Opinion
20041119ORCR
Decided April 15, 2005.
Appeal by defendant from a judgment of the Justice Court, Town of Tuxedo, Orange County (L. Davis, J.), rendered on June 8, 2004, convicting her of obstructing governmental administration in the second degree (Penal Law § 195.05) and imposing sentence.
Judgment of conviction unanimously affirmed.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
On July 22, 2003, at 5:19 A.M., the defendant and her friend, James Hoops, were traveling on Route 17S when they came upon an accident scene involving a single automobile which struck a tree. The defendant, an emergency room nurse, assisted the individual involved in the accident. Hoops, a nurse and former Texas police officer, called 911. After the police arrived at the scene, a police sergeant asked Hoops to perform several field sobriety tests. After performing said tests, the sergeant directed another officer to administer a breath test to Hoops. It is uncontroverted that Hoops consented to submit to the breath test. When the defendant observed the police trying to conduct said test on Hoops, she stepped in between the police officer and Hoops and advised Hoops not to take the test. The officer asked the defendant to step away several times. At one point, the defendant went back to her vehicle, but when she saw that the officer was determined to have Hoops take the breath test, she approached again indicating to Hoops that he should not take the test. As the officer was attempting to conduct the breath test, the defendant knocked the testing device from the officer's hand. At trial, the officer testified that he smelled the odor of an alcoholic beverage on Hoops' breath and the test was only being conducted for the purpose of determining whether or not Hoops was capable of driving once he left the scene. The defendant was arrested and charged, inter alia, with obstructing governmental administration.
Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 NY2d 620), we find the evidence legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The evidence adduced at trial demonstrated that the defendant was directed to step away several times during the police investigation. While she temporarily complied with the officer's instructions, she ultimately disregarded the officer and knocked the testing device from the officer's hand causing it to fall to the ground. Contrary to defendant's contention, the police were engaged in an official function at the time of defendant's obstructive conduct. Public safety is a compelling and vital interest of the State ( see People v. Ingle, 36 NY2d 413, 419; People v. Battice, 184 AD2d 228), and the police in this case were acting pursuant to their public safety responsibilities when conducting a breath test on Hoops who had voluntarily consented to the test. Moreover, resolutions of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses ( People v. Gaimari, 176 NY 84, 94). Its determination is accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( People v. Garafolo, 44 AD2d 86). We are satisfied that the verdict of guilty was not against the weight of the evidence (CPL 470.15). Not only did defense counsel not object to the charge and supplemental charge, he expressly consented to the court's instruction to the jury and approved of the court providing the jury with a copy of the statute regarding said crime. Accordingly, defendant's remaining claim of error in the court's charge is not preserved for appellate review (CPL 470.05) and we decline to review the issue as a matter of discretion in the interest of justice since defendant was not deprived of a fair trial ( see CPL 470.15 [c]; [6] [a]).