Opinion
December 31, 1998
Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Driving While Ability Impaired.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of driving while his ability was impaired by alcohol (Vehicle and Traffic Law § 1192 Veh. Traf. [1]), aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 Veh. Traf. [3] [a]) and failure to keep right (Vehicle and Traffic Law § 1120 Veh. Traf. [a]). Defendant contends that the conviction of driving while ability impaired and aggravated unlicensed operation is against the weight of the evidence and that the sentence is unduly harsh or severe. The issue at trial under Vehicle and Traffic Law § 1192 Veh. Traf. (1) was "whether, by voluntarily consuming alcohol, this particular 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 N.Y.2d 419, 427, appeal dismissed 446 U.S. 901). The issue was the same under Vehicle and Traffic Law § 511 Veh. Traf. (3) (a) ( see, People v. Keller, 252 A.D.2d 819, lv denied 92 N.Y.2d 927; People v. Cleveland, 238 A.D.2d 897, 898; People v. Boyles, 210 A.D.2d 732, 733, n 2; People v. Crandall, 199 A.D.2d 867, 868, lv. denied 83 N.Y.2d 803). Supreme Court's findings that defendant was impaired by alcohol and drove under the influence of alcohol are not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Lizzio, 178 A.D.2d 741, 742, lv denied 79 N.Y.2d 921; People v. Monk, 177 A.D.2d 602, 603, lv denied 79 N.Y.2d 861). The findings are supported by evidence of defendant's poor driving, signs of intoxication, inability to perform field sobriety tests, and refusal to consent to a chemical test.
Given defendant's prior convictions for DWI, the court did not abuse its discretion in sentencing defendant to 60 days in jail and five years' probation.
Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.