People v General (Darren)

[*1] People v General (Darren) 2020 NY Slip Op 50412(U) Decided on April 10, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2017-35 K CR

The People of the State of New York, Respondent,

against

Darren General, Appellant.

Appellate Advocates (Stephanie Sonsino of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Ann Bordley and Abed Z. Bhuyan of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Dena E. Douglas, J.), rendered December 5, 2016. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged, in relevant part, with driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). At a nonjury trial, the arresting officer testified that defendant was found in the driver's seat of his parked car, intoxicated and slumped towards the passenger seat, while the motor of the car was running, the headlights and interior dash lights were illuminated, and music was playing. Defendant's car was parked with the rear of the vehicle protruding into the lane of traffic. Following the trial, defendant was convicted of driving while ability impaired.

Contrary to the People's contention, defendant's claim that the evidence supporting his conviction was legally insufficient to establish the operation of a vehicle element of driving while ability impaired is preserved for appellate review (see CPL 470.05 [2]; People v Paquiot, 151 AD3d 756, 756 [2017]). Viewing the evidence in the light most favorable to the prosecution (see People [*2]v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. "It is well settled that a person sitting in the driver's seat of a vehicle with the engine running may be found to have operated the motor vehicle without the need for proof that the defendant had put the vehicle in motion" (People v Morales, 54 Misc 3d 137[A], 2017 NY Slip Op 50139[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see People v Prescott, 95 NY2d 655, 662 [2001]; People v Alamo, 34 NY2d 453, 458 [1974]; People v King, 115 AD3d 873, 874 [2014]; People v Cunningham, 274 AD2d 484 [2000]; People v David W., 83 AD2d 690 [1981]; People v Cross, 52 Misc 3d 133[A], 2016 NY Slip Op 51011[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

In conducting an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we accord great deference to the factfinder'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 Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we find that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk
Decision Date: April 10, 2020