PEOPLE v. KANE (1997)

Appeal by the defendant from a judgment of the County Court, Westchester County (Leavitt, J.), rendered May 13, 1996, convicting him of driving while intoxicated, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence adduced at trial was legally insufficient to support his conviction of driving while intoxicated in that the People failed to establish the element of intoxication.   This contention is unpreserved for appellate review (see, CPL 470.05[2];  People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9), and, in any event, without merit.   Viewing the evidence in the light most favorable to the People (see, People v. Stack, 140 A.D.2d 389, 391, 527 N.Y.S.2d 569), we conclude that there was legally sufficient evidence to establish that the defendant was operating the motor vehicle in question while intoxicated in violation of Vehicle and Traffic Law § 1192(3) (see, People v. Bowers, 201 A.D.2d 830, 608 N.Y.S.2d 347;  People v. Nedoroscik, 178 A.D.2d 684, 577 N.Y.S.2d 157;  People v. Schools, 122 A.D.2d 502, 505 N.Y.S.2d 462).   The People produced testimony from three police officers, one of whom was off duty, that the defendant was flush, that he had trouble “focusing his eyes”, that his speech was deliberate and slurred, that he smelled of alcohol, and that he was swaying and sweating profusely.   Moreover, the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).

MEMORANDUM BY THE COURT.