People v Reilly (Robert)
Annotate this CaseDecided on December 31, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, IANNACCI and TOLBERT, JJ.
2014-108 D CR
The People of the State of New York, Respondent,
against
Robert L. Reilly, Appellant.
Appeal from judgments of the Justice Court of the Town of Union Vale, Dutchess County (Paul S. Pancio, J.), rendered May 1, 2013. The judgments convicted defendant, after a nonjury trial, of driving while intoxicated per se, common-law driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the third degree, respectively.
ORDERED that the judgments of conviction are affirmed.
At approximately 9:45 p.m. on July 29, 2010, defendant's girlfriend called 911 and told the dispatcher that defendant was drunk, had just left their home following a domestic dispute, and was driving his white Ford van to a gas station/convenience store located at the intersection of routes 55 and 82 in Dutchess County to buy more beer. When a New York State trooper responded to the gas station/convenience store, the only vehicle in the parking lot was defendant's white Ford van. Defendant was observed exiting the convenience store with a can of beer that he had just purchased. The key was in the ignition, although the van's engine was not running. Defendant admitted that he had consumed beer earlier that day, and that the van was his. Defendant had watery, bloodshot eyes, he was slurring his speech, he had an odor of alcohol on his breath, and he had trouble maintaining his balance. The trooper believed that defendant was intoxicated after defendant failed five of six field sobriety tests. A breath test indicated that defendant's blood alcohol content was .14 of one per centum by weight.
After a nonjury trial, the Justice Court found that the evidence was sufficient to convict defendant of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). The Justice Court also determined that defendant's admissions had been sufficiently corroborated pursuant to CPL 60.50. On appeal, defendant contends that there was insufficient evidence to establish that he was operating a motor vehicle, and that the verdict of guilt of driving while intoxicated per se and common-law driving while intoxicated was against the weight of the evidence.
An element of driving while intoxicated per se, common-law driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the third degree is that the motorist must "operate" a motor vehicle. It is well settled that the definition of the term "operate" is broader than the definition of the term "drive" (see People v Prescott, 95 NY2d 655, 662-663 [2001]; People v Totman, 208 AD2d 970, 971 [1994]; People v Dalton, 176 Misc 2d 211, 212 [*2][App Term, 2d & 11th Jud Dists 1998]). A motorist's operation of a vehicle can be established by circumstantial evidence (see People v Blake, 5 NY2d 118, 120 [1958]; People v Biondo, 47 Misc 3d 154[A], 2015 NY Slip Op 50819[U] [App Term, 9th & 10th Jud Dists 2015]; People v Atkinson, 42 Misc 3d 139[A], 2014 NY Slip Op 50169[U], *2 [App Term, 9th & 10th Jud Dists 2014]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U] [App Term, 9th & 10th Jud Dists 2012]).
In our opinion, the direct and circumstantial evidence, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), established that defendant had operated his white Ford van, and that he had done so while he was intoxicated (see People v Babala, 154 AD2d 727, 728 [1989]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U]).
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]; People v Zephyrin, 52 AD3d 543 [2008]). Upon a review of the record, we find that the verdicts of guilt of driving while intoxicated per se and common-law driving while intoxicated were not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Defendant's remaining contention is without merit.
Accordingly, the judgments of conviction are affirmed.
Marano, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: December 31, 2015
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