People v Fasano (Michael)
Annotate this CaseDecided on February 20, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ
2018-1793 OR CR
The People of the State of New York, Respondent,
against
Michael Fasano, Appellant.
Larkin, Ingrassia & Tepermayster, LLP (Chelsy Jones of counsel), for appellant. Orange County District Attorney (William C. Ghee of counsel), for respondent.
Appeal from judgments of the City Court of Middletown, Orange County (Steven W. Brockett, J.), rendered July 13, 2018. The judgments convicted defendant, after a nonjury trial, of aggravated driving while intoxicated, driving while intoxicated (common law) and drinking an alcoholic beverage in a motor vehicle on a public highway, respectively, and imposed sentences.
ORDERED that so much of the appeal as is from the judgment convicting defendant of drinking an alcoholic beverage in a motor vehicle on a public highway is dismissed as abandoned; and it is further,
ORDERED that the judgments convicting defendant of aggravated driving while intoxicated and driving while intoxicated (common law) are affirmed.
Defendant was charged in three simplified traffic informations with, respectively, aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]) and drinking an alcoholic beverage in a motor vehicle on a public highway (Vehicle and Traffic Law § 1227 [1]). At a nonjury trial, the arresting officer testified that, at approximately 2 a.m. on November 18, 2017, [*2]he had observed defendant asleep behind the wheel of his vehicle, which was parked in a gas station parking lot, with its engine running. The officer knocked on the vehicle's windows to awaken defendant, who had glassy, bloodshot eyes, slurred speech and the smell of alcohol coming from his breath. A second police officer testified that he had observed a half-empty can of Four Loko, an alcoholic beverage, in defendant's vehicle. Defendant voluntarily performed three field sobriety tests, all of which he failed. Chemical testing of defendant's breath indicated that his blood alcohol content was .20 of one percent by weight.
Defendant conceded his intoxication at the time the officers came to his vehicle, but argued that he did not consume alcohol until after he had ceased operating his vehicle. He testified that he was depressed during the evening of November 17, 2017 due to his battle with alcoholism, as well as other personal, medical and marital difficulties. Defendant drove to a liquor store, where he purchased a pint of vodka to consume later. He then drove to a gas station, parked in a parking space there, entered the station's convenience store and purchased cigarettes. Defendant returned to his vehicle where, still feeling depressed, he drank the entire pint of vodka. Defendant then re-entered the convenience store, purchased a Four Loko and returned to his vehicle, where he drank half of it before passing out. He had not drunk any alcohol previously that day. Defendant also testified that, because it was 32 degrees outside, he kept his vehicle's engine running to operate the heater.
Following the trial, the City Court convicted defendant of all three charges. While defendant appealed from each judgment of conviction, his brief on appeal raises issues only with respect to the judgments convicting him of aggravated driving while intoxicated and common law driving while intoxicated. Consequently, so much of the appeal as is from the judgment convicting defendant of drinking an alcoholic beverage in a motor vehicle on a public highway is dismissed as abandoned (see People v Rodriguez, 14 AD3d 719 [2005]). On appeal, defendant contends that there was insufficient evidence to establish that he had operated a motor vehicle while intoxicated, and that the guilty verdicts were against the weight of the evidence.
Viewed in the light most favorable to the prosecution (see People v Gordon, 23 NY3d 643, 649 [2014]; People v Contes, 60 NY2d 620, 621 [1983]), the evidence elicited during the prosecution's prima facie case at trial, and conceded by the defense, that defendant was discovered by police officers asleep in the driver's seat of his vehicle with the engine on and the keys in the ignition, was legally sufficient to support defendant's convictions (see e.g. People v Garcia, 61 Misc 3d 14, 18 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Morales, 54 Misc 3d 137[A], 2017 NY Slip Op 50139[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Cross, 52 Misc 3d 133[A], 2016 NY Slip Op 51011[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; cf. People v Murray, 40 Misc 3d 47, 49 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).
Additionally, defendant's convictions were not against the weight of the evidence. It is well settled that a "motorist's operation of a vehicle can be established by circumstantial evidence" (People v Reilly, 50 Misc 3d 132[A], 2015 NY Slip Op 51946[U], *1 [App Term, 2d [*3]Dept, 9th & 10th Jud Dists 2015]). Here, the weight of the circumstantial evidence established beyond a reasonable doubt defendant's operation of his vehicle while in an intoxicated state (see People v Alamo, 34 NY2d 453, 458 [1974] ["An established line of authority in New York and elsewhere holds that for purposes of offenses for driving while intoxicated under the Vehicle and Traffic Law, operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion"]).
Accordingly, the judgments convicting defendant of aggravated driving while intoxicated and driving while intoxicated (common law) are affirmed.
ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 20, 2020
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