PEOPLE v. SANTOS (2025)

Judgment of conviction (Jeffrey Rosenblueth, J.), rendered August 27, 2019, affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v Danielson, 9 NY3d 342, 348—349 [2007]). The evidence established beyond a reasonable doubt that defendant operated a motor vehicle while intoxicated. Defendant was behind the steering wheel of the vehicle that was stopped with the engine running in a “no standing” zone (see People v Alamo, 34 NY2d 453, 458-459 [1974]; People v Almanzar, 113 AD3d 527 [2014], lv denied 23 NY3d 1059 [2014]). He also admitted to the officer that he consumed three alcoholic beverages; and defendant exhibited classic signs of intoxication, including bloodshot and watery eyes, slurred speech, and a strong odor of alcohol on his breath (see People v Cruz, 48 NY2d 419, 427 [1979]). Furthermore, the Intoxilyzer 9000 breath test device measured his blood alcohol content at .20 (see People v DeMarasse, 85 NY2d 842, 845 [1995]; People v Mertz, 68 NY2d 136, 139 [1986]).

Defendant's contention that the prosecutor made improper comments during summation is unavailing. Taken as a whole, the bulk of the challenged remarks were either fair response to defense counsel's arguments or fair comment on the evidence, and any improprieties were not so egregious as to deprive defendant of a fair trial (see People v Garland, 155 AD3d 527, 529 [2017], affd 32 NY3d 1094 [2018], cert denied ––– US ––––, 140 S Ct 2525 [2020]; People v Feola, 154 AD3d 638, 639 [2017], lv denied 31 NY3d 1013 [2018]). Contrary to defendant's contention, the prosecutor was not shifting the burden, but permissibly making an evidence-based argument in response to the defense summation (see People v Green, 105 AD3d 611, 612 [2013], lv denied 21 NY3d 1015 [2013]). Nor could the prosecutor's comments be perceived as vouching for the credibility of the arresting officer, since the prosecutor made fair arguments as to why witnesses should be believed, remarks that were a permissible comment on a matter of credibility, and the prosecutor did not become an unsworn witness (see People v Ringer, 90 AD3d 439, 439-440 [2011], lv denied 18 NY3d 927 [2012]; People v Massie, 305 AD2d 116, 117 [2003], affd 2 NY3d 179 [2004]). In any event, the court's curative instructions were sufficient to prevent any prejudice (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]). To the extent there were any improprieties, any error was harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.