People v. David W
| Decision Date | 16 July 1981 |
| Citation | 442 N.Y.S.2d 278,83 A.D.2d 690 |
| Parties | The PEOPLE of the State of New York, Respondent, v. DAVID "W" * , Appellant. Supreme Court, Appellate Division, Third Department |
| Court | New York Supreme Court — Appellate Division |
Gerald A. Keene, Elmira, for appellant.
D. Bruce Crew III, Chemung County Dist. Atty., Elmira (Weeden A. Wetmore, Asst. Dist. Atty., Elmira, of counsel), for respondent.
Before KANE, J. P., and MAIN, MIKOLL, YESAWICH and HERLIHY, JJ.
Appeal from a judgment of the County Court of Chemung County, rendered June 1, 1979, which adjudicated defendant a youthful offender.
At approximately 9:00 P.M. on April 29, 1978, Deputy Sheriff Larry Preston of the Chemung County Sheriff's Department found defendant slumped over the steering wheel of his automobile with the engine running while the vehicle was parked along the shoulder of Harris Hill Road in the Town of Big Flats. A breathalyzer test administered to defendant indicated that the alcohol content of his blood at the time of his arrest was 0.20% by weight, and he was subsequently indicted for operating a motor vehicle while under the influence of alcohol as a felony (Vehicle and Traffic Law, § 1192, subd. 2). At his later trial, he also admitted that he had started his automobile and tried to move it before he was discovered by the Deputy Sheriff, and under these circumstances, the jury returned a verdict of guilty of the crime charged. This appeal ensued.
We hold that the judgment of County Court should be affirmed. In so ruling, we initially find without merit defendant's contention that the trial court erred in refusing to allow him to present a witness to testify regarding the inoperability of his automobile. It is well settled that an individual can be found guilty of operating a motor vehicle while under the influence of alcohol if he begins to "manipulate the machinery of the motor for the purpose of putting the automobile in motion" even if he is unsuccessful in moving the vehicle (see People v. Domagala, 123 Misc. 757, 758, 206 N.Y.S. 288), and operation of the vehicle is established by proof that an individual was merely behind the wheel with the engine running and without proof that he was seen driving the car (People v. Alamo, 34 N.Y.2d 453, 358 N.Y.S.2d 375, 315 N.E.2d 446; People v. Marriott, 37 A.D.2d 868, 325 N.Y.S.2d 177). Under this standard, the testimony of the proposed witness as to the operability of the vehicle would not have been relevant to the question of defendant's...
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