People v. Ferrara (Steven)

The People of the State of New York, Respondent, against Steven Ferrara, Appellant. Appeal from a judgment of the City Court of Newburgh, Orange County (E. Loren Williams, J.), rendered January 22, 2015. The judgment convicted defendant, after a nonjury trial, of common-law driving while intoxicated. ORDERED that the judgment of conviction is modified, on the law, by reducing defendant's conviction of common-law driving while intoxicated to driving while ability impaired and vacating the sentence imposed, and the fine and surcharge, if paid, are remitted; as so modified, the judgment of conviction is affirmed, and the matter is remitted to the City Court for sentencing on defendant's conviction of driving while ability impaired. Insofar as is relevant to this appeal, following a nonjury trial, defendant was found guilty of common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Upon a review of the record, we find that the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), was legally insufficient to establish defendant's guilt of common-law driving while intoxicated. The evidence, however, was legally sufficient to establish defendant's guilt of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), since it proved, beyond a reasonable doubt, that defendant's ability to operate the vehicle had been impaired to some extent (see People v McNamara, 269 AD2d 544, 545 [2000]). The evidence included, among other things, defendant's testimony that he had consumed two or three beers and the police officers' testimony that defendant had driven his vehicle into a snow bank as he had made a right turn and that he had stumbled when he had exited the vehicle. Defendant's remaining contentions lack merit. Accordingly, we modify the judgment by reducing the conviction to driving while ability impaired (see CPL 470.15 [2] [a]) and by vacating the sentence imposed, and the fine and surcharge, if paid, are remitted; as so modified, the judgment of conviction is affirmed and the matter is remitted to the City Court for sentencing on defendant's conviction of driving while ability impaired (see CPL 470.20 [4]). Brands, J.P., Marano and Tolbert, JJ., concur. Decision Date: February 14, 2017