Opinion
2015–1123 K CR
04-06-2018
The PEOPLE of the State of New York, Respondent, v. Gerald PRESIDENT, Appellant.
New York City Legal Aid Society, (Ronald Alfano of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Sholom J. Twersky and Jordan Cerruti of counsel), for respondent.
New York City Legal Aid Society, (Ronald Alfano of counsel), for appellant.
Kings County District Attorney (Leonard Joblove, Sholom J. Twersky and Jordan Cerruti of counsel), for respondent.
PRESENT: DAVID ELLIOT, J.P., MICHAEL L. PESCE, THOMAS P. ALIOTTA, JJ.
ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of unlicensed operation of a motor vehicle and providing that the count of the accusatory instrument charging that offense is dismissed, and the fine, thereon, if paid, is remitted; as so modified, the judgment of conviction is affirmed.
At a nonjury trial, the evidence established that, on November 18, 2013, a New York City police officer on patrol observed that defendant's vehicle was double parked, and blocking the flow of traffic. When defendant moved the vehicle, he almost hit a parked vehicle. The officer stopped defendant, and, as defendant, the automobile's operator and only occupant, rolled down his window, the officer detected a strong odor of an alcoholic beverage emanating from the vehicle. The officer observed that defendant's eyes were watery and bloodshot, and that defendant's speech was incoherent. The officer asked defendant if he had been drinking, and defendant stated that he had had "one beer." The officer testified that no one had entered or exited from the vehicle, and that he had observed that the keys were in the ignition and the engine was running. In response to the officer's request for defendant's driver's license, defendant failed to produce the document. The officer arrested defendant and transported him to a testing facility, where defendant was asked to submit to a chemical breath test of the alcohol content of his blood. Defendant consented to be tested and agreed to submit to a series of physical coordination tests, which tests were videotaped. An Intoxilyzer 5000 EN device recorded defendant's blood alcohol content at .14 of one per centum by weight, and both the arresting officer and the officer administering the coordination tests concluded that defendant's performance on the tests indicated that defendant was intoxicated. The officer further testified that he had obtained defendant's driver's license number from the police data base. Defendant testified that he had not been operating the motor vehicle prior to the time that he had been stopped by the police.
Following the trial, the Criminal Court found defendant guilty of driving while ability impaired ( Vehicle and Traffic Law § 1192 [1 ] ) and unlicensed operation of a motor vehicle ( Vehicle and Traffic Law § 509 [1 ] ).
On appeal, defendant contends that the verdict convicting him of driving while ability impaired was against the weight of the evidence because his trial testimony established that he had not been operating the vehicle prior to the time that he had been stopped by the police. In addition, defendant contends that the evidence was legally insufficient to support the conviction of unlicensed operation of a motor vehicle.
In conducting an independent review of the weight of the evidence (see People v. Danielson , 9 NY3d 342, 348 [2007] ), great deference is accorded to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v. Mateo , 2 NY3d 383 [2004] ; People v. Bleakley , 69 NY2d 490, 495 [1987] ). Upon a review the record, we find that the verdict of guilt with respect to the charge of driving while ability impaired was not against the weight of the evidence (see People v. Romero , 7 NY3d 633 [2006] ), as an acquittal would have been unreasonable.
Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 NY2d 620 [1983] ), we find that the evidence was legally insufficient to establish defendant's guilt, beyond a reasonable doubt, of unlicensed operation of a motor vehicle. "Although the operation of a motor vehicle without a license constitutes an offense ( Vehicle and Traffic Law § 509 ), the failure to produce one upon demand of a police officer merely creates a rebuttable presumption that the driver is not duly licensed" ( People v. Vagenas , 21 Misc 3d 135[A], 2008 NY Slip Op. 52204[U], *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2008] ). The officer's testimony with respect to his having obtained defendant's driver's license number from the police data base established that defendant had a valid driver's license, and no proof was offered to show that defendant's license had been revoked or suspended at the time of the alleged incident.
Accordingly, the judgment of conviction is modified by vacating the conviction of unlicensed operation of a motor vehicle and dismissing that count of the accusatory instrument.
ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.