Opinion
2014-09-26
The PEOPLE of the State of New York, respondent, v. Dean TUSZYNSKI, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of, inter alia, driving while intoxicated as a class D felony (Vehicle and Traffic Law §§ 1192[3]; 1193[1][c][ii] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ), defendant contends that the verdict with respect to those counts is contrary to the weight of the evidence with respect to the issue of intoxication. We reject that contention.
We note at the outset that the conviction of aggravated unlicensed operation of a motor vehicle in the first degree does not require proof of intoxication, and we thus reject defendant's contention with respect to that crime. Unlike the driving while intoxicated count, which requires proof that defendant was intoxicated ( seeVehicle and Traffic Law § 1192[3] ), the aggravated unlicensed operation of a motor vehicle in the first degree count may be sustained upon proof that defendant was driving while his ability to operate a motor vehicle was impaired pursuant to Vehicle and Traffic Law § 1192(1) ( see People v. Gelster, 256 A.D.2d 1133, 1133, 684 N.Y.S.2d 712; see e.g. People v. Kaminski, 109 A.D.3d 1186, 1186, 971 N.Y.S.2d 721, lv. denied22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976; People v. DeCarlis, 37 A.D.3d 1040, 1040, 829 N.Y.S.2d 314, lv. denied8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238), and it is well settled that a “ ‘[c]onviction of [that] offense [does] not require proof of intoxication, but only [requires proof] that defendant's driving ability was impaired to any extent’ ” by the consumption of alcohol (People v. McDonald, 27 A.D.3d 949, 950, 811 N.Y.S.2d 492). Here, defendant concedes in his brief that the weight of the evidence supports a finding that his driving ability was impaired by his consumption of alcohol.
In any event, we conclude that the verdict is not against the weight of the evidence on the issue of intoxication. “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor” (People v. Streeter, 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [internal quotation marks omitted]; see People v. Roman, 107 A.D.3d 1441, 1442–1443, 967 N.Y.S.2d 791, lv. denied21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858; People v. Scott, 107 A.D.3d 1635, 1636, 968 N.Y.S.2d 768, lv. denied21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151). “Viewing the evidence in a neutral light and weighing the probative value of the conflicting testimony and the conflicting inferences that could be drawn, while deferring to the jurors' ability to observe the witnesses and assess their credibility, aided by the video recording, we find that it was not contrary to the weight of the credible evidence for the jury to find that defendant” was intoxicated (People v. Purvis, 90 A.D.3d 1339, 1341, 935 N.Y.S.2d 212, lv. denied18 N.Y.3d 997, 945 N.Y.S.2d 651, 968 N.E.2d 1007; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant further contends that the persistent felony offender statutory scheme is unconstitutional in light of the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. To the contrary, it is well settled that Penal Law § 70.10 and CPL 400.20 are constitutional ( see People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026, cert. denied ––– U.S. ––––, 132 S.Ct. 123, 181 L.Ed.2d 46; People v. Quinones, 12 N.Y.3d 116, 122–131, 879 N.Y.S.2d 1, 906 N.E.2d 1033, cert. denied558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.