| People v Velasquez |
| 2009 NY Slip Op 06714 [65 AD3d 1266] |
| September 22, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Concepcion Velasquez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason P.Weinstein of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Brown, J.),rendered October 22, 2007, convicting him of driving while intoxicated, driving while abilityimpaired, and driving without a license, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's assertion, the defendant's legal sufficiency claim was preserved forappellate review (see CPL 470.05 [2]). However, there is no merit to the defendant'scontention that the evidence was legally insufficient to prove, beyond a reasonable doubt, theelement of intoxication. Moreover, upon our independent review pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). "The crime of driving while intoxicated requires a showing that the defendant'is incapable of employing the physical and mental abilities which he is expected to possess inorder to operate a vehicle as a reasonable and prudent driver' " (People v McNamara, 269AD2d 544, 545 [2000], quoting People v Cruz, 48 NY2d 419, 428 [1979]). Here, thethree police witnesses, the arresting officers and the officer who administered the breathalyzertest, all testified that, on the morning of November 12, 2005, the defendant had glassy, bloodshoteyes, slurred speech, and an odor of alcohol on his breath, staggered when he walked, and wasunable to perform parts of the field sobriety test. Additionally, the arresting officers testified thatthe defendant admitted to being drunk, and the defendant himself testified that he had consumedapproximately five 12-ounce bottles of beer at a bar. This was sufficient to prove, beyond areasonable doubt, that the defendant was intoxicated for purposes of Vehicle and Traffic Law§ 1192 (3) at the time of his arrest (see People v Scroger, 35 AD3d 1218, 1219 [2006]; People v Silvestri, 34 AD3d 986[2006]; People v Hamm, 29 AD3d1079, 1080 [2006]; People vLundell, 24 AD3d 569, 570 [2005]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Spolzino, J.P., Miller, Angiolillo and Dickerson, JJ., concur.