Opinion
570614/19
05-18-2022
The People of the State of New York, Respondent, v. Mario Perez Vera, Defendant-Appellant.
Unpublished Opinion
PRESENT: BRIGANTTI, J.P., HAGLER, MICHAEL, JJ.
PER CURIAM
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Jeffrey M. Zimmerman, J.), rendered July 3, 2019, after a jury trial, convicting him of driving while ability impaired by alcohol, and imposing sentence.
Judgment of conviction (Jeffrey M. Zimmerman, J.), rendered July 3, 2019, affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 349 [2007]). There is no basis upon which to disturb the jury's determinations concerning credibility. The evidence established beyond a reasonable doubt that defendant's ability to drive was impaired by the consumption of alcohol (see Vehicle and Traffic Law § 1192 [1]). The credited police testimony established that defendant was asleep, slumped over behind the steering wheel of a minivan that was parked in a "no standing" zone at 3:00 a.m., with its engine running and loud music playing; defendant had an open bottle of Modelo beer between his legs; the officers tried to wake defendant by banging on the window and activating the siren on their vehicle; upon waking, defendant had watery and bloodshot eyes, the odor of an alcoholic beverage on his breath (see People v Cruz, 48 N.Y.2d 419, 426-427 [1979], appeal dismissed 466 U.S. 901 [1980]) and he refused to submit to a breath test (see People v Smith, 18 N.Y.3d 544 [2012]; see also People v Fiumara, 116 A.D.3d 421 [2014], lv denied 23 N.Y.3d 1036 [2014]).
Nor was the accusatory instrument jurisdictionally defective. The operation element of the charged offense was satisfied by allegations that defendant was seated behind the steering wheel of the vehicle with the key in the ignition and the engine running (see People v Alamo, 34 N.Y.2d 453, 458 [1974]; People v Almanzar, 113 A.D.3d 527 [2014], lv denied 23 N.Y.3d 1059 [2014]).
All concur