PEOPLE v. DONHAUSER (1998)

Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated (DWI) as a felony (Vehicle and Traffic Law § 1192 [3];  § 1193[1][c] ) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3] ).   In February 1996 defendant was sentenced as a persistent felony offender to an indeterminate term of incarceration of 15 years to life.

 The verdict is not against the weight of the evidence.   The testimony of a Deputy Sheriff concerning his observations of defendant and the admission of defendant that he had been drinking were sufficient to establish defendant's intoxication (see, People v. Bowers, 201 A.D.2d 830, 608 N.Y.S.2d 347, lv. denied 83 N.Y.2d 909, 614 N.Y.S.2d 391, 637 N.E.2d 282).   We cannot conclude that the jury failed to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The prosecutor's conduct was not so egregious as to deny defendant a fair trial (see, People v. Broadus, 129 A.D.2d 997, 514 N.Y.S.2d 580, lv. denied 70 N.Y.2d 643, 518 N.Y.S.2d 1035, 512 N.E.2d 561).

 Prior to trial, defendant entered into a stipulation pursuant to CPL 200.60 (see generally, People v. Cooper, 78 N.Y.2d 476, 482-483, 577 N.Y.S.2d 202, 583 N.E.2d 915), admitting a prior DWI conviction and also admitting that, at the time of his arrest, he knew that his license was revoked as the result of a prior conviction or refusal to submit to a breathalyzer test.   The record establishes that defendant voluntarily entered into the stipulation “as part of a strategy to keep the jury from learning of his prior DWI conviction and that his license was suspended or revoked at the time of his arrest” (People v. Tatro, 245 A.D.2d 1040, 667 N.Y.S.2d 560).   Thus, defendant thereby waived his present contention that County Court failed to comply with CPL 320.10(2) in not submitting count two to the jury (see, People v. Tatro, supra;  see also, People v. Flanagan, 247 A.D.2d 899, 668 N.Y.S.2d 528, lv. denied 91 N.Y.2d 972, 672 N.Y.S.2d 851, 695 N.E.2d 720).

 As a matter of discretion in the interest of justice, we modify the judgment by vacating the finding that defendant is a persistent felony offender and reducing the sentence to a indeterminate term of incarceration of 1 1/3 to 4 years (see, CPL 470.20[6] ).   We note that, had defendant's offense been committed after October 31, 1996, it could have been punishable as a class D felony (see, Vehicle and Traffic Law § 1193[1][c][ii], added by L.1996, ch. 652).

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed.

MEMORANDUM: