PEOPLE v. AMPAH (2020)

Judgment of conviction (Ann E. Scherzer, J.), rendered July 29, 2016, affirmed.

The accusatory instrument charging driving while intoxicated (see Vehicle and Traffic Law § 1192[3]) was not jurisdictionally defective. The instrument recited that defendant operated a motor vehicle at an excessive speed, that he had watery eyes and an odor of an alcohol on his breath, that there was a cup containing white wine on the floor of the backseat of the vehicle and a bottle of wine on the center console, and that defendant refused to submit to a breath test (see People v Fiumara, 116 AD3d 421 [2014], lv denied 23 NY3d 1036 [2014]).

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). Police had probable cause to arrest defendant, since he had watery eyes, smelled of alcohol, spoke with his mouth closed while looking away from the officers, had two containers containing a “yellow, greenish” liquid inside the car, and had been speeding (see People v Dudley, 169 AD3d 1059, 1060 [2019], lv denied 33 NY3d 1068 [2019]; People v Vargas, 123 AD3d 1149, 1150 [2014]; People v Thomas, 68 AD3d 482, 483 [2009], lv denied 14 NY3d 806 [2010]).

The court also properly denied defendant's motion to suppress testimony of his refusal to take a breathalyzer test. The record supports the court's finding that defendant effectively refused the test by “acting in an obstructionist manner” by refusing to give a “yes or no” response to the officer's multiple requests that he take such test (see People v Smith, 18 NY3d 544, 550 [2012]; People v Lizaldo, 124 AD3d 432, 433 [2015], lv denied 26 NY3d 931 [2015]; see also People v Warren, 160 AD3d 1132, 1136 [2018], lv denied 31 NY3d 1154 [2018]).

The verdict was supported by 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]). In addition to the officer's testimony that defendant exhibited classic signs of intoxication, he refused to take a breath test, unsatisfactorily performed physical coordination tests, and the toxicology report confirmed that the bottle recovered from the center console of his vehicle contained alcohol (see People v Cruz, 48 NY2d 419 [1979], appeal dismissed 446 US 901 [1980]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.