| People v Tuszynski |
| 2014 NY Slip Op 06421 [120 AD3d 1568] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDean Tuszynski, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered June 1, 2011. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class D felony, aggravated unlicensed operation of a motorvehicle in the first degree and leaving the scene of an incident without reporting.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, driving while intoxicated as a class D felony (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [ii]) and aggravated unlicensed operation ofa motor vehicle in the first degree (§ 511 [3] [a] [i]), defendant contendsthat the verdict with respect to those counts is contrary to the weight of the evidence withrespect to the issue of intoxication. We reject that contention.
We note at the outset that the conviction of aggravated unlicensed operation of amotor vehicle in the first degree does not require proof of intoxication, and we thus rejectdefendant's contention with respect to that crime. Unlike the driving while intoxicatedcount, which requires proof that defendant was intoxicated (see Vehicle andTraffic Law § 1192 [3]), the aggravated unlicensed operation of a motorvehicle in the first degree count may be sustained upon proof that defendant was drivingwhile his ability to operate a motor vehicle was impaired pursuant to Vehicle and TrafficLaw § 1192 (1) (see People v Gelster, 256 AD2d 1133, 1133[1998]; see e.g. People vKaminski, 109 AD3d 1186, 1186 [2013], lv denied 22 NY3d 1088[2014]; People v DeCarlis,37 AD3d 1040, 1040 [2007], lv denied 8 NY3d 945 [2007]), and it is wellsettled that a " '[c]onviction of [that] offense [does] not require proof ofintoxication, but only [requires proof] that defendant's driving ability was impaired toany extent' " by the consumption of alcohol (People v McDonald, 27 AD3d 949, 950 [2006]). Here,defendant concedes in his brief that the weight of the evidence supports a finding that hisdriving ability was impaired by his consumption of alcohol.
In any event, we conclude that the verdict is not against the weight of the evidenceon the issue of intoxication. "Where, as here, witness credibility is of paramountimportance to the determination of guilt or innocence, we must give great deference tothe jury, given its opportunity to view the witnesses and observe their demeanor" (People v Streeter, 118 AD3d1287, 1288 [2014] [internal quotation marks omitted]; see People v Roman, 107AD3d 1441, 1442-1443 [2013], lv denied 21 NY3d 1045 [2013]; People v Scott, 107 AD3d1635, 1636 [2013], lv denied 21 NY3d 1077 [2013]). "Viewing the evidencein a neutral light and weighing the probative value of the conflicting testimony and theconflicting inferences that could be drawn, while deferring to the jurors' ability toobserve the witnesses and assess their credibility, aided by the video recording, we findthat it was not contrary to the weight of the credible evidence for the jury to find thatdefendant" was intoxicated (People v Purvis, 90 AD3d 1339, 1341 [2011], lvdenied 18 NY3d 997 [2012]; see generally People v Bleakley, 69 NY2d 490,495 [1987]).
[*2] Defendant further contendsthat the persistent felony offender statutory scheme is unconstitutional in light of the rulein Apprendi v New Jersey (530 US 466 [2000]). To the contrary, it is well settledthat Penal Law § 70.10 and CPL 400.20 are constitutional (see People v Battles, 16 NY3d54, 59 [2010], cert denied 565 US &mdash, 132 S Ct 123 [2011]; People v Quinones, 12 NY3d116, 122-131 [2009], cert denied 558 US 821 [2009]). Finally, the sentenceis not unduly harsh or severe. Present—Smith, J.P., Fahey, Lindley, Whalen andDeJoseph, JJ.