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

44
KA 10-01637
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL L. FRANCO, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen K. Lindley, J.), rendered January 4, 2010. 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: On appeal from a judgment convicting him following a
nonjury trial of felony driving while intoxicated (Vehicle and Traffic
Law §§ 1192 [3]; 1193 [1] [c] [i]), defendant contends that the
verdict is against the weight of the evidence. We reject that
contention. Viewing the evidence in light of the elements of the
crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349),
we conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). The sole witness
at trial was the State Trooper who stopped defendant’s vehicle after
observing defendant’s reckless driving. He testified that he could
smell the odor of alcohol on defendant’s breath, defendant’s eyes were
bloodshot, glassy, and watery, and defendant periodically mumbled as
he spoke, even though he was generally understandable. The Trooper
further testified that he administered six field sobriety tests, all
but one of which defendant failed. Finally, there is “a record basis
to show that, through words or actions, defendant declined to take a
chemical test despite having been clearly warned of the consequences
of refusal,” and such refusal is admissible as consciousness of guilt
(People v Smith, 18 NY3d 544, 551; see People v McGraw, 57 AD3d 1516,
1517; People v Gallup, 302 AD2d 681, 683, lv denied 100 NY2d 594; see
generally § 1194 [2] [f]). We conclude that Supreme Court did not
fail to give the evidence the weight it should be accorded, and thus
the verdict is not against the weight of the evidence (see McGraw, 57
                                 -2-                            44
                                                         KA 10-01637

AD3d at 1517; see generally Bleakley, 69 NY2d at 495).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
