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

1455
KA 13-00721
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GARY CHAPPELL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered March 26, 2013. The judgment
convicted defendant, upon a nonjury verdict, of driving while ability
impaired, aggravated unlicensed operation of a motor vehicle in the
first degree and speeding.

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

     Memorandum: Defendant appeals from a judgment convicting him,
following a nonjury trial, of driving while ability impaired (Vehicle
and Traffic Law § 1192 [1]), aggravated unlicensed operation of a
motor vehicle in the first degree (§ 511 [3] [a] [i]), and speeding (§
1180 [d]). We reject defendant’s contention that the evidence is
legally insufficient to support the conviction. The arresting officer
testified that, after he stopped defendant’s vehicle for speeding,
defendant had glassy eyes and slurred speech, and he smelled of
alcohol. In addition, defendant failed three of four field sobriety
tests and refused to submit to a chemical test. That evidence, viewed
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), is legally sufficient to establish that defendant
operated a motor vehicle while his ability to do so was impaired by
alcohol (see People v McDonald, 27 AD3d 949, 950). The evidence is
also legally sufficient to support the conviction of aggravated
unlicensed operation of a motor vehicle in the first degree (see
People v Jarocha, 66 AD3d 1384, 1384, lv denied 13 NY3d 908). With
respect to the speeding conviction, we conclude that, “even if the
radar evidence standing alone were deemed insufficient to support the
conviction, there is additional evidence here that sufficiently
corroborates the accuracy of the radar reading so as to establish
defendant’s guilt beyond a reasonable doubt” (People v Knight, 72 NY2d
481, 488). Viewing the evidence in light of the elements of the
                                 -2-                          1455
                                                         KA 13-00721

offenses in this bench trial (see People v Danielson, 9 NY3d 342,
349), we further conclude that the verdict is not against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Finally, we agree with the People that defendant’s attorney was not
ineffective in failing to make a suppression motion “that ha[d] little
or no chance of success” (People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
