Opinion
(1018) KA 99-1370.
September 28, 2001.
Appeal from Judgment of Steuben County Court, Furfure, J. — Felony Driving While Intoxicated.)
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him, following a jury trial, of felony driving while intoxicated (Vehicle and Traffic Law § 1192; 1193 [1] [c]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [a]), defendant contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Having failed to move to dismiss those charges on the ground of legal insufficiency, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see, People v. Gray, 86 N.Y.2d 10, 19). In any event, that contention is without merit. Although defendant's friend testified that he was driving the vehicle and that he entered a plea of guilty in town court to unlicensed operation of a motor vehicle, it was the province of the jury to determine the credibility of the witnesses ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The jury was entitled to find that the testimony of defendant's friend that he was driving was not credible and that he entered a plea of guilty in order to protect defendant. The other evidence, including the statements of defendant and his friend at the scene, could lead the jury to find that defendant was driving.
Defendant further contends that he was denied a fair trial by the prosecutor's comment on summation that defendant admitted that he was driving the vehicle. Defense counsel objected to that comment and County Court granted defendant's request to give curative instructions, thereby alleviating any prejudice to defendant ( see, People v. Wilson [Keith] [appeal No. 1] , ___ A.D.2d ___ [decided June 8, 2001]; People v. Marzug, 280 A.D.2d 974, 975). Defendant failed to preserve for our review his contention that the court's instruction on reasonable doubt was improper ( see, People v. Procks, 258 A.D.2d 951, 952, lv denied 93 N.Y.2d 976). In any event, that contention lacks merit ( see, People v. Antommarchi, 80 N.Y.2d 247, 252, rearg denied 81 N.Y.2d 759). Defendant received effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147). The sentence is neither unduly harsh nor severe.