                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 5, 2017                   107361
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MICHAEL B. DUNSTER II,
                    Appellant.
________________________________


Calendar Date:   November 17, 2016

Before:   Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

                             __________


     John A. Cirando, Syracuse, for appellant.

      William G. Gabor, District Attorney, Wampsville (Elizabeth
S. Healy of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the County Court of Madison
County (McDermott, J.), rendered December 11, 2014, upon a
verdict convicting defendant of the crime of driving while
intoxicated.

      On the morning of November 29, 2013, two City of Oneida
police officers were dispatched to investigate a report of a
vehicle found resting against a tree in a local park. When they
arrived, the officers observed tire tracks in the snow leading
from the roadway to the vehicle's resting place and no footprints
in the area surrounding the vehicle. Upon approaching the
vehicle, the officers found defendant asleep in the driver's seat
and the keys in the ignition. They knocked on the window for
several minutes until they eventually roused defendant, who –
                              -2-                107361

upon observing the officers – immediately took the keys out of
the ignition and threw them over to the passenger side of the
vehicle. When defendant eventually complied with their requests
to exit the vehicle, the officers detected a strong odor of
alcohol and observed an open can of beer in the center console.
Both officers also testified that defendant's eyes were glassy,
his speech was slurred and he was staggering and using the
vehicle to maintain his balance. Defendant refused to submit to
field sobriety tests and an Alko-sensor test, and was ultimately
placed under arrest for driving while intoxicated.

      Following a jury trial, defendant was convicted as charged
of driving while intoxicated as a felony (see Vehicle and Traffic
Law §§ 1192 [3]; 1193 [1] [c] [i]) and sentenced to a prison term
of 1 to 3 years, with the recommendation that he be allowed to
participate in the shock incarceration program. He appeals,
arguing that his conviction is not supported by legally
sufficient evidence, that the verdict is contrary to the weight
of the evidence and that his sentence is unduly harsh and
excessive.

      Viewing the evidence in the light most favorable to the
People, we find a valid line of reasoning and permissible
inferences from which a rational jury could conclude beyond a
reasonable doubt that defendant was operating the motor vehicle
in question while he was in an intoxicated condition (see Vehicle
and Traffic Law § 1192 [3]; see generally People v Reed, 22 NY3d
530, 534 [2014]; People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant was found alone, asleep behind the wheel of a car that
had left the roadway, crossed over a basketball court and come to
rest in an area not designated for parking. The keys were in the
ignition, no footprints were observed in the snow leading away
from the vehicle and a single empty beer can was discovered in
the vehicle. In our view, the established facts and the
reasonable inferences to be drawn therefrom, in conjunction with
the proof of defendant's impaired condition and refusal to submit
to a chemical test, "point logically to [his] operation of the
automobile while intoxicated, even though there is no direct
proof that he drove [the vehicle]" (People v Blake, 5 NY2d 118,
120 [1958]; see People v Annis, 126 AD3d 1525, 1526 [2015];
People v Shaffer, 95 AD3d 1365, 1366-1367 [2012]; People v Panek,
                              -3-                  107361

305 AD2d 1098, 1098 [2003], lv denied 100 NY2d 623 [2003]; People
v Charland, 194 AD2d 827, 827-828 [1993]; People v Saplin, 122
AD2d 498, 498-499 [1986], lv denied 68 NY2d 817 [1986]).
Further, evaluating the evidence in a neutral light and extending
appropriate deference to the jury's resolution of credibility
issues, we find that the verdict is also in accord with the
weight of the evidence (see People v Annis, 126 AD3d at 1526;
People v Hamm, 29 AD3d 1079, 1080-1081 [2006]; People v Ingram, 3
AD3d 791, 792-793 [2004]; People v Panek, 305 AD2d at 1098).

      Finally, we are unpersuaded by defendant's contention that
his sentence was unduly harsh and excessive. Defendant has a
lengthy criminal history, which includes a prior driving while
intoxicated conviction and various other offenses resulting from
his alcohol problem. Several attempts at treatment have proved
unsuccessful. County Court acknowledged defendant's issues with
alcohol and reasoned that a sentence in state prison, as opposed
to one in the local jail, would be more likely to assist in
defendant's rehabilitation because he would have the opportunity
to participate in the shock incarceration program in that venue.
Under these circumstances, we find no abuse of discretion or
extraordinary circumstances warranting a modification of
defendant's sentence (see People v Donaldson, 46 AD3d 1109, 1110
[2007]; People v Hamm, 29 AD3d 1158, 1160 [2006], lv denied 7
NY3d 848 [2006]; People v Arnold, 2 AD3d 975, 976-977 [2003], lv
denied 1 NY3d 594 [2004]).

     Garry, Devine, Mulvey and Aarons, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
