PEOPLE v. CHARLES (2021)

ORDERED that the judgment of conviction is affirmed.

After a nonjury trial, defendant was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) based upon evidence demonstrating that defendant rear-ended a parked car; that defendant was asleep in the driver's seat of his vehicle, sitting upright behind the wheel; that the engine was running, the gear shift was in drive, and defendant's foot was on the brake; that defendant had red, bloodshot eyes, and an odor of alcohol on his breath; that defendant's speech was “a little slurred” and his movements were “a little bit slow;” and that defendant admitted that he had consumed alcohol.

Contrary to defendant's contention, the recording of a call to the 911 emergency number placed by an eyewitness to the accident was properly admitted. The caller's statements constituted a present sense impression exception to the hearsay rule and were not testimonial in nature but made for the primary purpose of reporting an emergency in order to summon the police. Consequently, there was no violation of defendant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution (see generally Crawford v Washington, 541 US 36, 56 [2004]; People v Nieves-Andino, 9 NY3d 12 [2007]; People v Thomas, 187 AD3d 949, 950 [2020]; People v DeLoney, 39 Misc 3d 134[A], 2013 NY Slip Op 50536[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that the evidence was legally sufficient to establish defendant's guilt of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383, 409 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the guilty verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.