Opinion
2005-1509 S CR.
October 27, 2006.
Appeal from judgments of the District Court of Suffolk County, First District (Salvatore A. Alamia, J.), rendered September 8, 2005. The judgments convicted defendant, upon a jury verdict, of unlawful possession of marihuana, driving while impaired by drugs and failing to stay in lane.
Judgments of conviction affirmed.
PRESENT: RUDOLPH, P.J., MCCABE and TANENBAUM, JJ.
Following a jury trial, defendant was convicted of driving while impaired by drugs (Vehicle and Traffic Law § 1192), unlawful possession of marihuana (Penal Law § 221.05) and failing to stay in lane (Vehicle and Traffic Law § 1128 [a]). On appeal, defendant contends that the People failed to prove his guilt of driving while his ability was impaired by drugs beyond a reasonable doubt, that the court erred in denying his motion to dismiss said charge for legal insufficiency, and that said guilty verdict was against the weight of the evidence.
The arresting officer from the New York State Park Police and a forensic expert from the Suffolk County Crime Laboratory testified at trial on behalf of the People.
The officer stated that he observed defendant's vehicle swerving between two lanes in an erratic manner. After he stopped defendant's vehicle and asked for identification, he noticed that defendant's eyes were bloodshot and observed a strong odor of marihuana emanating from the car. He also observed what, based on his experience and training, appeared to be 3 "partially burned roaches," marihuana cigarettes, in the ashtray. The forensic expert testified that the "roaches" were tested and confirmed that they were in fact marihuana. Said testimony, when viewed in the light most favorable to the People ( People v Contes, 60 NY2d 620), was legally sufficient to establish that defendant operated the vehicle while his ability was impaired by drugs ( see Vehicle and Traffic Law § 1192). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilty of driving while impaired was not against the weight of the evidence ( see CPL 470.15).
We note that the evidence was sufficient to warrant the court's denial of defendant's motion to dismiss for failure to establish a prima facie case at the conclusion of the People's case. As to defendant's counsel's second motion for the same relief, although the court reserved decision thereon, it never disposed of the motion. However, since defendant rested without introducing any testimony or evidence in his defense, defendant's counsel's failure to ask the court to render a decision thereon does not warrant a finding that counsel was ineffective.
Finally, it should be noted that although defendant's notice of appeal indicates that he was also appealing from the judgments convicting him of unlawful possession of
marihuana and failing to stay in lane, he raises no issue regarding said convictions in
his brief. Accordingly, said judgments are affirmed.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.