Opinion
No. 2013–1129 S CR.
05-19-2015
The PEOPLE of the State of New York, Respondent, v. Michael V. BIONDO, Appellant.
Opinion
Appeal from judgments of the District Court of Suffolk County, First District (Steven A. Lotto, J.), rendered April 18, 2013. The judgments convicted defendant, upon jury verdicts, of aggravated driving while intoxicated and common law driving while intoxicated, respectively.
ORDERED that the judgments of conviction are affirmed.
In separate accusatory instruments, defendant was charged with aggravated driving while intoxicated (Vehicle and Traffic Law § 1192[2–a][a] ) and common law driving while intoxicated (Vehicle and Traffic Law § 1192[3] ), respectively. Following a jury trial, defendant was convicted of both charges.
On appeal, defendant contends that the evidence was legally insufficient to establish his guilt of the charges beyond a reasonable doubt, because the People failed to establish that he operated the vehicle; and that the evidence was legally insufficient to establish his guilt of aggravated driving while intoxicated beyond a reasonable doubt, because the People did not establish that the breathalyzer test result of .18 of one per centum by weight of alcohol in his blood was not affected by mouth alcohol that was produced by a “silent burp.” Defendant also argues that the verdicts were against the weight of the evidence.
Defendant's contentions with respect to legal sufficiency are unpreserved for appellate review since he failed to raise these issue at trial (see CPL 470.05[2] ; People v. Hawkins, 11 NY3d 484, 491–492 [2008] ; People v. Hines, 97 N.Y.2d 56, 61 [2001] ; People v. Gray, 86 N.Y.2d 10 [1995] ). In any event, upon a review of the evidence adduced at trial, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621 [1983] ), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of aggravated driving while intoxicated and common law driving while intoxicated.
For a defendant to be found guilty of violating Vehicle and Traffic Law § 1192, the People must establish, beyond a reasonable doubt, that he operated a motor vehicle while in an intoxicated condition. However, “there is no requirement that the defendant be observed driving the vehicle; instead, operation of a vehicle can be proven by circumstantial evidence” (People v. Salerno, 36 Misc.3d 151[A], 2012 N.Y. Slip Op 51699[U], *2 [App Term, 9th & 10th Jud Dists 2012]; see also People v. Blake, 5 N.Y.2d 118, 120 [1958] ; People v. Atkinson, 42 Misc.3d 139[A], 2014 N.Y. Slip Op 50169[U] [App Term, 9th & 10th Jud Dists 2014] ). “It is well established that the term operate' as used in the Vehicle and Traffic Law is broader than the term drive' (Matter of Prudhomme v. Hults, 27 A.D.2d 234, 236 )” (People v. Dalton, 176 Misc.2d 211, 213 [App Term, 2d & 11th Jud Dists 1998] ). The Criminal Jury Instructions for Vehicle and Traffic Law § 1192 “state that [o]peration of a motor vehicle is established upon proof beyond a reasonable doubt that the defendant had recently driven the vehicle” (People v. Dalton, 176 Misc.2d at 213 [citations and internal quotation marks omitted] ). The arresting officer testified that, after he arrived at the scene of the accident, he observed defendant standing next to a vehicle which had struck a light pole. The officer asked defendant what had happened, and defendant told him that the vehicle was his and stated that “I was going 39, 40 [miles per hour].” The foregoing evidence was sufficient to establish that defendant operated the vehicle “even though there was no direct proof that he drove [his vehicle]” (People v. Blake, 5 N.Y.2d at 120 ; see also People v. Salerno, 36 Misc.3d 151[A], 2012 N.Y. Slip Op 51699[U] ; People v. Atkinson, 42 Misc.3d 139[A], 2014 N.Y. Slip Op 50169[U] ).
In regard to the aggravated driving while intoxicated charge, defendant argues that the People failed to show that the breathalyzer test result was not affected by mouth alcohol because the breath test operator failed to ask him if he had made a “silent burp” (which can produce mouth alcohol) while he blew into the breathalyzer device. The police officers, however, testified that if a breath sample contains mouth alcohol, the breathalyzer device would not test the sample and would provide a printout stating “invalid sample.” Consequently, defendant's “silent burp” argument lacks merit.
Furthermore, upon the exercise of our factual review power (see CPL 470.15 [5 ]; People v. Danielson, 9 NY3d 342, 348–349 [2007] ), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Mateo, 2 NY3d 383, 410 [2004] ; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ), we find that the verdicts were not against the weight of the evidence (see People v. Romero, 7 NY3d 633 [2006] ).
Accordingly, the judgments of conviction are affirmed.
GARGUILO, J.P., MARANO and CONNOLLY, JJ., concur.