Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. John FRIELLO, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester, The Law Office of Guy A. Talia (Guy A. Talia of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester, The Law Office of Guy A. Talia (Guy A. Talia of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NeMOYER, AND TROUTMAN, JJ.
MEMORANDUM:On appeal from a judgment convicting him upon a jury verdict of, inter alia, driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ), defendant contends that the verdict is against the weight of the evidence with respect to the element of intoxication. We reject that contention. "Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence," we must afford great deference to the fact-finder's opportunity to view the witnesses, hear their testimony and observe their demeanor (People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 ). It was for the jury to determine whether to credit the testimony of the arresting officer that defendant exhibited a number of signs of intoxication, or the testimony of defendant's acquaintances that he did not appear to be intoxicated (see People v. Shelton, 111 A.D.3d 1334, 1336, 974 N.Y.S.2d 224, lv. denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 ). The jury was also entitled to consider, as evidence of consciousness of guilt, defendant's refusal to participate in field sobriety tests (see generally People v. Berg, 92 N.Y.2d 701, 706, 685 N.Y.S.2d 906, 708 N.E.2d 979 ), or to submit to a chemical test (see People v. McGraw, 57 A.D.3d 1516, 1517, 869 N.Y.S.2d 893 ). Thus, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that, although a different verdict would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see People v. Stevens, 109 A.D.3d 1204, 1205, 971 N.Y.S.2d 637, lv. denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.