People v. Cooley

Appellate Division of the Supreme Court of New York

People v. Cooley

69 A.D.3d 1058, 891 N.Y.2d 681

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 7, 2010

StatusPublished

Cited by5 cases

This text of 69 A.D.3d 1058 (People v. Cooley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cooley, 69 A.D.3d 1058, 891 N.Y.2d 681 (N.Y. Ct. App. 2010).

Pincite

Opinion

Rose, J.

Defendant’s sole contention on appeal from her conviction of two counts of felony driving while intoxicated and a traffic violation is that County Court was required, but failed, to give the jury a circumstantial evidence instruction. This issue is not preserved for our review, however, because the defense neither requested such a charge nor objected to its omission from the jury instructions (see People v Ryan, 46 AD3d 1125, 1127-1128 [2007], Iv denied 10 NY3d 939 [2008]; People v Stanton, 21 AD3d 576, 577 [2005]; People v Wallace, 8 AD3d 753, 756 [2004], lv denied 3 NY3d 682 [2004]; see also CPL 470.05 [2]). Even if we were to consider it, the testimony that defendant had admitted that she was going too fast around a corner before her vehicle left the road and rolled over constituted direct evidence of her operation of the vehicle (see People v Casper, 42 AD3d 887, 888 [2007], lv denied 9 NY3d 990 [2007]). In any event, a circumstantial evidence charge must be given only where all the evidence presented as to every element of the criminal charge is circumstantial, and here there was direct evidence of the element of intoxication (see People v Daddona, 81 NY2d 990, 992 [1993]; People v Allen, 1 AD3d 947, 948 [2003], lv denied 1 NY3d 594 [2004]; People v Struss, 228 AD2d 711, 714 [1996], lv denied 89 NY2d 867 [1996]).

Peters, J.E, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Rose, J.

Defendant’s sole contention on appeal from her conviction of two counts of felony driving while intoxicated and a traffic violation is that County Court was required, but failed, to give the jury a circumstantial evidence instruction. This issue is not preserved for our review, however, because the defense neither requested such a charge nor objected to its omission from the jury instructions (see People v Ryan, 46 AD3d 1125, 1127-1128 [2007], Iv denied 10 NY3d 939 [2008]; People v Stanton, 21 AD3d 576, 577 [2005]; People v Wallace, 8 AD3d 753, 756 [2004], lv denied 3 NY3d 682 [2004]; see also CPL 470.05 [2]). Even if we were to consider it, the testimony that defendant had admitted that she was going too fast around a corner before her vehicle left the road and rolled over constituted direct evidence of her operation of the vehicle (see People v Casper, 42 AD3d 887, 888 [2007], lv denied 9 NY3d 990 [2007]). In any event, a circumstantial evidence charge must be given only where all the evidence presented as to every element of the criminal charge is circumstantial, and here there was direct evidence of the element of intoxication (see People v Daddona, 81 NY2d 990, 992 [1993]; People v Allen, 1 AD3d 947, 948 [2003], lv denied 1 NY3d 594 [2004]; People v Struss, 228 AD2d 711, 714 [1996], lv denied 89 NY2d 867 [1996]).

Peters, J.E, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

69 A.D.3d 1058, 891 N.Y.2d 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cooley-nyappdiv-2010.

Opinion

Related

Cite This Page — Counsel Stack