| People v Barger |
| 2010 NY Slip Op 08954 [78 AD3d 1191] |
| November 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronald Barger, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and AndrewR. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.),rendered July 10, 2007, convicting him of driving while intoxicated, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly admitted at trial evidenceof the defendant's refusal to submit to a blood alcohol test, since there was sufficient evidencebefore the County Court to support the conclusion that the defendant was twice given clear andunequivocal warnings of the effect of his refusal to submit to the blood alcohol test, and that hepersisted in his refusal to take it (see Vehicle and Traffic Law § 1194 [2] [f];People v Gangale, 249 AD2d 413 [1998]). The defendant's contention that the secondwarning was given more than two hours after his arrest and that, therefore, it negates hispersistent refusal to submit to the blood alcohol test, is without merit (see People vAtkins, 85 NY2d 1007, 1009 [1995]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero, 7 NY3d 633 [2006]; People v Lundell, 24AD3d 569 [2005]; People v Gangale, 249 AD2d 413 [1998]). Specifically, the Peoplepresented sufficient evidence of the defendant's intoxication, including, inter alia, testimony thatthe defendant was speeding, crossed over into an oncoming lane of traffic, and crashed into aparked vehicle; the defendant admitted that he drank alcohol before the accident; the defendantand his vehicle smelled of alcohol after the accident; and there were open beer bottles in thedefendant's vehicle (see People v Shank, 26 AD3d 812 [2006]; People v Kane,240 AD2d 516 [1997]; People v Bowers, 201 AD2d 830 [1994]). Rivera, J.P., Florio,Belen and Austin, JJ., concur.