| People v Warner |
| 2007 NY Slip Op 09446 [45 AD3d 1182] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rita L.Warner, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chenango County (Sullivan, J.),rendered September 25, 2006, upon a verdict convicting defendant of the crime of driving whileintoxicated.
After a jury trial, defendant was convicted of one count of driving while intoxicated. Thearresting police officer testified that he had stopped her vehicle after observing it traveling onState Route 12 with a loud muffler and repeatedly crossing over the highway's lane markings. Herelated that, during questioning at the scene, she smelled of alcohol, she was belligerent andargumentative, she admitted having consumed four alcoholic beverages and she failed ahorizontal gaze nystagmus (hereinafter HGN) test. On her appeal, defendant argues that herconviction was against the weight of the evidence because there are significant conflicts betweenher testimony and that of the arresting officer. She also contends that the arresting officer'stestimony as to the HGN test should have been accorded little weight because no evidence waspresented as to his experience in administering it. However, the People laid a proper foundationthrough the evidence of the officer's qualifications to administer the HGN test (see People v Hammond, 35 AD3d905, 907 [2006], lv denied 8 NY3d 946 [2007]), and defendant chose not to inquireon cross-examination as to the extent of his experience. Giving due deference to the jury'sopportunity to observe witness demeanor and make credibility determinations as to conflictingtestimony, we are satisfied that defendant's conviction is not against the weight of the [*2]evidence (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Neil, 30 AD3d 901, 901-902 [2006], lv denied 7NY3d 869 [2006]).
Defendant also argues that the prosecutor made certain remarks during summation thatdenied her a fair trial, including that the arresting officer had no financial motive for arresting herand her behavior was that of "an angry drunk." This issue of the propriety of the prosecutor'scomments is unpreserved due to defendant's failure to timely object (see People v Valderama, 25 AD3d819, 821 [2006], lv denied 6 NY3d 854 [2006]). In any event, the prosecutor'sstatements amounted to fair comment given defendant's specific challenges to both the credibilityof the arresting officer and his description of her behavior (see e.g. People v Beyer, 21 AD3d 592, 595[2005], lv denied 6 NY3d 752 [2005]).
Finally, defendant's contention that the People failed to establish that State Route 12 was apublic highway is without merit, and the challenge to venue is unpreserved.
Cardona, P.J., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the County Court of Chenango County for further proceedingspursuant to CPL 460.50 (5).