People v. Thomas (Shon)

People v Thomas (2021 NY Slip Op 50153(U)) [*1] People v Thomas (Shon) 2021 NY Slip Op 50153(U) [70 Misc 3d 142(A)] Decided on February 26, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 26, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ 2018-899 K CR The People of the State of New York, Respondent, against Shon Thomas, Appellant. Appellate Advocates (Caitlyn Carpenter of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Gamaliel Marrero and Daniel Berman of counsel), for respondent. Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael A. Gary, J.), rendered March 26, 2018. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Following a nonjury trial, defendant was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). On appeal, defendant contends that the trial evidence was legally insufficient because there was no testimony that defendant was observed driving a motor vehicle or that his ability to drive was impaired by alcohol. Defendant further asserts that, in any event, the guilty verdict was against the weight of the evidence. A defendant is guilty of driving while ability impaired pursuant to Vehicle and Traffic Law § 1192 (1) if the trial evidence establishes that, "by voluntarily consuming alcohol, [the] defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 427 [1979]; see People v Litto, 8 NY3d 692, 706 [2007]). A conviction of driving while ability impaired "requires only a showing that the defendant's ability to operate a vehicle was impaired to some extent" (People v McNamara, 269 AD2d 544, 545 [2000]; see People v Sines, 129 AD3d 1220 [2015]). However, to obtain such a conviction, there is no requirement that the defendant be observed driving the vehicle; instead, operation of a vehicle can be proven by circumstantial evidence (see People v Booden, 69 NY2d 185 [1987]; People v Saplin, 122 AD2d 498 [1986]; People v Ramlall, 47 Misc 3d 141[A], 2015 NY Slip Op [*2]50621[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v Sieber, 40 Misc 3d 133[A], 2013 NY Slip Op 51143[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Here, the evidence adduced at trial established that, on the morning of February 20, 2017, a male placed a 911 call to report that a motor vehicle accident had occurred, which the caller had not witnessed. However, the caller observed damage to his neighbor's parked vehicle, saw vehicle fluid on the ground, and traced the fluid around to the corner to a gold Lexus vehicle that was double parked and stalled. The caller observed a male seated in the Lexus vehicle with his eyes open, and, notably, made no mention of any other occupants in the vehicle. In addition, the arresting officer testified that he had received a radio run on the morning of February 20, 2017 concerning a motor vehicle accident involving a gold Lexus and a parked Mercedes. The arresting officer responded to the same location that the male 911 caller had provided, and observed a gold Lexus that had heavy front end damage, with defendant standing next to the driver's side of that vehicle. Defendant then entered the driver's seat of the Lexus and closed the door. The vehicle's keys were in the ignition and its engine was running. The officer instructed defendant to exit the vehicle. With defendant standing "less than three feet" from the officer, the officer observed that defendant was unsteady on his feet, had bloodshot eyes, and had an odor of alcohol on his breath. Defendant informed the officer that he had "had two beers." Furthermore, an officer from the Intoxicated Driver Testing Unit testified that he, while at Brookdale Hospital shortly after defendant's arrest, observed that defendant had a moderate odor of an alcoholic beverage on his breath, and his eyes were bloodshot and watery. In view of the foregoing, the evidence establishes that defendant's vehicle hit the parked Mercedes vehicle, that he continued driving the Lexus vehicle to the location around the corner where it stalled, and that he did so while his ability had been impaired by the consumption of alcohol, "even though there is no direct proof that he drove [his vehicle]" (People v Blake, 5 NY2d 118, 120 [1958]; see People v Fenger, 68 AD3d 1441 [2009]; Saplin, 122 AD2d at 499 [circumstantial evidence permits the inference that a vehicle "had been driven by the . . . defendant before it came to rest"]; Sieber, 40 Misc 3d 133[A], 2013 NY Slip Op 51143[U]). Consequently, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that the evidence was legally sufficient to establish defendant's guilt of driving while ability impaired beyond a reasonable doubt. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Wu, 63 Misc 3d 159[A], 2019 NY Slip Op 50867[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). This court weighs the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. This court must then determine, based on the credible evidence, whether a different result would not have been unreasonable (see Romero, 7 NY3d 633; Bleakley, 69 NY2d at 495). Upon our independent review (see CPL 470.15 [5]; Danielson, 9 NY3d 342), we find that the guilty verdict was not [*3]against the weight of the evidence. Accordingly, the judgment of conviction is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: February 26, 2021