| People v Brand |
| 2010 NY Slip Op 05094 [74 AD3d 1790] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Norbert F.Brand, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedDecember 5, 2007. The judgment convicted defendant, upon a jury verdict, of felony drivingwhile intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of felonydriving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c][former (ii)]) and aggravated unlicensed operation of a motor vehicle in the first degree (§511 [3]), defendant contends that County Court erred in refusing to suppress physical evidenceand his statements to the police. We reject that contention, although our reasoning differs fromthat of the court.
We agree with defendant that the court erred in concluding that the police officer whoforcibly detained him was justified in doing so because the officer had a reasonable suspicion tobelieve that defendant committed the offense of leaving the scene of a motor vehicle accidentinvolving property damage, a traffic infraction (see Vehicle and Traffic Law § 600[1]). Contrary to the further contention of defendant, however, we conclude that the officer didnot violate his constitutional rights by forcibly detaining him. "Where a police officer entertainsa reasonable suspicion that a particular person has committed, is committing or is about tocommit a felony or misdemeanor, . . . CPL [140.50 (1)] authorizes a forcible stopand detention of that person" (People v De Bour, 40 NY2d 210, 223 [1976]; see People v Moore, 6 NY3d 496,498-499 [2006]). Here, based on the information known to the officer when he initially detaineddefendant, we conclude that he had a reasonable suspicion to believe that defendant hadcommitted the crime of driving while intoxicated, which is either a misdemeanor or a felonydepending on the prior record of the defendant (see Vehicle and Traffic Law §1193 [1]).
The further contention of defendant that his statements to the police were not sufficientlycorroborated at trial is without merit (see People v Booden, 69 NY2d 185, 187-188[1987]; see generally CPL 60.50; People v Chico, 90 NY2d 585, 589-590[1997]; People v Daniels, 37 NY2d 624, 629 [1975]). The evidence, viewed in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), [*2]is legally sufficient to support the conviction (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). In addition, viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495).
The sentence is not unduly harsh or severe. We have considered defendant's remainingcontention and conclude that it is without merit. Present—Martoche, J.P., Smith, Centra,Sconiers and Pine, JJ.