Appeal from judgments of the Justice Court of the Village of Mamaroneck, Westchester County (Christie L. Derrico, J.), rendered August 8, 2011. The judgments convicted defendant, after a nonjury trial, of driving while intoxicated per se and driving while intoxicated, respectively.

ORDERED that the judgments of conviction are affirmed.

In separate simplified traffic informations, defendant was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). At a nonjury trial, the Justice Court, over defendant's objection, allowed the admission into evidence of a recording of a 911 call as a present sense impression. The caller, who did not testify at trial, stated, among other things, that she had observed an older white male driving a red vehicle, with body damage, which she saw crash into numerous trees. She also stated that she observed a black male passenger in the vehicle. The caller informed the 911 operator that she was contemporaneously viewing the vehicle, which was then located [*2]behind a particular building. The caller told the operator that she saw police cars in the area, gave directions as to how the police cars should proceed to locate the vehicle and remained on the phone until after she had observed the officers approach the vehicle.

The arresting officer testified that, when he had arrived at the scene, he had observed damaged trees and a red vehicle which had body damage. When he proceeded to the driver's side of the vehicle, he observed a black male in the driver's seat and defendant, a white male, in the passenger's seat. He also testified that "based upon information I could gather, I determined that the operator was the person in the passenger seat prior to the accident." On cross-examination, upon the application of defendant's trial attorney, the officer's case narrative report was admitted into evidence. This report contained a summary of the black male's statement that defendant "had been operating the vehicle before they switched seats because it was evident that [defendant] was too drunk to drive." The People rested, and defendant called no witnesses in his defense. Defendant was subsequently convicted of both charges.

Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of driving while intoxicated per se and driving while intoxicated. Moreover, in fulfilling this court's responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), great deference should be accorded to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the verdicts convicting defendant of driving while intoxicated per se and driving while intoxicated were not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

Furthermore, we find that defendant's attorney provided meaningful representation in accordance with the state standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 [1995]; People v Johnson, 71 AD3d 1048 [2010]) and that the
attorney's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 [1984]).

Accordingly, the judgments of conviction are affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur. [*3]
Decision Date: September 05, 2013