PEOPLE v. BODEN

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. John David BODEN, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and BALIO, JJ. David R. Morabito, East Rochester, for Defendant-Appellant. David V. Shaw, Canton, for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him following a bench trial of felony driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3];  § 1193[1][c] ).   The People presented evidence establishing that defendant was seated in the driver's seat of a stationary vehicle with the engine running.   The vehicle was located partially on the road and partially in a parking lot.   The parties stipulated that defendant was intoxicated.   County Court did not find credible the testimony of defense witnesses that defendant was merely assisting his nephew in attempting to repair the vehicle, which had stalled (cf., People v. O'Connor, 159 Misc.2d 1072, 1073-1074, 607 N.Y.S.2d 856).   The court's credibility determination “should not be disturbed unless clearly unsupported by the record” (People v. Smith, 195 A.D.2d 580, 581, 601 N.Y.S.2d 836, lv. denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325).   Although “a different [result] would not have been unreasonable”, the record does not support defendant's contention that the court “failed to give the evidence the weight it should be accorded” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Judgment unanimously affirmed.

MEMORANDUM: