| People v Owens |
| 2007 NY Slip Op 08795 [45 AD3d 1058] |
| November 15, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Keith Owens,Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie Mitzner of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Sullivan County (Ledina, J.),rendered October 11, 2005, convicting defendant following a nonjury trial of the crimes ofdriving while intoxicated and aggravated unlicensed operation of a motor vehicle in the thirddegree.
Defendant, whose driver's license was suspended, was in a roll-over accident after driving apick-up truck off a straight, dry road. Law enforcement personnel who responded to the scenenoted the smell of alcohol, nystagmus eyes, slurred speech and other signs that resulted in theirconclusion that defendant had been operating the vehicle while intoxicated. An effort to obtain ablood sample was unsuccessful because of defendant's physical condition. He nevertheless waseventually charged with driving while intoxicated as well as aggravated unlicensed operation of amotor vehicle. Defendant waived his right to a jury trial and, following a nonjury trial, he wasfound guilty of both counts. County Court sentenced him to six months in jail and five years ofprobation. Defendant appeals.
Defendant contends that his conviction for driving while intoxicated was not supported bylegally sufficient evidence and was against the weight of the evidence. When considering achallenge to the legal sufficiency of the evidence, we view the evidence in the light mostfavorable to the People and will not disturb the verdict if the evidence demonstrates a valid line[*2]of reasoning and permissible inferences that could lead arational person to the conclusion reached by the trier of fact (see People v Bleakley, 69NY2d 490, 495 [1987]; People vSilvestri, 34 AD3d 986, 987 [2006]). Here, the evidence included, among other things,testimony from law enforcement and emergency response personnel that defendant smelled ofalcohol, had slurred speech, and his eyes were glassy and jumpy. He had driven off a straight, dryroad, leaving no skid marks. After being advised of his Miranda rights, defendantacknowledged to a police officer that he had consumed six beers prior to the accident. Theevidence was legally sufficient to support the conviction. Further, after viewing all the evidencein a neutral light, weighing the relative probative force of the conflicting proof, and accordingdue deference to the credibility determinations of the factfinder, we are unpersuaded that theverdict was against the weight of the evidence (see People v Neil, 30 AD3d 901, 902 [2006], lv denied 7NY3d 869 [2006]; People v Gallup, 302 AD2d 681, 683 [2003], lv denied 100NY2d 594 [2003]).
Next, we consider defendant's argument that he was deprived of a fair trial by prosecutorialmisconduct. He asserts that the prosecutor strayed beyond the limits of County Court'sSandoval ruling and also inappropriately suggested on summation that defendant shouldhave come forward with an explanation for the accident. County Court sustained defendant'sobjection to a question to his witness asking about defendant's prior conviction and, as todefendant's objection about the prosecutor's summation, County Court made clear that "thedefense has no burden, whatsoever, to come forward with any evidence." In this nonjury trial,defendant was not prejudiced by the purported errors since the court used appropriate legalcriteria and disregarded any matters incorrectly interjected by the prosecutor (see People vMoreno, 70 NY2d 403, 406 [1987]; People v Kolon, 37 AD3d 340, 342 [2007], lv denied 8NY3d 947 [2007]).
Lastly, most of the errors that defendant ascribes to his counsel fall within the realm ofstrategy decisions (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Murray, 7 AD3d 828,831 [2004], lv denied 3 NY3d 679 [2004]), and, in any event, review of the recordreveals that defendant received meaningful representation (see People v Caban, 5 NY3d 143, 152 [2005]).
Cardona, P.J., Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment isaffirmed.