Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Wayne WRIGHT, Defendant–Appellant.
Judgment of conviction (James M. Burke, J.), rendered May 4, 2011, affirmed.
Defendant's present challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review, inasmuch as he failed to move for a trial order of dismissal based on the alleged insufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19 [1995] ), and we decline to review it in the interest of justice. As an alternative holding, we find that the verdict convicting defendant of driving while impaired (see Vehicle and Traffic Law § 1192[1] ) and driving while intoxicated per se (see Vehicle and Traffic Law § 1192[2] ) was based on legally sufficient evidence, and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v. Danielson, 9 N.Y.3d 342, 348–349 [2007] ). The jury was entitled to credit the unrebutted police testimony showing that the Intoxilyzer 5000 was in proper working condition, that the test itself was properly administered (see People v. Fratangelo, 23 N.Y.3d 506 [2014] ), and that it measured defendant's blood alcohol content at .15 percent, which is prima facie evidence of defendant's violation of Vehicle and Traffic Law § 1192(2) (see People v. DeMarasse, 85 N.Y.2d 842, 845 [1995] ; People v. Mertz, 68 N.Y.2d 136, 139 [1986] ).
Defendant's conviction of driving while impaired was sufficiently supported by his own admission that he had consumed two drinks, the credited police testimony that, after being stopped for a traffic infraction, defendant exhibited signs of intoxication—his eyes were bloodshot and watery, there was an odor of alcohol on his breath and that he failed to put the car in park when he reached for his registration, causing the car to "lurch" forward (see People v. Cruz, 48 N.Y.2d 419, 426–427 [1979], appeal dismissed 446 U.S. 901 [1980] ).
Defendant's argument that the jury, by acquitting him of driving while intoxicated (see Vehicle and Traffic Law § 1192[3] ), necessarily rejected the testimony of the arresting officers, "calls for an impermissible invasion of the jury's deliberative processes" (People v. Williams, 239 A.D.2d 271, 272 [1997], lv denied 90 N.Y.2d 899 [1997], quoting People v. Rivera, 201 A.D.2d 377 [1994], lv denied 83 N.Y.2d 875 [1994] ; see People v. Rayam, 94 N.Y.2d 557, 562–563 [2000] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.