| People v Cooley |
| 2010 NY Slip Op 00316 [69 AD3d 1058] |
| January 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Carol Cooley,Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Franklin County (Rogers, J.),rendered June 17, 2008, upon a verdict convicting defendant of the crime of driving whileintoxicated (two counts) and the traffic violation of improper display of a license plate.
Defendant's sole contention on appeal from her conviction of two counts of felony drivingwhile intoxicated and a traffic violation is that County Court was required, but failed, to give thejury a circumstantial evidence instruction. This issue is not preserved for our review, however,because the defense neither requested such a charge nor objected to its omission from the juryinstructions (see People v Ryan, 46AD3d 1125, 1127-1128 [2007], lv denied 10 NY3d 939 [2008]; People v Stanton, 21 AD3d 576,577 [2005]; People v Wallace, 8AD3d 753, 756 [2004], lv denied 3 NY3d 682 [2004]; see also CPL 470.05[2]). Even if we were to consider it, the testimony that defendant had admitted that she was goingtoo fast around a corner before her vehicle left the road and rolled over constituted directevidence of her operation of the vehicle (see People v Casper, 42 AD3d 887, 888 [2007], lv denied9 NY3d 990 [2007]). In any event, a circumstantial evidence charge must be given only whereall the evidence presented as to every element of the criminal charge is circumstantial, and herethere was direct evidence of the element of intoxication (see People v Daddona, 81NY2d 990, 992 [1993]; People vAllen, 1 AD3d 947, 948 [2003], lv denied 1 NY3d 594 [2004]; People vStruss, 228 AD2d 711, 714 [1996], lv denied 89 NY2d 867 [1996]).[*2]
Peters, J.P., Malone Jr., Stein and McCarthy, JJ., concur.Ordered that the judgment is affirmed.