THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LLOYD KINNEAR DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him following a nonjury trial of two counts of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192[2], [3];  § 1193[1][c] [former (i) ] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish that he previously had been convicted of driving while intoxicated, and thus that the judgment must be modified to reduce the conviction to two counts of driving while intoxicated as a misdemeanor (see CPL 470.05[2];  cf.  People v. Vollick, 148 A.D.2d 950, affd 75 N.Y.2d 877).   In any event, we reject that contention.   The certificate of conviction that was admitted in evidence identified defendant by name and date of birth and was corroborated by evidence of the date of birth reflected on his driver's license.  “Thus, the People established that defendant was the person previously convicted of driving while intoxicated” (People v. Petrianni, 24 AD3d 1224, 1225;  see People v. Switzer, 55 AD3d 1394, 1395, lv denied 11 NY3d 858).

Patricia L. Morgan

Clerk of the Court