PEOPLE v. McGRAW

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

The PEOPLE of the State of New York, Respondent, v. Brett A. McGRAW, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ. Stephen R. Kornienko, Rochester, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of Counsel), for Respondent.

On appeal from a judgment convicting him upon a nonjury verdict of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (i) ] ), defendant contends that the evidence is legally insufficient to establish that he was intoxicated.   We reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the testimony of the Sheriff's deputies concerning defendant's reckless driving, physical condition, and inability to complete field sobriety tests, together with the inference that the refusal by defendant to take a chemical test demonstrated consciousness of guilt (see People v. Schuh, 4 A.D.3d 751, 752, 771 N.Y.S.2d 785, lv. denied 2 N.Y.3d 806, 781 N.Y.S.2d 305, 814 N.E.2d 477), is legally sufficient to establish that defendant operated his vehicle while intoxicated (see People v. Shank, 26 A.D.3d 812, 813-814, 808 N.Y.S.2d 533).   We further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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

MEMORANDUM: