        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

891
KA 11-01210
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEAN TUSZYNSKI, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered June 1, 2011. The judgment convicted defendant,
upon a jury verdict, of driving while intoxicated, a class D felony,
aggravated unlicensed operation of a motor vehicle in the first degree
and leaving the scene of an incident without reporting.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, driving while intoxicated as a class D felony
(Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]) and
aggravated unlicensed operation of a motor vehicle in the first degree
(§ 511 [3] [a] [i]), defendant contends that the verdict with respect
to those counts is contrary to the weight of the evidence with respect
to the issue of intoxication. We reject that contention.

     We note at the outset that the conviction of aggravated
unlicensed operation of a motor vehicle in the first degree does not
require proof of intoxication, and we thus reject defendant’s
contention with respect to that crime. Unlike the driving while
intoxicated count, which requires proof that defendant was intoxicated
(see Vehicle and Traffic Law § 1192 [3]), the aggravated unlicensed
operation of a motor vehicle in the first degree count may be
sustained upon proof that defendant was driving while his ability to
operate a motor vehicle was impaired pursuant to Vehicle and Traffic
Law § 1192 (1) (see People v Gelster, 256 AD2d 1133, 1133; see e.g.
People v Kaminski, 109 AD3d 1186, 1186, lv denied 22 NY3d 1088; People
v DeCarlis, 37 AD3d 1040, 1040, lv denied 8 NY3d 945), and it is well
settled that a “ ‘[c]onviction of [that] offense [does] not require
proof of intoxication, but only [requires proof] that defendant’s
driving ability was impaired to any extent’ ” by the consumption of
                                 -2-                           891
                                                         KA 11-01210

alcohol (People v McDonald, 27 AD3d 949, 950). Here, defendant
concedes in his brief that the weight of the evidence supports a
finding that his driving ability was impaired by his consumption of
alcohol.

     In any event, we conclude that the verdict is not against the
weight of the evidence on the issue of intoxication. “Where, as here,
witness credibility is of paramount importance to the determination of
guilt or innocence, we must give great deference to the jury, given
its opportunity to view the witnesses and observe their demeanor”
(People v Streeter, 118 AD3d 1287, 1288 [internal quotation marks
omitted]; see People v Roman, 107 AD3d 1441, 1442-1443, lv denied 21
NY3d 1045; People v Scott, 107 AD3d 1635, 1636, lv denied 21 NY3d
1077). “Viewing the evidence in a neutral light and weighing the
probative value of the conflicting testimony and the conflicting
inferences that could be drawn, while deferring to the jurors’ ability
to observe the witnesses and assess their credibility, aided by the
video recording, we find that it was not contrary to the weight of the
credible evidence for the jury to find that defendant” was intoxicated
(People v Purvis, 90 AD3d 1339, 1341, lv denied 18 NY3d 997; see
generally People v Bleakley, 69 NY2d 490, 495).

     Defendant further contends that the persistent felony offender
statutory scheme is unconstitutional in light of the rule in Apprendi
v New Jersey (530 US 466). To the contrary, it is well settled that
Penal Law § 70.10 and CPL 400.20 are constitutional (see People v
Battles, 16 NY3d 54, 59, cert denied ___ US ___, 132 S Ct 123; People
v Quinones, 12 NY3d 116, 122-131, cert denied 558 US 821). Finally,
the sentence is not unduly harsh or severe.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
