The People of the State of New York, Respondent, v. Sarah Salem, Appellant. (2025)

ORDERED that the judgment convicting defendant of common-law driving while intoxicated is modified, as a matter of discretion in the interest of justice, by vacating the incarceration component of the sentence; as so modified, the judgment of conviction of common-law driving while intoxicated is affirmed; and it is further,

ORDERED that the judgment convicting defendant of failing to obey a traffic control device is affirmed.

Defendant  ¹ was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and failing to obey a traffic control device (Vehicle and Traffic Law § 1111 [d] [1]). Following a jury trial, defendant was convicted of common-law driving while intoxicated and failing to obey a traffic control device, and was acquitted of driving while intoxicated per se. On the conviction of common-law driving while intoxicated, the City Court (Scott L. Volkman, J.) imposed a sentence of 60 days in jail, three years of probation, and a $750 fine. On the conviction of failing to obey a traffic control device, the court imposed a $150 fine. The Supreme Court, Putnam County (Joseph J. Spofford, J.), stayed the incarceration component of the sentence.

On appeal, defendant argues that the conviction of common-law driving while intoxicated is not supported by legally sufficient evidence and is against the weight of the evidence; that the conviction of common-law driving while intoxicated should be set aside in the interest of justice; that defendant was deprived of the effective assistance of counsel; and that the sentences imposed on both convictions were harsh and excessive.

To convict defendant of common-law driving while intoxicated, the People had to establish, beyond a reasonable doubt, that defendant operated a motor vehicle while in an intoxicated condition (see Vehicle and Traffic Law § 1192 [3]). A driver of a motor vehicle is intoxicated when the driver "has voluntarily consumed alcohol to the extent that [they are] incapable of employing the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 428 [1979]). While a high blood alcohol content (BAC) is "some evidence of intoxication with regard to [the charge of common-law driving while intoxicated], it does not, standing alone, provide a sufficient basis to infer a state of intoxication absent additional proof of intoxication" (People v Pell, 64 Misc 3d 133[A], 2019 NY Slip Op 51092[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019] [internal quotation marks omitted]; see People v Brosnan, 62 Misc 3d 21, 24 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; see also Vehicle and Traffic Law § 1195 [1]).

Here, defendant admitted that they were operating a motor vehicle. As to defendant's intoxicated state, in addition to proof of defendant's .09% BAC, the People presented evidence that defendant ran a red light and crashed into another vehicle at an intersection. Defendant then asked the other driver involved in the accident to settle the matter between them, and reacted nervously when the other driver refused and said she was calling the police. Defendant admitted to drinking two beers before driving. The arresting officer, an experienced driving while intoxicated investigator, concluded that defendant was intoxicated. Though the arresting officer acknowledged that his administration of the two standardized field sobriety tests that he determined defendant had failed deviated from his training in a few respects, he also observed other indicia of intoxication, including defendant's red, glassy eyes and an odor of alcohol on their breath. Viewed in the light most favorable to the People (see People v Dubarry, 25 NY3d 161, 178 [2015]; People v Contes, 60 NY2d 620, 621 [1983]) and indulging in all reasonable inferences in the People's favor (see People v Gordon, 23 NY3d 643, 649 [2014]; People v Delamota, 18 NY3d 107, 113 [2011]), we conclude that the foregoing evidence was legally sufficient to establish that defendant was intoxicated (see People v Anzalone, 72 Misc 3d 140[A], 2021 NY Slip Op 50830[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Pell, 2019 NY Slip Op 51092[U]; People v Hicks, 63 Misc 3d 163[A], 2019 NY Slip Op 50927[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).

In conducting an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the factfinder'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 Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we find that the conviction of common-law driving while intoxicated was not against the weight of the evidence (see People v Anzalone, 2021 NY Slip Op 50830[U]; People v Pell, 2019 NY Slip Op 51092[U]; People v Hicks, 2019 NY Slip Op 50927[U]; People v Crane, 35 Misc 3d 132[A], 2012 NY Slip Op 50695[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

We decline defendant's invitation that we vacate the conviction of common-law driving while intoxicated in the interest of justice (see CPL 470.15 [3] [c]), as the record does not compel an inference that there is a grave risk that an innocent person has been convicted (see People v White, 75 AD3d 109, 125 [2010]; People v Laccone, 74 Misc 3d 137[A], 2022 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]).

Defendant's contention regarding the alleged ineffective representation of their trial counsel is that counsel failed to ask the City Court to include the following language in its instructions to the jury on the charge of common-law driving while intoxicated: "If you find from the evidence that there was less than .08 of one per centum by weight of alcohol in defendant's blood while [he/she] was operating the motor vehicle, you may, but are not required to, find that [he/she] was not in an intoxicated condition" (CJI2d[NY] Vehicle and Traffic Law § 1192 (3), https://nycourts.gov/judges/cji/3-VTL/VTL_1192/1192%283%29.pdf [last accessed September 25, 2024]). To the extent that the existing record permits review, we find that trial counsel's failure to request the quoted instruction did not deprive defendant of the effective assistance of counsel. Though we can discern no strategic or other legitimate explanation for this failure, this is not one of the "very rare" cases (People v Thompson, 21 NY3d 555, 559 [2013]) in which a single error "is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]; cf. People v Debellis, 40 NY3d 431, 438 [2023]; People v Harris, 26 NY3d 321, 327 [2015]; People v Turner, 5 NY3d 476, 481 [2005]). Overall, the record reflects that counsel pursued a rational trial strategy, delivered coherent opening and closing statements, and effectively cross-examined the People's witnesses, which efforts resulted in defendant's acquittal of the charge of driving while intoxicated per se. Therefore, defendant was afforded effective assistance of counsel under both the federal and state standards (see US Const Amend VI; NY Const, art I, § 6; Strickland v Washington, 466 US 668 [1984]; People v Thompson, 21 NY3d at 561; People v Witherspoon, 147 AD3d 985, 986 [2017]; People v Simpson, 61 Misc 3d 148[A], 2018 NY Slip Op 51743[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

Contrary to defendant's contention, the City Court's imposition of a $150 fine on their conviction of failing to obey a traffic control device was not excessive (see People v George, 237 AD3d 971, 973 [2025]; see generally CPL 470.15 [6] [b]; People v Brisman, ___ NY3d ___, 2025 NY Slip Op 00123 [2025]). However, in the exercise of this court's "broad, plenary power to modify a sentence" (People v Delgado, 80 NY2d 780, 783 [1992]; see generally People v Brisman, ___ NY3d ___, 2025 NY Slip Op 00123), upon a review of the record, we modify the judgment convicting defendant of common-law driving while intoxicated, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a term of incarceration (see People v Johnson, 114 AD3d 534, 534 [2014]; People v Ladyzinski, 114 AD2d 909, 910 [1985]; People v Kennedy, 49 Misc 3d 138[A], 2015 NY Slip Op 51564[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). We note that neither the Department of Probation nor the People recommended a sentence of incarceration.

Accordingly, the judgment convicting defendant of common-law driving while intoxicated is modified, as a matter of discretion in the interest of justice, by vacating the incarceration component of the sentence. The judgment convicting defendant of failing to obey a traffic control device is affirmed.

DRISCOLL, J.P., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 29, 2025

FOOTNOTES

1.   Defendant, who uses "they/them" pronouns, is referred to by their preferred pronouns throughout this decision & order.