Opinion
1999-06.
Decided August 7, 2007.
Gail B. Rubenfeld, Esq., Monticello, NY, Attorney for Defendant.
Hon. Stephen F. Lungen, Sullivan County District Attorney, Monticello, NY, By: Robert L. Zangla, ADA, of counsel, Attorney for the People.
This matter comes on by defendant appeal from a jury verdict finding her guilty of V T § 1192(3), common law DWI.
Defendant has submitted all relevant documents including Appellant Brief and Notice of Argument.
The People have submitted a Respondent's Brief.
The matter is fully submitted.
Defendant moved for a trial order of dismissal after the People's case in Chief, again after the defense closed and again after closing arguments to the jury. After initially reserving decision the Court denied each motion by Decision and Judgment dated February 11, 2006.
On October 24, 2004 a New York State Trooper came across a motor vehicle parked on the shoulder of State Route 17, a four lane controlled access highway, in the Town of Thompson, County of Sullivan. A routine traffic investigation ensued.
Upon exiting his police cruiser, the Trooper observed the car's engine running, the drivers door open and the defendant apparently asleep behind the wheel.
The Trooper noticed an odor of alcohol on defendant's breath, her eyes were bloodshot and she was either incoherent or non-responsive to his questions regarding her safety. After the required Miranda and DWI warnings the defendant admitted to consuming two drinks prior to driving and, after pulling over to the side of the road because she was tired, taking her medication of Alprazolam
Alprazolam is a listed drug under Public Health Law § 3306.
Defendant was arrested and transported to Catskill Regional Medical Center (CRMC) where blood was drawn for alcohol and drug testing.
The defendant was charged with violation of V T § 1192(2)(3) and (4).
Blood test results showed an alcohol reading of .06 and the presence of the drug Alprazolam.
New V T § 1192(4-a) which became effective on November 1, 2006, subsequent to this case, envisioned a like scenario where Driving While Ability Impaired by a combination of alcohol and drugs could now be charged against such a defendant.
At trial the Trooper testified as to the defendant's condition when he first encountered her parked on the shoulder of the highway. He also testimony as stated above he also testified that she was not capable of standing or performing field sobriety tests at the scene and in the opinion of the New York State Trooper the defendant was intoxicated.
The Registered Nurse who drew the blood at CRMC also testified at trial that the defendant's speech was slurred, she staggered when walking and required assistance to get into the hospital bed.
At the conclusion of proof and closing arguments the jury was instructed as to the charges against the defendant [1192(2)(3) and (4)] as well as 1192(1)DWAI as a lesser included offense.
The jury only returned a verdict of guilty to 1192(3) Common Law DWI.
The defendant now appeals arguing that the evidence at trial was insufficient to support her conviction of V T 1192(3) and the verdict was against the weight of the evidence.
The defendant herein evokes two similar but differing standards of appellate review, legal sufficiency and weight of evidence.
To determine legal sufficiency the standard . . ." is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt." People v Washington , 8 NY3d 565 (2007) quoting People v Rossey , 89 NY2d 970 (1997).
To determine weight of evidence the standard is "If based on all of the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (citations omitted) and . . . "If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict." People v Bleakley , 69 NY2d 490 (1987).
The defendant's relies on People v Hagmann , 175 AD2d 502 (3rd Dept., 1991).
In Hagmann the Third Department found the verdict was against the weight of the evidence as there was "no testimony that any of [the defendant's] physical or mental abilities were impaired before impact to a degree sufficient to render him intoxicated," supra at 505, and although a nurse observed that the defendant's eyes were dazed, his speech slow and his breath smelled of alcohol, she testified that in her opinion he "did not appear intoxicated." supra.
Unlike Hagmann , the trial testimony herein shows that the defendant's physical and mental abilities were impacted to a degree sufficient to conclude that she was intoxicated.
In the case at bar both the New York State Trooper and the RN who drew the defendant's blood were qualified to testify to their opinion as to the defendant's state of intoxication and unequivocally opined that she was intoxicated.
This Court is satisfied that all the elements of the crime have been proven beyond a reasonable doubt by legally admissible evidence and, thus, the standard for legal sufficiency has been met.
Defendant further argues that under V T § 1195(2)(b) a blood alcohol level of .06, as in the within matter, is prima facie evidence that the defendant was not intoxicated and that observation and opinion evidence to overcome this burden must be of sufficient strength to rebut this presumption beyond a reasonable doubt.
Historically, Prima Facie evidence is defined as "Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced." Black's Law Dictionary, p 579 (7th ed 1999).
The People are entitled to rebut the presumption in V T § 1195(2)(c) that a person is not intoxicated. People v Blair , 98 NY2d 722 (2002). By extension the People are entitled to also rebut same presumption under V T § 1195(2)(b).
Intoxication is the degree of impairment reached when a driver has voluntarily consumed alcohol "to the extent that he is incapable of employing 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 (1979).
This Court is satisfied that the credible observation and opinion testimony of the New York State Trooper and the RN were sufficient to overcome the statutory presumption of V T § 1195(2)(b) beyond a reasonable doubt and that the jury's acceptance of that testimony cannot be rejected as a matter of law.
This Court finds that the jury verdict herein was supported by legal sufficiency and was not beyond the weight of the evidence.
Based upon the above, it is
ORDERED, that the appeal is dismissed and the verdict affirmed.
This shall constitute the Decision and Order of this Court.