| People v Johnson |
| 2016 NY Slip Op 04730 [140 AD3d 978] |
| June 15, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Johnson, Appellant. |
Del Atwell, East Hampton, NY, for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Efman, J.), rendered January 10, 2012, convicting him of driving while intoxicated inviolation of Vehicle and Traffic Law § 1192 (3), aggravated unlicensedoperation of a motor vehicle in the first degree, and operating a motor vehicle without avalid driver license, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Kahn, J.), of that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials, made on the groundthat the police officers did not have probable cause to arrest him for driving whileintoxicated in violation of Vehicle and Traffic Law § 1192 (3). Contrary tothe defendant's contention, the testimony of the arresting officer that he observed thedefendant in a visibly intoxicated condition, seated behind the wheel of the vehicle withthe engine running and the transmission in drive, was sufficient to provide probablecause to arrest the defendant for driving while intoxicated (see People v Farnsworth, 134AD3d 1302 [2015]; Peoplev Bolta, 96 AD3d 773 [2012]). There is no requirement that a vehicle actuallybe in motion for it to be in operation (see People v Prescott, 95 NY2d 655[2001]; People v Westcott,84 AD3d 1510 [2011]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of driving while intoxicated beyond a reasonable doubt (see Peoplev Prescott, 95 NY2d 655 [2001]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt as tothat crime was not against the weight of [*2]the evidence(see People v Romero, 7NY3d 633 [2006]). Mastro, J.P., Sgroi, Duffy and Brathwaite Nelson, JJ.,concur.