People v. Gonzalez

• Decision Date: 31 December 2015
• Docket Number: No. 2013–681ORCR.,2013–681ORCR.
• Citation: 28 N.Y.S.3d 649 (Table)
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael V. GONZALEZ, Appellant.
• Court: New York Supreme Court — Appellate Term

28 N.Y.S.3d 649 (Table)

The PEOPLE of the State of New York, Respondent,
v.
Michael V. GONZALEZ, Appellant.

No. 2013–681ORCR.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Dec. 31, 2015.

Appeal from judgments of the Justice Court of the Town of Tuxedo, Orange County (Shawn M. Brown, J.), rendered February 28, 2013. The judgments convicted defendant, upon jury verdicts, of driving while ability impaired, driving while intoxicated per se, unsafe lane change, failure to signal before turning, three charges of speeding (Vehicle and Traffic Law § 1180[b][one charge]; § 1180[d][two charges] ), and possession of an open container of an alcoholic beverage in a motor vehicle, respectively.

ORDERED that so much of the appeal as is from the judgments convicting defendant of unsafe lane change, failure to signal before turning, and speeding is dismissed as abandoned; and it is further,

ORDERED that the judgments convicting defendant of driving while ability impaired and driving while intoxicated per se are affirmed; and it is further,

ORDERED that the judgment convicting defendant of possession of an open container of an alcoholic beverage in a motor vehicle is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument charging that offense is dismissed, and the fine, if paid, is remitted.

Defendant was convicted, upon jury verdicts, of driving while ability impaired (Vehicle and Traffic Law § 1192[1]), driving while intoxicated per se (Vehicle and Traffic Law § 1192[2]), unsafe lane change (Vehicle and Traffic Law § 1128[a]), failure to signal before turning (Vehicle and Traffic Law § 1163[d]), three charges of speeding (Vehicle and Traffic Law § 1180[b][one charge]; § 1180[d][two charges] ), and possession of an open container of an alcoholic beverage in a motor vehicle (Vehicle and Traffic Law § 1227[1]), respectively.

The evidence adduced at trial showed that at approximately 2:00 a .m. on September 25, 2011, defendant was observed by a Town of Tuxedo police officer driving at a consistent speed of approximately 65 miles per hour on southbound Route 17, in areas where the speed limit was 35 and 45 miles per hour. The officer made a U-turn, followed defendant, and pulled him over. A Town of Tuxedo police sergeant, who also followed defendant, observed defendant's vehicle's left tires cross a double yellow line. Both the officer and the sergeant smelled an odor of alcohol on defendant's breath, and observed that he had bloodshot and watery eyes. His speech was slurred, and he was unsteady on his feet. Defendant failed several field sobriety tests. Defendant agreed to take a breath test, which was administered at 3:20 a.m. and determined that defendant's blood alcohol content was .15 of one per centum by weight. Defendant told the officer that he had had two or three beers at a party in Nyack, Rockland County, and that he was driving from Nyack to his home in West Haverstraw, both of which are in Rockland County. The officer noticed an unopened 24–ounce can of beer on the passenger seat of defendant's car, and subsequently an opened 24–ounce can of beer was found underneath the driver's seat. There was no testimony as to how much beer, if any, was in the opened can.

Defendant's claims regarding the legal sufficiency of the evidence supporting the convictions of driving while ability impaired and driving while intoxicated per se are unpreserved for appellate review, as he made only a general motion to dismiss at the close of the People's case and did not identify with specificity the insufficiency in the proof (see CPL 470.05 [2]; People v. Hawkins, 11 NY3d 484, 492 [2008]; People v. Gray, 86 N.Y.2d 10 [1995]; People v. Bustamante, 47 Misc.3d 139[A], 2015 N.Y. Slip Op 50595[U] [App Term, 9th & 10th Jud Dists 2015]; People v. Brown, 44 Misc.3d 129[A], 2014 N.Y. Slip Op 50984[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2014]; People v. Sykes, 31 Misc.3d 126[A], 2011 N.Y. Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In any event, pursuant to Vehicle and Traffic Law § 1192(1), a defendant is guilty of driving while ability impaired if the trial evidence establishes that "by voluntarily consuming alcohol [the] defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a...