Opinion
2016-1649 S CR
12-13-2018
The PEOPLE of the State of New York, Respondent, v. Kathleen RAFFERTY, Appellant.
Barket Marion Epstein & Kearon, LLP (Donna Aldea and Alexander R. Klein of counsel), for appellant. Suffolk County District Attorney (Grazia DiVincenzo of counsel), for respondent.
Barket Marion Epstein & Kearon, LLP (Donna Aldea and Alexander R. Klein of counsel), for appellant.
Suffolk County District Attorney (Grazia DiVincenzo of counsel), for respondent.
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
ORDERED that the judgment of conviction is affirmed.
Insofar as is relevant to this appeal, defendant was charged, in a felony complaint, with driving while intoxicated ( Vehicle and Traffic Law §§ 1192 [3 ]; 1193 [1] [c] ). The People subsequently reduced the charge to misdemeanor common-law driving while intoxicated, by replacing the felony complaint and filing a prosecutor's information, at which time defendant offered no objection. Following a jury trial, defendant was found guilty of the charge. On appeal, defendant argues that the reduction was deficient, that the accusatory instrument was facially insufficient, and that the verdict was against the weight of the evidence.
While some issues with felony complaint reductions are nonwaivable (see e.g. People v. Jones , 151 Misc 2d 582 [App Term, 2d Dept, 2d & 11th Jud Dists 1991], lv denied 79 NY2d 921 [1992] ), the deficiencies alleged here by defendant do not fall within that category (cf. People v. Hunter , 5 NY3d 750 [2005] ; People v. Williams , 25 Misc 3d 15 [App Term, 2d Dept, 9th & 10th Jud Dists 2009] ). Since defendant acquiesced to the reduction, which, in any event, merely removed her prior conviction from consideration, her argument is not preserved for appeal.
Vehicle and Traffic Law § 1192 (3) states that "[n]o person shall operate a motor vehicle while in an intoxicated condition." Defendant argues that the accusatory instrument did not sufficiently plead defendant's "operation" of her car while intoxicated. Reviewed under the appropriate standards, the prosecutor's information was facially sufficient (see CPL 100.40 [3 ]; 100.35).
At the trial, the arresting officer testified that she had arrived at defendant's home around midnight, after she had identified defendant's car as having been involved in a minor incident at a local bar. She observed defendant sitting in the driver's seat of the car. When defendant saw the officer, she exited the car, holding her car keys. Although the car was not running, the hood felt warm to the touch, as if the engine had recently been running. Defendant exhibited signs of intoxication and failed all of the field sobriety tests the officer administered. When asked if she had been at the bar that night, defendant stated that she had been there and had not had anything to drink since she left, which was an hour earlier.
In conducting an independent review of the weight of the evidence (see People v. Danielson , 9 NY3d 342, 348 [2007] ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v. Mateo , 2 NY3d 383 [2004] ; People v. Bleakley , 69 NY2d 490, 495 [1987] ; People v. Zephyrin , 52 AD3d 543 [2008] ). Upon a review of the record, we find that the verdict was not against the weight of the evidence (see People v. Romero , 7 NY3d 633 [2006] ).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.