| People v Westcott |
| 2011 NY Slip Op 03925 [84 AD3d 1510] |
| May 12, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric D.Westcott Jr., Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Elizabeth M. Healy of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered January 11, 2010, upon a verdict convicting defendant of the crimes of aggravateddriving while intoxicated and driving while intoxicated.
During the early morning hours of February 13, 2009, State Troopers Justin Lowe and DanielWyant were on patrol on the New York State Thruway in Madison County when they observed avehicle parked on the shoulder of the opposing lanes. After making a U-turn and pulling upbehind this vehicle, Lowe and Wyant approached it and observed three occupantsinside—two men in the front seat and a female in the rear passenger seat. Loweapproached the driver's side of the vehicle and found defendant sitting behind the wheel,emanating a strong odor of alcohol. The engine was running and the keys were in the ignition.Lowe asked defendant to exit the vehicle and observed that he did so very slowly, using thevehicle's door for assistance, and that he had trouble maintaining his balance. Lowe requestedthat defendant submit to field sobriety tests, which defendant refused. Based on his observations,Lowe concluded that defendant was intoxicated and placed him under arrest for driving whileintoxicated.
After his arrest and transport to State Police barracks, defendant submitted to a breathalyzertest, which revealed that his blood alcohol content was .22%. A grand jury subsequently indicteddefendant for aggravated unlicensed operation of a motor vehicle in the [*2]first degree, aggravated driving while intoxicated and driving whileintoxicated. The People also filed a special information that accused defendant of knowing thathis license had previously been suspended or revoked for refusing to submit to a chemical teststemming from a previous incident. Following a jury trial, defendant was convicted of aggravateddriving while intoxicated and driving while intoxicated.[FN1]Defendant then moved to set aside the verdict pursuant to CPL 330.30, which motion CountyCourt denied. Defendant was thereafter sentenced to three years of probation, with the impositionof a $1,000 fine and certain other surcharges. Defendant now appeals.
Initially, we reject defendant's claim that the convictions were against the weight of theevidence. Inasmuch as a different verdict would not have been unreasonable, we "must, like thetrier of fact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Dixon, 62 AD3d 1036,1038 [2009], lv denied 12 NY3d 914 [2009] [internal quotation marks and citationsomitted]; see People v Baltes, 75AD3d 656, 658 [2010], lv denied 15 NY3d 918 [2010]; People v Johnson, 70 AD3d 1188,1189-1190 [2010]). Our weight of the evidence review "is not limited to a determination ofcredibility issues; rather, we 'must [also] consider the elements of the crime, for even if theprosecution's witnesses were credible their testimony must prove the elements of the crimebeyond a reasonable doubt' " (People v Dixon, 62 AD3d at 1038, quoting People v Danielson, 9 NY3d 342,349 [2007]; see People v Hayden,60 AD3d 1155, 1156 [2009], lv denied 12 NY3d 854 [2009]).
Here, defendant conceded that he was sitting in the driver's seat when the Troopersapproached the vehicle and that he was intoxicated, but denied that he ever drove the vehicle andthat, in any event, it had sustained accident damage that rendered the vehicle inoperable. As such,the only contested element of either offense consisted of defendant's purported operation of thevehicle (see Vehicle and Traffic Law § 1192 [2-a], [3]). In grand jury testimonyread to the jury,[FN2]defendant testified that during the early morning hours of February 13, 2009, Zach Duffy wasdriving defendant and Sonnet White, a female friend, home from a nightclub in defendant'sautomobile when, upon entering the Thruway, they struck a guardrail, damaging the car.Defendant testified that they continued for a distance and then pulled over. According todefendant, as the Troopers pulled up, Duffy hopped into the backseat and he jumped into thedriver's seat. White testified at trial that both men were in the front seat—with Duffyinitially in the driver's seat and defendant on the passenger's side—but switched sidesseconds before the Troopers approached. Lowe testified that, upon approaching defendant'srunning vehicle, he observed defendant sitting in the driver's seat, wearing a seatbelt. Finally,defendant's brother, an auto mechanic, testified that it was his opinion, based on a visualinspection conducted after defendant's arrest, that defendant's vehicle was inoperable due to theaccident damage.
"[T]he term 'operate' as used in the Vehicle and Traffic Law is broader than the term[*3]'drive' and extends to a situation where a motorist begins to engagethe motor for the purpose of putting the vehicle into motion" (People v Totman, 208AD2d 970, 971 [1994] [citation omitted]; accord People v Beyer, 21 AD3d 592, 594 [2005], lvdenied 6 NY3d 752 [2005]). Mindful of this principle and the fact that there is norequirement that a vehicle be in actual motion for a vehicle to be in "operation" (People vPrescott, 95 NY2d 655, 662 [2001]), which can be established by evidence that an"individual was merely behind the wheel with the engine running" (People v David W.,83 AD2d 690, 690 [1981]; see People v Alamo, 34 NY2d 453, 458 [1974]), we find noreason to disturb the jury's credibility determination with respect to defendant's position in thevehicle or its operability.
Finally, as no objection was made at the time of trial with respect to defendant's remainingcontention—that he was prejudiced because the procedures employed in CPL 200.60 werenot followed—this challenge has not been preserved for appellate review, and we declineto exercise our interest of justice jurisdiction (see CPL 470.05 [2]; 470.15 [6] [a]; People v Dickinson, 78 AD3d1237, 1239 [2010]; People v Reid, 232 AD2d 173, 174 [1996], lv denied 90NY2d 862 [1997]).
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: At the close of the People's case,County Court granted defendant's motion to dismiss the charge of aggravated unlicensedoperation of a motor vehicle.
Footnote 2: Defendant did not testify at trial,but stipulated that his testimony before the grand jury be read to the trial jury.