Opinion
November 5, 1976
Appeal from the Erie County Court.
Present — Marsh, P.J., Moule, Simons, Dillon and Witmer, JJ.
Judgment unanimously affirmed, Dillon, J. not participating. Memorandum: After a proper charge on driving while intoxicated, appellant was convicted of that offense (Vehicle and Traffic Law, § 1192, subd 3) upon sufficient evidence. We find no error requiring reversal and do not reach the issue of the constitutionality of subdivision 1 of section 1192 Veh. Traf. of the Vehicle and Traffic Law.