Opinion
570614/19
05-18-2022
The PEOPLE of the State of New York, Respondent, v. Mario Perez VERA, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Jeffrey M. Zimmerman, J.), rendered July 3, 2019, affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson , 9 NY3d 342, 349 [2007] ). There is no basis upon which to disturb the jury's determinations concerning credibility. The evidence established beyond a reasonable doubt that defendant's ability to drive was impaired by the consumption of alcohol (see Vehicle and Traffic Law § 1192 [1] ). The credited police testimony established that defendant was asleep, slumped over behind the steering wheel of a minivan that was parked in a "no standing" zone at 3:00 a.m., with its engine running and loud music playing; defendant had an open bottle of Modelo beer between his legs; the officers tried to wake defendant by banging on the window and activating the siren on their vehicle; upon waking, defendant had watery and bloodshot eyes, the odor of an alcoholic beverage on his breath (see People v Cruz , 48 NY2d 419, 426-427 [1979], appeal dismissed 466 US 901 [1980] ) and he refused to submit to a breath test (see People v Smith , 18 NY3d 544 [2012] ; see also People v Fiumara , 116 AD3d 421 [2014], lv denied 23 NY3d 1036 [2014] ).
Nor was the accusatory instrument jurisdictionally defective. The operation element of the charged offense was satisfied by allegations that defendant was seated behind the steering wheel of the vehicle with the key in the ignition and the engine running (see People v Alamo , 34 NY2d 453, 458 [1974] ; People v Almanzar , 113 AD3d 527 [2014], lv denied 23 NY3d 1059 [2014] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.