is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument charging that offense is dismissed, and the fine, if paid, is remitted.

Defendant was convicted, upon jury verdicts, of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), unsafe lane change (Vehicle and Traffic Law § 1128 [a]), failure to signal before turning (Vehicle and Traffic Law § 1163 [d]), three charges of speeding (Vehicle and Traffic Law § 1180 [b] [one charge]; § 1180 [d] [two charges]), and possession of an open container of an alcoholic beverage in a motor vehicle (Vehicle and Traffic Law § 1227 [1]), respectively.

The evidence adduced at trial showed that at approximately 2:00 a.m. on September 25, 2011, defendant was observed by a Town of Tuxedo police officer driving at a consistent speed of approximately 65 miles per hour on southbound Route 17, in areas where the speed limit was 35 and 45 miles per hour. The officer made a U-turn, followed defendant, and pulled him over. A Town of Tuxedo police sergeant, who also followed defendant, observed defendant's vehicle's left tires cross a double yellow line. Both the officer and the sergeant smelled an odor of alcohol on defendant's breath, and observed that he had bloodshot and watery eyes. His speech was slurred, and he was unsteady on his feet. Defendant failed several field sobriety tests. Defendant agreed to take a breath test, which was administered at 3:20 a.m. and determined that defendant's blood alcohol content was .15 of one per centum by weight. Defendant told the officer that he [*2]had had two or three beers at a party in Nyack, Rockland County, and that he was driving from Nyack to his home in West Haverstraw, both of which are in Rockland County. The officer noticed an unopened 24-ounce can of beer on the passenger seat of defendant's car, and subsequently an opened 24-ounce can of beer was found underneath the driver's seat. There was no testimony as to how much beer, if any, was in the opened can.

Defendant's claims regarding the legal sufficiency of the evidence supporting the convictions of driving while ability impaired and driving while intoxicated per se are unpreserved for appellate review, as he made only a general motion to dismiss at the close of the People's case and did not identify with specificity the insufficiency in the proof (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10 [1995]; People v Bustamante, 47 Misc 3d 139[A], 2015 NY Slip Op 50595[U] [App Term, 9th & 10th Jud Dists 2015]; People v Brown, 44 Misc 3d 129[A], 2014 NY Slip Op 50984[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2014]; People v Sykes, 31 Misc 3d 126[A], 2011 NY Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In any event, pursuant to Vehicle and Traffic Law § 1192 (1), a defendant is guilty of driving while ability impaired if the trial evidence establishes that "by voluntarily consuming alcohol [the] defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 427 [1979]; see People v Litto, 8 NY3d 692, 706 [2007]). A conviction of driving while ability impaired "requires only a showing that the defendant's ability to operate a vehicle was impaired to some extent" (People v McNamara, 269 AD2d 544, 545 [2000]). The quantum of proof necessary to support a conviction of driving while ability impaired is far less rigorous than the evidence required to prove intoxication (see People v Reding, 167 AD2d 716, 717 [1990]; People v Yankovich, 39 Misc 3d 133[A], 2013 NY Slip Op 50530[U] [App Term, 9th & 10th Jud Dists 2013]; People v Netusil, 34 Misc 3d 137[A], 2011 NY Slip Op 52410[U] [App Term, 9th & 10th Jud Dists 2011]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of driving while ability impaired (see People v Menegan, 107 AD3d 1166, 1169 [2013]; People v Sykes, 31 Misc 3d 126[A], 2011 NY Slip Op 50442[U]; People v Mahoney, 21 Misc 3d 135[A], 2008 NY Slip Op 52200[U] [App Term, 9th & 10th Jud Dists 2008]; People v Peck, 16 Misc 3d 126[A], 2007 NY Slip Op 51213[U] [App Term, 9th & 10th Jud Dists 2007]; People v Rooney, 5 Misc 3d 126[A], 2004 NY Slip Op 51188[U] [App Term, 9th & 10th Jud Dists 2004]; People v Gertz, 189 Misc 2d 315, 316 [App Term, 9th & 10th Jud Dists 2001]). The prosecution witnesses testified as to an odor of alcohol emanating from defendant's breath, as well as to his glassy eyes, slurred speech and unsteady gait. In addition, they testified as to defendant's blood alcohol content, which was nearly twice the legal limit, his failure of several field sobriety tests, his admission that he had consumed beer, and to the fact that he was driving in Orange County while believing he was in Rockland County.

Similarly, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d at 620), we find that defendant's conviction of driving while intoxicated per se was also supported by legally sufficient evidence (see People v Mertz, 68 NY2d 136, 146 [1986]; People v Ormsby, 119 AD3d 1159, 1160 [2014]; People v Brown, 44 Misc 3d 129[A], 2014 NY Slip Op 50984[U]). Proof "of a breathalyzer reading of [.08] or more within two hours after arrest establishes prima facie a violation of Vehicle and Traffic Law § 1192 (2) which, together with evidence of one or more of defendant's deportment, speech, stability and the odor of his or her breath, is sufficient to sustain a conviction, absent evidence, expert or other and by whichever party produced, from which the trier of fact could conclude that defendant's BAC [blood alcohol content] at the time of vehicle operation was less than" .08 (People v Mertz, 68 NY2d at 146; People v Ormsby, 119 AD3d at 1160; People v Menegan, 107 AD3d at 1170). Contrary to defendant's contention, as long as the blood alcohol content is measured within two [*3]hours of the initial observation (see People v Menegan, at 1170), a conviction of violating Vehicle and Traffic Law § 1192 (2) can be sustained.

In conducting an independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record, we find that the verdicts of guilt with respect to the convictions of driving while ability impaired and driving while intoxicated per se were not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Menegan, 107 AD3d at 1169-1170; People v Velasquez, 65 AD3d 1266, 1266-1267 [2009]; People v Lizzio, 178 AD2d 741, 742 [1991]; People v Sykes, 31 Misc 3d 126[A], 2011 NY Slip Op 50442[U]).

Videotape evidence has been introduced in numerous driving while intoxicated cases (see People v Jacquin, 71 NY2d 825 [1988]; People v Powell, 95 AD2d 783, 785 [1983]; People v Belakh, 21 Misc 3d 136[A], 2008 NY Slip Op 52215[U] [App Term, 2d & 11th Jud Dists 2008]; People v Borzon, 45 Misc 3d 1217[A], 2014 NY Slip Op 51613[U], * 6-8 [Sup Ct, Bronx County 2014]; People v Paulino, 24 Misc 3d 832, 833-837 [Sup Ct, Bronx County 2009]). While videotape evidence, if in the possession of the People, must be turned over to the defense (see People v Sweeney, 18 Misc 3d 1134[A], 2008 NY Slip Op 50304[U] [Albany City Ct 2008]; People v Karns, 130 Misc 2d 247 [Rochester City Ct 1985]), defendant cites no case that requires the People to present videotape evidence in driving while intoxicated cases to establish a prima facie case, and the lack of videotape evidence in this case did not render the police testimony incredible as a matter of law, a claim which is, in any event, unpreserved for appellate review (see People v LaRoche, 44 Misc 3d 20, 23 [App Term, 9th & 10th Jud Dists 2014]; People v Schwartz, 33 Misc 3d 142[A], 2011 NY Slip Op 52226[U] [App Term, 9th & 10th Jud Dists 2011]).

The People adduced evidence regarding the maintenance and calibration of the instrument used to administer defendant's breath test four months before and two months after the administration of the test, well within the requirements of the Department of Health regulations (see 10 NYCRR 59.4 [c]). Moreover, the People routinely seek the admission in evidence of records certifying that the instrument was maintained and calibrated by a technician employed by the New York State Department of Criminal Justice Services, to satisfy the foundational requirements for the admissibility of a breath test blood alcohol content result (see CPLR 4518 [c]; People v Pealer, 20 NY3d 447, 451-452 [2013]; People v Boscic, 15 NY3d 494, 497-500 [2010]; People v Nuesi, 84 AD3d 1272, 1273 [2011]; People v Hao Lin, 46 Misc 3d 20, 24 [App Term, 2d, 11th & 13th Jud Dists 2014]; People v White, 45 Misc 3d 694, 695-698 [Crim Ct, NY County 2014]; People v Hernandez, 31 Misc 3d 208, 210-214 [Rochester City Ct 2011]). The trier of fact, based on such records, may reasonably conclude that the instrument was in proper working order when the breath test was administered, and that the chemicals used during the test were of the proper kind (see People v Boscic, 15 NY3d at 500; People v Freeland, 68 NY2d 699, 700 [1986]; People v Menegan, 107 AD3d at 1167-1168; People v Travis, 67 AD3d 1034, 1035 [2009]).

Defendant's contention that, as a result of the sergeant's failure to adequately observe defendant for 20 minutes before administering the breath test, the necessary observation requirements were not met (see Vehicle and Traffic Law § 1194 [4] [c]; 10 NYCRR 59.5 [b]) is unpreserved for appellate review, as it was not raised as a specific ground for dismissal (see People v Kostrubal, 37 Misc 3d 142[A], 2012 NY Slip Op 52280[U] [App Term, 9th & 10th Jud Dists 2012]). In any event, the contention is without merit, as the testimony established that the sergeant "would likely have detected the sounds of defendant belching, vomiting, chewing food, swallowing, and the like, but heard nothing" (People v Brown, 44 Misc 3d 129[A], 2014 NY Slip Op 50984[U], *1). Moreover, the observation requirement is not strictly construed, and proof of the observation period is not a predicate condition to the admission of breath test results. Instead, such proof affects only the weight to be afforded the test result, not its admissibility (see [*4]People v Brown, 44 Misc 3d 129[A], 2014 NY Slip Op 50984[U], *2; People v Kostrubal, 37 Misc 3d 142[A], 2012 NY Slip Op 52280[U]; People v Lent, 29 Misc 3d 14, 21 [App Term, 9th & 10th Jud Dists 2010]; People v Schuessler, 14 Misc 3d 30, 32 [App Term, 9th & 10th Jud Dists 2006]).

Defendant's contention that his conviction of possession of an open container of an alcoholic beverage in a motor vehicle was not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05 [2]). However, in the exercise of our interest of justice jurisdiction, as a matter of discretion, we reverse the judgment convicting defendant of that offense as the People failed to establish all of the elements of the offense. The officer's testimony—that there was one unopened can of beer and one opened can of beer in defendant's car—was insufficient to support defendant's conviction of that charge, as the officer did not testify that the opened can contained any alcoholic beverage (see Vehicle and Traffic Law § 1227 [1]; People v Shank, 26 AD3d 812, 814 [2006]).

Defendant's remaining contentions are without merit.

Accordingly, so much of the appeal as is from the judgments convicting defendant of unsafe lane change, failure to signal before turning, and speeding, is dismissed as abandoned; the judgments convicting defendant of driving while ability impaired and driving while intoxicated per se are affirmed; and the judgment convicting defendant of possession of an open container of an alcoholic beverage in a motor vehicle is reversed and the accusatory instrument charging that offense is dismissed.

Marano, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: December 31, 2015