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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Scott McLEAN, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND HAYES, JJ. John E. Tyo, Shortsville, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated as a class D felony (Vehicle and Traffic Law § 1192[2], [3];  § 1193[1][c][ii] ), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a] ) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05[1] ).   Contrary to the contention of defendant, the evidence at the suppression hearing is sufficient to establish that his arrest was supported by probable cause (see People v. O'Hanlon, 5 A.D.3d 1012, 773 N.Y.S.2d 633, lv. denied 3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206;  People v. Tittensor, 244 A.D.2d 784, 666 N.Y.S.2d 267).   County Court properly admitted in evidence recordings of the 13 calls to 911 made by defendant prior to his arrest (see People v. Knight, 280 A.D.2d 937, 938-939, 721 N.Y.S.2d 166, lv. denied 96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121).   The court properly denied the request of defendant for a missing witness charge with respect to one of the passengers in the vehicle because there is no indication that the passenger was under the People's control (see People v. Farrow, 159 A.D.2d 376, 553 N.Y.S.2d 6, lv. denied 76 N.Y.2d 787, 559 N.Y.S.2d 993, 559 N.E.2d 687).   We reject defendant's contention that the verdict is against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.