People v. Michalak

26 A.D.3d 886, 808 N.Y.S.2d 525, 2006 NY Slip Op 921, 2006 N.Y. App. Div. LEXIS 1515

Opinion

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered November 5, 2003. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated as a felony.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: We reject the contention of defendant that the verdict finding him guilty of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). According to the testimony of police witnesses at trial, defendant admitted that he was driving home from his girlfriend’s house when he hit a patch of ice and skidded into a ditch. Thus, contrary to defendant’s contention, the evidence establishes that defendant operated his vehicle on a public highway. Additionally, the police witnesses testified at trial that defendant admitted consuming alcohol at his girlfriend’s house, and there was no evidence at trial that he consumed any alcohol after his vehicle skidded into the ditch. We therefore conclude that the jury did not fail to give the evidence the weight it should be accorded in finding that defendant was intoxicated at the time he operated the vehicle (see generally id.). Finally, the sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ.