Opinion
KA 00-02996
February 1, 2002.
Appeal from a judgment of Ontario County Court (Henry, Jr., J.), entered October 20, 2000, convicting defendant after a jury trial of felony driving while intoxicated.
JONES, PARKS HAMLIN, LLP, CANANDAIGUA (DAVID M. PARKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MORRIS SARFATY, DEFENDANT-APPELLANT PRO SE.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury verdict of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192; § 1193 [1] [c]) and sentencing him to an indeterminate term of imprisonment of 1 to 3 years. We reject the contention of defendant that the deputy lacked reasonable suspicion to stop his vehicle. The deputy was authorized to stop defendant's vehicle when he observed defendant driving down the center of the road, forcing the deputy to pull off the road to allow defendant to pass ( see, People v. Schroeder, 229 A.D.2d 917; People v. Nicolo, 166 A.D.2d 912). Thereafter, based upon the deputy's observations of the inability of defendant to walk without holding onto the vehicle, his slurred speech, the odor of alcoholic beverages, his inability to perform several field sobriety tests, and his admission that he had been drinking, the deputy had probable cause to arrest defendant for operating a motor vehicle while in an intoxicated condition ( see, People v. Schmitt, 262 A.D.2d 588, lv denied 94 N.Y.2d 829; People v. Schroeder, supra, at 917-918).
The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). From our review of the record, we conclude that defendant received effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147). In view of the fact that this is defendant's fifth alcohol-related conviction, we conclude that the sentence is neither unduly harsh nor severe. Defendant's remaining contentions, including those raised in the pro se supplemental brief, are not preserved for our review ( see, CPL 470.05), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).