| People v Gonzalez |
| 2011 NY Slip Op 09730 [90 AD3d 1668] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Luis A.Gonzalez, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedSeptember 22, 2006. The judgment convicted defendant, upon a jury verdict, of driving whileintoxicated and driving while ability impaired by drugs and, upon a nonjury verdict, ofaggravated unlicensed operation of a motor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofdriving while intoxicated ([DWI] Vehicle and Traffic Law § 1192 [3]) and driving whileability impaired by drugs ([DWAI] § 1192 [4]), and convicting him, pursuant to a"stipulation," of aggravated unlicensed operation of a motor vehicle in the first degree (§511 [3] [a]). According to the evidence presented at trial, two police officers in separate patrolcars observed defendant operating a motor vehicle while talking on his cellular telephone. Theyfurther observed that he was not wearing his seatbelt, and was improperly driving down themiddle of the roadway. When the officers stopped defendant's vehicle, defendant pulled into aprivate driveway and, in the process of doing so, he struck the curb, drove onto the lawn, andfailed to use his turn signal. Defendant then exited the vehicle but was ordered back into thevehicle. He had trouble re-entering the vehicle, and stated that he was in a lot of pain. Theofficers detected the odor of alcohol and noticed that defendant's eyes were bloodshot and glassyand that his speech was slurred. Defendant admitted that, approximately one hour prior to thetraffic stop, he drank one beer and took two Vicodin, which were prescribed to him for pain.Defendant submitted to several field sobriety tests, which led the officers to conclude that he wasintoxicated by alcohol or impaired by drugs. Defendant was arrested and refused to submit to abreathalyzer test or a blood test.
Defendant contends on appeal that the evidence at trial established only that he was allegedlyimpaired by the combined effects of alcohol and Vicodin, and that the convictions ofDWI and DWAI must be reversed because the People failed to present the requisite evidence ofimpairment by each of the substances separately. We reject that contention, inasmuch as theevidence presented at trial is sufficient to establish that he was separately impaired by alcoholand by drugs.[*2]
A conviction of DWI under Vehicle and Traffic Law§ 1192 (3) may be based upon "evidence that [a defendant] failed all his field sobrietytests, smelled of alcohol, had glassy eyes and slurred his speech" (People v Scroger, 35 AD3d 1218[2006], lv denied 8 NY3d 950 [2007]). Here, the officers found that defendant exhibitedall of those traits when he was pulled over. We thus conclude that the evidence is legallysufficient to support the DWI conviction, exclusive of the evidence presented in support of theDWAI conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
With respect to the DWAI conviction, the jury had to find that defendant ingested a druglisted in Public Health Law § 3306, that defendant operated a motor vehicle, and that hisability to operate the motor vehicle was impaired by the drug (see Vehicle and TrafficLaw §§ 114-a, 1192 [4]). Here, defendant admitted to the officers during the trafficstop and he testified at trial that, approximately one hour prior to the traffic stop, he ingested twoVicodin. A pharmacist testified for the People that Vicodin is also known as hydrocodone, andwe note that hydrocodone is a drug listed in Public Health Law § 3306 (Schedule II [b] [1][10]). The pharmacist further explained that Vicodin, "or hydrocodone," is a central nervoussystem depressant. We thus conclude that the evidence, i.e., the testimony of the arrestingofficers regarding defendant's actions during the traffic stop, defendant's admission that he tookthe Vicodin, and the testimony of the pharmacist, is legally sufficient to support the DWAIconviction, exclusive of the evidence presented in support of the DWI conviction (seegenerally Bleakley, 69 NY2d at 495).
Finally, defendant's challenge to the severity of the sentence is equally without merit,particularly in view of his prior DWI convictions. Present—Scudder, P.J., Centra, Carni,Lindley and Martoche, JJ.