| People v Franco |
| 2014 NY Slip Op 00772 [114 AD3d 1152] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PaulL. Franco, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen K. Lindley,J.), rendered January 4, 2010. The judgment convicted defendant, upon a nonjury verdict,of driving while intoxicated, a class E felony.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof felony driving while intoxicated (Vehicle and Traffic Law §§ 1192 [3];1193 [1] [c] [i]), defendant contends that the verdict is against the weight of theevidence. We reject that contention. Viewing the evidence in light of the elements of thecrime in this nonjury trial (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict isnot against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The sole witness at trial was the State Trooper who stoppeddefendant's vehicle after observing defendant's reckless driving. He testified that hecould smell the odor of alcohol on defendant's breath, defendant's eyes were bloodshot,glassy, and watery, and defendant periodically mumbled as he spoke, even though he wasgenerally understandable. The Trooper further testified that he administered six fieldsobriety tests, all but one of which defendant failed. Finally, there is "a record basis toshow that, through words or actions, defendant declined to take a chemical test despitehaving been clearly warned of the consequences of refusal," and such refusal isadmissible as consciousness of guilt (People v Smith, 18 NY3d 544, 551 [2012]; see People v McGraw, 57AD3d 1516, 1517 [2008]; People v Gallup, 302 AD2d 681, 683 [2003],lv denied 100 NY2d 594 [2003]; see generally § 1194 [2] [f]). Weconclude that Supreme Court did not fail to give the evidence the weight it should beaccorded, and thus the verdict is not against the weight of the evidence (seeMcGraw, 57 AD3d at 1517; see generally Bleakley, 69 NY2d at 495).Present—Scudder, P.J., Fahey, Peradotto, Carni and Valentino, JJ.