Opinion
2014-10-3
The PEOPLE of the State of New York, Respondent, v. Mary SEGATOL–ISLAMI, Defendant–Appellant.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon a nonjury verdict of felony driving while intoxicated (Vehicle and Traffic Law §§ 1192 [3]; 1193[1][c][i] ). Contrary to defendant's contention, the evidence is legally sufficient to establish that she was the operator of her motor vehicle. A witness testified that he saw defendant drive her vehicle into a liquor store parking lot and park the vehicle, running over a parking block in the process. We reject defendant's contention that the testimony of that witness was incredible as a matter of law ( see People v. Meacham, 84 A.D.3d 1713, 1715, 922 N.Y.S.2d 721, lv. denied17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806), i.e., “ ‘manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ ” (People v. Gaston, 104 A.D.3d 1206, 1207, 960 N.Y.S.2d 590, lv. denied22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128). Indeed, that witness's testimony was confirmed by the testimony of a police sergeant who observed the intoxicated defendant leaving the liquor store and approach her vehicle. Although the police sergeant testified that he never observed defendant operate her vehicle, he further testified that the parking block in front of her vehicle was displaced diagonally by 1 1/2 to 2 feet, that there was no one else with her as she attempted to enter the driver's seat of her vehicle, and that she had a key to her vehicle in her purse.
While we agree with defendant that County Court erred in concluding that she could not waive her presence for the testimony of a potential witness ( see generally People v. Parker, 57 N.Y.2d 136, 139–140, 454 N.Y.S.2d 967, 440 N.E.2d 1313; People v. Epps, 37 N.Y.2d 343, 349–351, 372 N.Y.S.2d 606, 334 N.E.2d 566, cert. denied423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374; People v. Porter, 201 A.D.2d 881, 881–882, 607 N.Y.S.2d 796, lv. denied83 N.Y.2d 857, 612 N.Y.S.2d 388, 634 N.E.2d 989), we conclude that the error had no impact on her decision to rest her case without calling that witness to testify. Defendant contends that the error prejudiced her because she chose to rest her case so that she could start an inpatient treatment program on the next day scheduled for trial. The court, however, informed defendant that it would not release her from jail until the trial was completed, and the proposed witness could not testify until the next trial date. We therefore conclude that defendant could not have entered the treatment program even if she was absent during her proposed witness's testimony.
Finally, we have reviewed defendant's challenge to the sentence of probation to be served after the indeterminate term of incarceration and conclude that it is without merit ( see generallyVehicle and Traffic Law § 1193[1][c][iii]; Penal Law § 60.21).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.