Opinion
5854.
Decided on October 27, 2011.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered June 9, 2008, convicting defendant, after a jury trial, of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the third degree, and sentencing him to a term of 3 years' probation and a $200 fine, unanimously affirmed.
Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.
Andrias, J.P., Sweeny, Acosta, Freedman, Manzanet-Daniels, JJ.
To the extent defendant is challenging the legal sufficiency of the evidence, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. In addition, we conclude that the verdict was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342, 348-349). The jury's mixed verdict does not warrant a different result ( see People v Rayam, 94 NY2d 557). There is no basis for disturbing the jury's credibility determinations. The evidence supports the conclusions that defendant drove a car while his blood alcohol content was above the threshold for intoxication, and that he was aware his license had been suspended.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.