PEOPLE v. LUNDELL (2005)

Appeal by the defendant from a judgment of the Supreme Court, Dutchess County (Molea, J.), rendered March 28, 2000, convicting him of driving while intoxicated (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence adduced at trial was legally insufficient to support his conviction of driving while intoxicated is unpreserved for appellate review (see CPL 470.05[2];  People v. Legagneux, 263 A.D.2d 517, 691 N.Y.S.2d 922) and, in any event, without merit.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant was operating the motor vehicle in question while intoxicated in violation of Vehicle and Traffic Law § 1192(2) and (3).   The People produced testimony from two police officers that the defendant, who had been driving erratically, had watery and bloodshot eyes, slurred speech, smelled of alcohol, and failed two field sobriety tests (see People v. Casimiro, 308 A.D.2d 456, 764 N.Y.S.2d 198;  People v. Milo, 300 A.D.2d 680, 753 N.Y.S.2d 90).   This evidence was legally sufficient to support the defendant's conviction under Vehicle and Traffic Law § 1192(3) beyond a reasonable doubt.   The People also produced ample evidence that the breathalyzer test, which revealed a blood-alcohol content of .16 percent, was reliable (see People v. Mertz, 68 N.Y.2d 136, 506 N.Y.S.2d 290, 497 N.E.2d 657).

Furthermore, upon the exercise of our factual review power (see CPL 470.15 [5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Casimiro, supra;  People v. Gangale, 249 A.D.2d 413, 671 N.Y.S.2d 148;  People v. Kane, 240 A.D.2d 516, 658 N.Y.S.2d 434).