Opinion
July 7, 1988
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Dillon, P.J., Doerr, Denman, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Following a nonjury trial, defendant was convicted of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). On appeal, he claims that the trial court erred by considering the manner in which the accident occurred in arriving at the factual determination that he was intoxicated and not merely impaired. We disagree. The distinction between driving while impaired and driving while intoxicated is one of degree. "[I]ntoxication is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v. Cruz, 48 N.Y.2d 419, 428). In deciding the extent of a driver's inability to operate a vehicle safely, the fact finder may consider the testimony of a police officer regarding the manner in which an accident occurred or the officer's observations of the driver's operation of the vehicle (People v. Le Beau, 134 A.D.2d 929; People v. Ottomanelli, 107 A.D.2d 212, 217, lv denied 66 N.Y.2d 617). We conclude upon our independent review of the record that the People's proof was legally sufficient to support the conviction for driving while intoxicated and that the factual determination was not contrary to the weight of evidence.
The court did not err by admitting evidence of oral statements made by the defendant prior to any Miranda warnings. The statements were made in response to investigatory questions at the scene of an accident and defendant was not in custody (People v. Palmiere, 124 A.D.2d 1016). Aside from the Miranda issue, defendant raised no question regarding the voluntariness of these statements and thus we conclude that a CPL 710.30 notice was not required (People v. Balschweit, 91 A.D.2d 1127; People v Christopher S., 126 Misc.2d 594).