People v. Kinnear
| Decision Date | 12 November 2010 |
| Citation | 910 N.Y.S.2d 731,78 A.D.3d 1593 |
| Parties | The People of the State of New York, Respondent, v. Lloyd KINNEAR, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgmentof the Ontario County Court (Stephen R. Sirkin, A.J.), rendered June 5, 2009. The judgment convicted defendant, upon a nonjury verdict, of driving while intoxicated, a class E felony (two counts).
Fiandach & Fiandach, Rochester (Terence McCarty of Counsel), for defendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Neal P. Mcclelland of Counsel), for respondent.
Defendant appeals from a judgment convicting him following a nonjury trial of two counts of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192[2], [3]; § 1193[1][c] [former (i) ] ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish that he previously had been convicted of driving while intoxicated, and thus that the judgment must be modified to reduce the conviction to two counts of driving while intoxicated as a misdemeanor ( see CPL 470.05[2]; cf. People v. Vollick, 148 A.D.2d 950, 539 N.Y.S.2d 187, affd. 75 N.Y.2d 877, 554 N.Y.S.2d 473, 553 N.E.2d 1021). In any event, we reject that contention. The certificate of conviction that was admitted in evidence identified defendant by name and date of birth and was corroborated by evidence of the date of birth reflected on his driver's license."Thus, the People established that defendant was the person previously convicted of driving while intoxicated" ( People v. Petrianni, 24 A.D.3d 1224, 1225, 806 N.Y.S.2d 835; see People v. Switzer, 55 A.D.3d 1394, 1395, 865 N.Y.S.2d 457, lv. denied 11 N.Y.3d 858, 872 N.Y.S.2d 81, 900 N.E.2d 564).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
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