Opinion
2012-03-23
The PEOPLE of the State of New York, Respondent, v. Douglas L. JULIUS, Defendant–Appellant.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of felony driving while intoxicated ( [DWI] Vehicle and Traffic Law § 1192 [3]; § 1193[1][c][ii] ). Contrary to defendant's contention, the evidence is legally sufficient to establish that he operated a motor vehicle in an intoxicated condition ( see People v. Rawleigh, 89 A.D.3d 1483, 1483, 932 N.Y.S.2d 660; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Contrary to defendant's further contention, County Court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) without conducting a Frye hearing ( see People v. Tetrault, 53 A.D.3d 558, 558–559, 861 N.Y.S.2d 408, lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094; People v. Hammond, 35 A.D.3d 905, 907, 827 N.Y.S.2d 298, lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 556, 868 N.E.2d 239; People v. Grune, 12 A.D.3d 944, 945, 785 N.Y.S.2d 178, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679). As the Second and Third Departments have stated, and we agree, “ ‘[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability’ ” ( Tetrault, 53 A.D.3d at 559, 861 N.Y.S.2d 408, quoting Hammond, 35 A.D.3d at 907, 827 N.Y.S.2d 298). “Here, the People laid a proper foundation; the officer who conducted the HGN test testified regarding his qualifications to administer the test and the techniques he employed” ( Hammond, 35 A.D.3d at 907, 827 N.Y.S.2d 298; see Tetrault, 53 A.D.3d at 559, 861 N.Y.S.2d 408).
Contrary to defendant's additional contention, the sentence is not unduly harsh or severe. Finally, we note that defendant has not taken an appeal from the judgment revoking the sentence of probation imposed in connection with a prior DWI conviction and imposing a sentence of incarceration, and thus his challenge to the severity of the sentence imposed upon the revocation of probation is not properly before us ( see CPL 460.10; see generally People v. Kuras, 49 A.D.3d 1196, 1197, 852 N.Y.S.2d 907, lv. denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.