Opinion
No. 2013–239QCR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Franklin ESCOTO, Appellant.
Opinion
ORDERED that the judgment of conviction is affirmed.
Defendant was charged, in a single accusatory instrument, with common-law driving while intoxicated (Vehicle and Traffic Law § 11923 ), driving while intoxicated per se (Vehicle and Traffic Law § 11922 ) and aggravated driving while intoxicated per se (Vehicle and Traffic Law § 11922–a[a] ).
The owner of a Honda minivan testified at a jury trial that, at approximately 8:00 a.m. on Saturday, November 19, 2011, he was inside his vehicle, which was parked on Hampton Street in Queens, when the driver's door was struck and damaged by a black two-door Infiniti sports car. The owner of the Honda chased the Infiniti on foot to the end of the block, where it double-parked. The owner of the Honda testified that defendant, who appeared to be drunk, exited from the driver's door of the Infiniti. Defendant was arrested. An Intoxilyzer test indicated that defendant's blood alcohol content was .213 of one percentum by weight. Defendant's friend, who claimed that he was not drunk, testified that he, in fact, had been driving the Infiniti, rather than defendant. Following the trial, the jury found defendant guilty of all three charges.
Viewing the evidence in the light most favorable to the prosecution (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 common-law driving while intoxicated, driving while intoxicated per se, and aggravated driving while intoxicated per se. The People presented evidence establishing that defendant's blood alcohol content was .213 of one percentum by weight (see People v. Lont, 34 Misc.3d 142[A], 2012 N.Y. Slip Op 50088 [U] [App Term, 2d, 11th & 13th Jud Dists 2012]; see also People v. Colburn, 123 A.D.3d 1292, 1293 2014; People v. Ingram, 3 A.D.3d 791, 792 2004 ). The owner of the Honda that was struck by the Infiniti unequivocally testified that it was defendant who had exited the driver's door of the Infiniti. Moreover, both the owner of the Honda and the arresting officer testified that defendant reeked of alcohol and had watery eyes (see People v. Ortiz, 34 Misc.3d 142 [A], 2012 N.Y. Slip Op 50086[U] [App Term, 9th & 10th Jud Dists 2012]; see also People v. Thornton, 87 A.D.3d 663, 664 2011; People v. Maricevic, 52 A.D.3d 1043, 1044–1045 2008 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.155; People v. Danielson, 9 N.Y.3d 342, 348–349 2007 ), we accord great deference to the opportunity of the jury to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Romero, 7 N.Y.3d 633, 644–645 2006; People v. Mateo, 2 N.Y.3d 383, 410 2004; People v. Bleakley, 69 N.Y.2d 490, 495 1987; People v. Adilovic, 34 Misc.3d 159[A], 2012 N.Y. Slip Op 50437[U] [App Term, 9th & 10th Jud Dists 2012] ). We must weigh “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [internal quotation marks and citation omitted] ), and determine whether an acquittal would not have been unreasonable based upon the evidence, and whether the jury failed to accord the evidence the weight it should have been accorded (id.; see People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1).
Here, after weighing any conflicting testimony, reviewing the rational inferences to be drawn from the evidence, and evaluating the strength of such conclusions, we find that the verdict of guilt was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Annis, 126 A.D.3d 1525, 1526 2015; People v. Thornton, 87 A.D.3d at 664, 928 N.Y.S.2d 358; People v. Maricevic, 52 A.D.3d at 1044–1045, 860 N.Y.S.2d 666; People v. Persaud, 188 A.D.2d 559 1992; People v. Lont, 34 Misc.3d 142[A], 2012 N.Y. Slip Op 50088[U]; People v. Ortiz, 34 Misc.3d 142[A], 2012 N.Y. Slip Op 50086[U] ).
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., WESTON and SOLOMON, JJ., concur.