People v. Gelster

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of driving while his ability was impaired by alcohol (Vehicle and Traffic Law § 1192 [1]), aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]) and failure to keep right (Vehicle and Traffic Law § 1120 [a]). Defendant contends that the conviction of driving while ability impaired and aggravated unlicensed operation is against the weight of the evidence and that the sentence is unduly harsh or severe. The issue at trial under Vehicle and Traffic Law § 1192 (1) was “whether, by voluntarily consuming alcohol, this particular 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, appeal dismissed 446 US 901). The issue was the same under Vehicle and Traffic Law § 511 (3) (a) (see, People v Keller, 252 AD2d 819, lv denied 92 NY2d 927; People v Cleveland, 238 AD2d 897, 898; People v Boyles, 210 AD2d 732, 733, n 2; People v Crandall, 199 AD2d 867, 868, lv denied 83 NY2d 803). Supreme Court’s findings that defendant was impaired by alcohol and drove under the influence of alcohol are not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495; People v Lizzio, 178 AD2d 741, 742, lv denied 79 NY2d 921; People v Monk, 177 AD2d 602, 603, lv denied 79 NY2d 861). The findings are supported by evidence of defendant’s poor driving, signs of intoxication, inability to perform field sobriety tests, and refusal to consent to a chemical test. Given defendant’s prior convictions for DWI, the court did not abuse its discretion in sentencing defendant to 60 days in jail and five years’ probation. (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Driving While Ability Impaired.) Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.