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

1380
KA 08-02005
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUIS A. GONZALEZ, DEFENDANT-APPELLANT.


CHRISTINE M. COOK, SYRACUSE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered September 22, 2006. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated and
driving while ability impaired by drugs and, upon a nonjury verdict,
of aggravated unlicensed operation of a motor vehicle in the first
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of driving while intoxicated ([DWI] Vehicle and
Traffic Law § 1192 [3]) and driving while ability impaired by drugs
([DWAI] § 1192 [4]), and convicting him, pursuant to a “stipulation,”
of aggravated unlicensed operation of a motor vehicle in the first
degree (§ 511 [3] [a]). According to the evidence presented at trial,
two police officers in separate patrol cars observed defendant
operating a motor vehicle while talking on his cellular telephone.
They further observed that he was not wearing his seatbelt, and was
improperly driving down the middle of the roadway. When the officers
stopped defendant’s vehicle, defendant pulled into a private driveway
and, in the process of doing so, he struck the curb, drove onto the
lawn, and failed to use his turn signal. Defendant then exited the
vehicle but was ordered back into the vehicle. He had trouble re-
entering the vehicle, and stated that he was in a lot of pain. The
officers detected the odor of alcohol and noticed that defendant’s
eyes were bloodshot and glassy and that his speech was slurred.
Defendant admitted that, approximately one hour prior to the traffic
stop, he drank one beer and took two Vicodin, which were prescribed to
him for pain. Defendant submitted to several field sobriety tests,
which led the officers to conclude that he was intoxicated by alcohol
or impaired by drugs. Defendant was arrested and refused to submit to
a breathalyzer test or a blood test.
                                 -2-                          1380
                                                         KA 08-02005

     Defendant contends on appeal that the evidence at trial
established only that he was allegedly impaired by the combined
effects of alcohol and Vicodin, and that the convictions of DWI and
DWAI must be reversed because the People failed to present the
requisite evidence of impairment by each of the substances separately.
We reject that contention, inasmuch as the evidence presented at trial
is sufficient to establish that he was separately impaired by alcohol
and by drugs.

     A conviction of DWI under Vehicle and Traffic Law § 1192 (3) may
be based upon “evidence that [a defendant] failed all his field
sobriety tests, smelled of alcohol, had glassy eyes and slurred his
speech” (People v Scroger, 35 AD3d 1218, lv denied 8 NY3d 950). Here,
the officers found that defendant exhibited all of those traits when
he was pulled over. We thus conclude that the evidence is legally
sufficient to support the DWI conviction, exclusive of the evidence
presented in support of the DWAI conviction (see generally People v
Bleakley, 69 NY2d 490, 495).

     With respect to the DWAI conviction, the jury had to find that
defendant ingested a drug listed in Public Health Law § 3306, that
defendant operated a motor vehicle, and that his ability to operate
the motor vehicle was impaired by the drug (see Vehicle and Traffic
Law §§ 114-a, 1192 [4]). Here, defendant admitted to the officers
during the traffic stop and he testified at trial that, approximately
one hour prior to the traffic stop, he ingested two Vicodin. A
pharmacist testified for the People that Vicodin is also known as
hydrocodone, and we note that hydrocodone is a drug listed in Public
Health Law § 3306 (Schedule II [b] [1] [10]). The pharmacist further
explained that Vicodin, “or hydrocodone,” is a central nervous system
depressant. We thus conclude that the evidence, i.e., the testimony
of the arresting officers regarding defendant’s actions during the
traffic stop, defendant’s admission that he took the Vicodin, and the
testimony of the pharmacist, is legally sufficient to support the DWAI
conviction, exclusive of the evidence presented in support of the DWI
conviction (see generally Bleakley, 69 NY2d at 495).

     Finally, defendant’s challenge to the severity of the sentence is
equally without merit, particularly in view of his prior DWI
convictions.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
