| People v McCloskey |
| 2010 NY Slip Op 08757 [78 AD3d 1077] |
| November 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael McCloskey, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Michael Soffer, andChristina M. Lewicky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jaeger, J.),rendered December 12, 2008, convicting him of driving while intoxicated as a felony (twocounts), driving without adequate brakes, and driving without two license plates conspicuouslydisplayed, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the conviction of drivingwithout adequate brakes under count three of the indictment, vacating the sentence imposedthereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court determined his motion for a trialorder of dismissal with respect to count one of the indictment. Moreover, the Supreme Courtproperly denied that motion, as the People's evidence, which included testimony regarding thedefendant's blood-alcohol content, was clearly sufficient to establish that the defendant operateda motor vehicle while having more than .08 of one per centum by weight of alcohol in his blood(see Vehicle and Traffic Law § 1192 [2]; § 1194; see also People vCampbell, 73 NY2d 481, 484 [1989]; People v Hampe, 181 AD2d 238 [1992]).
With regard to count three of the indictment, driving without adequate brakes, thedefendant's general motion for a trial order of dismissal of this count did not preserve forappellate review his claim that the evidence was legally insufficient to show that he hadknowledge of the defective condition of his brakes, as "general motions simply do not createquestions of law" for an appellate court's review (People v Hawkins, 11 NY3d 484, 492[2008]; see People v Gray, 86 NY2d 10, 19 [1995]; CPL 470.05 [2]; People vKolupa, 13 NY3d 786 [2009]; People v Finger, 95 NY2d 894, 895 [2000];People v Soto, 8 AD3d 683, 684 [2004]). However, on appeal, the defendant correctlyargues that the verdict on that count of the indictment was against the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]). While the Peopleadduced adequate evidence to establish that the brakes were inadequate, they did not proffersufficient evidence to establish that the defendant knew that the brakes were not adequate whilehe was operating his vehicle on a public highway (see Vehicle and Traffic Law §375 [1]; People v Troiano, 146 Misc 2d 770 [1990]; see also Schaeffer v Caldwell,273 [*2]App Div 263 [1948]). Therefore, the convictionunder count three of the indictment must be vacated and that count of the indictment dismissed.Skelos, J.P., Eng, Belen and Hall, JJ., concur.