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

253
KA 11-01852
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DOUGLAS L. JULIUS, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered June 30, 2011. The judgment convicted
defendant, upon a nonjury verdict, of driving while intoxicated, a
class D felony.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of felony driving while intoxicated ([DWI]
Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]). Contrary to
defendant’s contention, the evidence is legally sufficient to
establish that he operated a motor vehicle in an intoxicated condition
(see People v Rawleigh, 89 AD3d 1483, 1483; see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crime in this nonjury trial (see People v Danielson, 9
NY3d 342, 349), we reject defendant’s contention that the verdict is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

     Contrary to defendant’s further contention, County Court did not
err in permitting the arresting officer to testify regarding a
horizontal gaze nystagmus field sobriety test (HGN test) without
conducting a Frye hearing (see People v Tetrault, 53 AD3d 558, 558-
559, lv denied 11 NY3d 835; People v Hammond, 35 AD3d 905, 907, lv
denied 8 NY3d 946; People v Grune, 12 AD3d 944, 945, lv denied 4 NY3d
831). As the Second and Third Departments have stated, and we agree,
“ ‘[HGN] tests have been found to be accepted within the scientific
community as a reliable indicator of intoxication and, thus, a court
may take judicial notice of the HGN test’s acceptability’ ” (Tetrault,
53 AD3d at 559, quoting Hammond, 35 AD3d at 907). “Here, the People
laid a proper foundation; the officer who conducted the HGN test
testified regarding his qualifications to administer the test and the
                                 -2-                          253
                                                        KA 11-01852

techniques he employed” (Hammond, 35 AD3d at 907; see Tetrault, 53
AD3d at 559).

     Contrary to defendant’s additional contention, the sentence is
not unduly harsh or severe. Finally, we note that defendant has not
taken an appeal from the judgment revoking the sentence of probation
imposed in connection with a prior DWI conviction and imposing a
sentence of incarceration, and thus his challenge to the severity of
the sentence imposed upon the revocation of probation is not properly
before us (see CPL 460.10; see generally People v Kuras, 49 AD3d 1196,
1197, lv denied 10 NY3d 866).




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
