PEOPLE v. JORDAN (2021)

ORDERED that the judgment of conviction is affirmed.

In separate simplified traffic informations, defendant was charged with driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), operating a motor vehicle without insurance (Vehicle and Traffic Law § 319 [1]), speeding (Vehicle and Traffic Law § 1180 [b]), and making an unsafe lane change (Vehicle and Traffic Law § 1128 [a]). Following a jury trial, defendant was found guilty of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), which charge had been submitted as a lesser included offense of driving while intoxicated. The jury found defendant not guilty of the other charges.

Turning first to defendant's contention that the verdict was against the weight of the evidence, we “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks omitted]). Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d at 495), we find that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Defendant claims that the model jury instruction that the trial court followed to charge driving while ability impaired as a lesser included offense of driving while intoxicated (common law) is improper because it does not instruct the jury that it cannot consider punishment or the court's opinion in its deliberations. Defendant's contention is unpreserved for appellate review, as defendant failed to object to the charge (see CPL 470.05 [2]). In any event, it is well settled that in evaluating a challenged jury instruction, the charge must be viewed as a whole against the background of the evidence produced at the trial (see People v Walker, 26 NY3d 170, 174-175 [2015]; People v Medina, 18 NY3d 98, 104 [2011]; People v Umali, 10 NY3d 417, 426-427 [2008]). The jury charge given here, read as a whole, conveyed the proper principles of law to the jury.

Accordingly, the judgment of conviction is affirmed.

RUDERMAN, P.J., EMERSON and DRISCOLL, JJ.