Opinion
2003-915 WCR.
Decided October 14, 2004.
Appeal by defendant from a judgment of the City Court, City of Peekskill, Westchester County (B. Birbrower, J.), rendered June 19, 2003, convicting defendant, after a nonjury trial, of driving while impaired (Vehicle and Traffic Law § 1192) and imposing sentence.
Judgment of conviction unanimously affirmed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Viewed in the light most favorable to the prosecution ( People v. Contes, 60 NY2d 620, 621), the proof of defendant's appearance and inability to perform a series of roadside sobriety tests established a legally sufficient case of driving while impaired, independent of the .07 blood alcohol reading, which under then-applicable law, constituted relevant evidence of the offense. Defendant's testimony, wherein he denied having ingested any alcoholic beverages during the evening prior to his arrest and offered exculpatory explanations for his inability to execute the coordination tests, "merely created factual issues which the [court], as the . . . arbiter of credibility, resolved against him" ( People v. Reynolds, 133 AD2d 499, 500; see People v. Gertz, 189 Misc 2d 315, 316 [App Term, 9th 10th Jud Dists 2001]). As it cannot be said that these determinations are "clearly unsupported by the record," they should not be disturbed ( People v. Bens, 5 AD3d 391, 392; People v. Garafolo, 44 AD2d 86, 88).
Defendant's claim that the testimony of the forensic toxicologist improperly encroached upon a matter ultimately reserved for the trier of fact ( see People v. Peacock, 193 Misc 2d 672, 674 [App Term, 9th 10th Jud Dists 2002]) is not preserved for appellate review. In any event, in a nonjury trial, the court is presumed, "by virtue of . . . learning and experience, to have considered only the competent evidence adduced in reaching [its] determination" ( People v. Torres, 1 AD3d 621).
We have examined defendant's remaining contentions and find them without merit.