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

999
KA 12-00941
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                             MEMORANDUM AND ORDER

MARY SEGATOL-ISLAMI, DEFENDANT-APPELLANT.


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered July 29, 2011. The judgment convicted
defendant, upon a nonjury verdict, of driving while intoxicated, a
class E felony.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon a nonjury verdict of felony driving while intoxicated (Vehicle
and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]). Contrary to
defendant’s contention, the evidence is legally sufficient to
establish that she was the operator of her motor vehicle. A witness
testified that he saw defendant drive her vehicle into a liquor store
parking lot and park the vehicle, running over a parking block in the
process. We reject defendant’s contention that the testimony of that
witness was incredible as a matter of law (see People v Meacham, 84
AD3d 1713, 1715, lv denied 17 NY3d 808), i.e., “ ‘manifestly untrue,
physically impossible, contrary to experience, or
self-contradictory’ ” (People v Gaston, 104 AD3d 1206, 1207, lv denied
22 NY3d 1156). Indeed, that witness’s testimony was confirmed by the
testimony of a police sergeant who observed the intoxicated defendant
leaving the liquor store and approach her vehicle. Although the
police sergeant testified that he never observed defendant operate her
vehicle, he further testified that the parking block in front of her
vehicle was displaced diagonally by 1 ½ to 2 feet, that there was no
one else with her as she attempted to enter the driver’s seat of her
vehicle, and that she had a key to her vehicle in her purse.

     While we agree   with defendant that County Court erred in
concluding that she   could not waive her presence for the testimony of
a potential witness   (see generally People v Parker, 57 NY2d 136, 139-
140; People v Epps,   37 NY2d 343, 349-351, cert denied 423 US 999;
                                 -2-                           999
                                                         KA 12-00941

People v Porter, 201 AD2d 881, 881-882, lv denied 83 NY2d 857), we
conclude that the error had no impact on her decision to rest her case
without calling that witness to testify. Defendant contends that the
error prejudiced her because she chose to rest her case so that she
could start an inpatient treatment program on the next day scheduled
for trial. The court, however, informed defendant that it would not
release her from jail until the trial was completed, and the proposed
witness could not testify until the next trial date. We therefore
conclude that defendant could not have entered the treatment program
even if she was absent during her proposed witness’s testimony.

     Finally, we have reviewed defendant’s challenge to the sentence
of probation to be served after the indeterminate term of
incarceration and conclude that it is without merit (see generally
Vehicle and Traffic Law § 1193 [1] [c] [iii]; Penal Law § 60.21).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
