Opinion
March 16, 1987
Appeal from the County Court, Dutchess County (King, J.).
Ordered that the order is reversed, that branch of the motion is denied, the indictment is reinstated and the matter is remitted to the County Court, Dutchess County, for further proceedings.
Viewing the evidence before the Grand Jury in the light most favorable to the People (People v. Warner-Lambert Co., 51 N.Y.2d 295, 299, cert denied 450 U.S. 1031), we conclude that it is legally sufficient to establish a prima facie case that the defendant committed the offenses charged and that the proof relied upon is competent and admissible such that, if unexplained and uncontradicted, a conviction would be warranted (see, People v. Dossinger, 106 A.D.2d 661, 662; People v. Makatura, 102 A.D.2d 832, 833). Evidence that a breathalyzer test administered within two hours of the accident by a properly certified operator (Vehicle and Traffic Law § 1194) showed the defendant to have a blood alcohol content of .10% was sufficient to establish, prima facie, a violation of Vehicle and Traffic Law § 1192 (2) (People v. Mertz, 68 N.Y.2d 136, 139).
The mere act of driving a motor vehicle while there is any alcoholic impairment of the driver's ability to operate that vehicle suffices to establish a violation of Vehicle and Traffic Law § 1192 (1) (see, People v. Cruz, 48 N.Y.2d 419, 426, appeal dismissed 446 U.S. 901). The testimony that the defendant was traveling at a rate in excess of the speed limit, that he made no attempt to stop prior to the impact and that he failed to perceive the pedestrian, established a prima facie case that the defendant was operating a motor vehicle while his ability to do so was impaired by his consumption of alcohol. In reaching a contrary determination, the County Court improperly acted as an arbiter of credibility in weighing the conflicting evidence presented before the Grand Jury (see, People v. Alaxanian, 89 A.D.2d 700; People v. Cole, 97 A.D.2d 886).
Inasmuch as the prosecutor properly furnished the Grand Jury with sufficient information to enable it to intelligently decide whether there exists legally sufficient evidence to establish the material elements of the crime, the subject indictment was improperly dismissed and must be reinstated (see, People v Goetz, 68 N.Y.2d 96, 115; People v. Valles, 62 N.Y.2d 36, 38; People v. Calbud, Inc., 49 N.Y.2d 389, 394). Bracken, J.P., Weinstein, Spatt and Harwood, JJ., concur.