| People v Dunster |
| 2017 NY Slip Op 00048 [146 AD3d 1029] |
| January 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael B. Dunster II, Appellant. |
John A. Cirando, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Madison County(McDermott, J.), rendered December 11, 2014, upon a verdict convicting defendant ofthe crime of driving while intoxicated.
On the morning of November 29, 2013, two City of Oneida police officers weredispatched to investigate a report of a vehicle found resting against a tree in a local park.When they arrived, the officers observed tire tracks in the snow leading from theroadway to the vehicle's resting place and no footprints in the area surrounding thevehicle. Upon approaching the vehicle, the officers found defendant asleep in the driver'sseat and the keys in the ignition. They knocked on the window for several minutes untilthey eventually roused defendant, who—upon observing theofficers—immediately took the keys out of the ignition and threw them over to thepassenger side of the vehicle. When defendant eventually complied with their requests toexit the vehicle, the officers detected a strong odor of alcohol and observed an open canof beer in the center console. Both officers also testified that defendant's eyes wereglassy, his speech was slurred and he was staggering and using the vehicle to maintainhis balance. Defendant refused to submit to field sobriety tests and an Alco-Sensor test,and was ultimately placed under arrest for driving while intoxicated.
Following a jury trial, defendant was convicted as charged of driving whileintoxicated as a felony (see Vehicle and Traffic Law §§ 1192[3]; 1193 [1] [c] [i]) and sentenced to a prison term of 1 to 3 years, with therecommendation that he be allowed to participate in the shock [*2]incarceration program. He appeals, arguing that hisconviction is not supported by legally sufficient evidence, that the verdict is contrary tothe weight of the evidence and that his sentence is unduly harsh and excessive.
Viewing the evidence in the light most favorable to the People, we find a valid lineof reasoning and permissible inferences from which a rational jury could concludebeyond a reasonable doubt that defendant was operating the motor vehicle in questionwhile he was in an intoxicated condition (see Vehicle and Traffic Law§ 1192 [3]; seegenerally People v Reed, 22 NY3d 530, 534 [2014]; People v Bleakley,69 NY2d 490, 495 [1987]). Defendant was found alone, asleep behind the wheel of a carthat had left the roadway, crossed over a basketball court and come to rest in an area notdesignated for parking. The keys were in the ignition, no footprints were observed in thesnow leading away from the vehicle and a single empty beer can was discovered in thevehicle. In our view, the established facts and the reasonable inferences to be drawntherefrom, in conjunction with the proof of defendant's impaired condition and refusal tosubmit to a chemical test, "point logically to [his] operation of the automobile whileintoxicated, even though there is no direct proof that he drove [the vehicle]" (Peoplev Blake, 5 NY2d 118, 120 [1958]; see People v Annis, 126 AD3d 1525, 1526 [2015]; People v Shaffer, 95 AD3d1365, 1366-1367 [2012]; People v Panek, 305 AD2d 1098, 1098 [2003],lv denied 100 NY2d 623 [2003]; People v Charland, 194 AD2d 827,827-828 [1993]; People v Saplin, 122 AD2d 498, 498-499 [1986], lvdenied 68 NY2d 817 [1986]). Further, evaluating the evidence in a neutral light andextending appropriate deference to the jury's resolution of credibility issues, we find thatthe verdict is also in accord with the weight of the evidence (see People v Annis,126 AD3d at 1526; People vHamm, 29 AD3d 1079, 1080-1081 [2006]; People v Ingram, 3 AD3d 791, 792-793 [2004]; Peoplev Panek, 305 AD2d at 1098).
Finally, we are unpersuaded by defendant's contention that his sentence was undulyharsh and excessive. Defendant has a lengthy criminal history, which includes a priordriving while intoxicated conviction and various other offenses resulting from hisalcohol problem. Several attempts at treatment have proved unsuccessful. County Courtacknowledged defendant's issues with alcohol and reasoned that a sentence in stateprison, as opposed to one in the local jail, would be more likely to assist in defendant'srehabilitation because he would have the opportunity to participate in the shockincarceration program in that venue. Under these circumstances, we find no abuse ofdiscretion or extraordinary circumstances warranting a modification of defendant'ssentence (see People vDonaldson, 46 AD3d 1109, 1110 [2007]; People v Hamm, 29 AD3d 1158, 1160 [2006], lvdenied 7 NY3d 848 [2006]; People v Arnold, 2 AD3d 975, 976-977 [2003], lvdenied 1 NY3d 594 [2004]).
Garry, Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.