People v. Thomas

280 A.D.2d 998, 720 N.Y.S.2d 668, 2001 N.Y. App. Div. LEXIS 1119

Opinion

—Judgment unanimously affirmed. Memorandum: Contrary to defendant’s contention, the conviction of two counts of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]; § 1193 [1] [c]) is supported by legally sufficient evidence (see generally, People v Bleakley, 69 NY2d 490, 495). Defendant’s vehicle was pulled off the road at an intersection and a police officer observed defendant slumped over the wheel of the vehicle; the officer had difficulty awakening defendant and smelled alcohol when defendant rolled down the window of the vehicle; the keys were in the ignition; the officer did not observe any beverage containers in or around the vehicle; defendant was unable to perform field sobriety tests; defendant admitted that he drank 10 or 11 beers at one location and drove to the intersection, intending to drive to another location to play horseshoes; and the results of a breathalyzer test indicated that defendant’s blood alcohol level was .16%. The jury could infer from that evidence that defendant operated his vehicle while intoxicated (see, People v Saplin, 122 AD2d 498, 498-499, lv denied 68 NY2d 817). (Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Felony Driving While Intoxicated.) Present — Wisner, J. P., Hurlbutt, Scudder, Kehoe and Burns, JJ.