PEOPLE v. DOLAN

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. John DOLAN, Defendant-Appellant.

Decided: September 26, 2003

PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices. Cravath, Swaine & Moore, New York City (Andrew C. Fine, Désirée Sheridan, of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York City (Alan Gadlin, Susan Gliner, David Aaron and Meredith Boylan, of counsel), for plaintiff.

Judgment of conviction rendered July 9, 1999 (A. Kirke Bartley, Jr., J.) affirmed.

 Defendant's challenge to the sufficiency of the evidence is unpreserved for appellate review, since defendant merely moved for a general trial order of dismissal and did not raise the alleged insufficiencies now urged on appeal (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, were we to review, we would find that the driving element of the driving while intoxicated offenses here charged was established beyond a reasonable doubt by credited prosecution testimony that moments after the vehicular collision defendant was found seated in the driver's seat of his otherwise unoccupied car with seatbelt fastened and airbag deployed, as well as defendant's own statements concerning the events immediately preceding the accident (see, People v. Charland, 194 A.D.2d 827, 598 N.Y.S.2d 606; People v. Saplin, 122 A.D.2d 498, 505 N.Y.S.2d 460, lv. denied 68 N.Y.2d 817, 507 N.Y.S.2d 1035, 499 N.E.2d 884). Upon an independent review of the facts, we are satisfied that the verdict was not against the weight of the evidence.

The court properly exercised its discretion in denying defendant's CPL 330.30(3) motion without a hearing, since defendant's motion papers failed to contain sworn allegations of fact (CPL 330.40[2][e][ii]) and the purported newly discovered evidence was not shown to have been undiscoverable prior to or during trial and was not of such

nature that it would probably change the result if a new trial were held (see, People v. Taylor, 246 A.D.2d 410, 411-412, 668 N.Y.S.2d 583, lv. denied 91 N.Y.2d 978, 672 N.Y.S.2d 857, 695 N.E.2d 726).

 Also unavailing is defendant's contention that the accusatory instrument was jurisdictionally defective by failing to include nonhearsay allegations supporting the charged offenses. The factual portion of the underlying misdemeanor information contained defendant's statement at the accident scene, “I was driving and the guy in front of me slammed on his brakes.” Defendant's statement, which was clearly inculpatory, was nonhearsay (see, Matter of Rodney J., 108 A.D.2d 307, 311, 489 N.Y.S.2d 160; Matter of Christopher P., 260 A.D.2d 212, 213, 688 N.Y.S.2d 520; Matter of Todd Z., 295 A.D.2d 652, 653, 743 N.Y.S.2d 190). To the extent that the confession corroboration requirement of CPL 60.50 is properly applied in the context of this misdemeanor prosecution (compare, People v. Kaminiski, 143 Misc.2d 1089, 542 N.Y.S.2d 923, with People v. Heller, 180 Misc.2d 160, 689 N.Y.S.2d 327; see also, Matter of Rodney J., 108 A.D.2d 307, 489 N.Y.S.2d 160), the requirement was satisfied by the information herein, which contains nonhearsay allegations based upon the arresting police officer's own observations sufficiently corroborating the occurrence of the offense (see, People v. Olwes, 191 Misc.2d 275, 279-280, 742 N.Y.S.2d 783; see also, People v. Booden, 69 N.Y.2d 185, 513 N.Y.S.2d 87, 505 N.E.2d 598).

Defendant's remaining arguments are either unpreserved for review or lacking in merit.

This constitutes the decision and order of the court.

PER CURIAM: