Appeal from a judgment of the City Court of White Plains, Westchester County (Barbara A. Leak, J.), rendered January 14, 2013. The judgment convicted defendant, after a nonjury trial, of endangering the welfare of a child.

ORDERED that the judgment of conviction is affirmed.

The evidence at a nonjury trial established that, during the late afternoon of July 16, 2012, defendant, accompanied by his eight-year-old son, arrived at the Westchester County Department of Probation for a scheduled appointment with his probation officer. Defendant exhibited significant signs of intoxication during his appointment. A probation officer administered an"alcosensor" breath test, which indicated the presence of alcohol and that defendant's blood alcohol content was 0.129. A probation officer also administered a urine test, which indicated the presence of metabolites of marijuana and cocaine in defendant's system. Defendant was in possession of a key to a Nissan Maxima. He informed probation officers that the vehicle had Maine license plates. Probation officers found the vehicle, which was parked less than one block from the probation department. A probation officer opened the door and started the ignition with the key. Defendant was convicted of endangering the welfare of a child (Penal Law § 260.10 [1]), on the basis that had driven his vehicle to the probation department, with his son as a passenger, while intoxicated and impaired by drugs.

The trial court erred in admitting into evidence the fact that the alocsensor test had measured defendant's blood alcohol content at 0.129 to establish that he had been intoxicated when he had reported to the probation department. It is well settled that the result of an alcosensor test is admissible only as evidence that alcohol is present in a person's system; it is not admissible as evidence of a person's blood alcohol content (see People v Thomas, 121 AD2d 73, 75-79 [1986], affd 70 NY2d 823 [1987] People v McDonald, 227 AD2d 672, 674 [1996], affd 89 NY2d 908 [1996] People v Wright, 1 Misc 3d 133[A], 2003 NY Slip Op 51635[U] [App Term, 9th & 10th Jud Dists 2003] cf. People v O'Reilly, 16 Misc 3d 775, 779 [Suffolk Dist Ct 2007] People v Jones, 10 Misc 3d 413, 415-417 [Dutchess County Ct 2005]). In this case, the result of the alcosensor test should have been admitted only to establish that alcohol was present in defendant's system. Despite this error, defendant's conviction should be affirmed.

Contrary to defendant's contention, the evidence was legally sufficient to establish defendant's guilt of endangering the welfare of a child. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), there is a "valid line of [*2]reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial" (People v Hines, 97 NY2d 56, 62 [2001] [internal quotation marks omitted] see People v Dekenipp, 105 AD3d 1346 [2013] People v Hepp, 40 AD3d 880, 881-882 [2007] see also People v Neil, 30 AD3d 901 [2006] People v Perry, 14 Misc 3d 131[A], 2007 NY Slip Op 50069[U] [App Term, 1st Dept 2007]).

The direct evidence established that, accompanied by his eight-year-old son, defendant entered the probation department, with red, glassy, watery eyes, and the odor of alcohol on his breath. His speech was slurred, his motor coordination was impaired, he was unsteady on his feet, and he acted in a loud and boisterous manner. He tested positive for the presence of alcohol, and for metabolites of marijuana and cocaine (see People v Alexander, 4 Misc 3d 133[A], 2004 NY Slip Op 50730[U] [App Term, 9th & 10th Jud Dists 2004]). Circumstantial evidence established that defendant had operated a Nissan Maxima with Maine license plates that was parked less than one block from the probation department. Defendant possessed the key that opened and started the car. Thus, the evidence was legally sufficient to support defendant's conviction of endangering the welfare of a child by operating a vehicle with a child inside while intoxicated and impaired by drugs, as it was likely, not merely possible, that harm would occur to defendant's child (see Penal Law § 260.10 [1] Vehicle and Traffic Law §§ 1192 [3], [4], [4-a] 1193 [1] [b] People v Hitchcock, 98 NY2d 586, 591 [2002] People v Johnson, 95 NY2d 368, 371-372 [2000] People v Simmons, 92 NY2d 829 [1998] People v Blake, 5 NY2d 118, 120 [1958] People v Dekenipp, 105 AD3d at 1347-1348; People v Ciccone, 90 AD3d 1141, 1143-1144 [2011] People v West, 257 AD2d 767, 768 [1999] People v Atkinson, 42 Misc 3d 139[A], 2014 NY Slip Op 50169[U] [App Term, 9th & 10th Jud Dists 2014] People v Hill, 16 Misc 3d 176, 179-180 [Crim Ct, NY County 2007] People v D'Ambrosia, 192 Misc 2d 560 [Brighton Justice Court 2002] cf. People v Rogalski, 93 AD3d 1322 [2012] People v Omwathath, 39 Misc 3d 41 [App Term, 2d, 11th & 13th Jud Dists 2013] People v Chase, 186 Misc 2d 487 [App Term, 9th & 10th Jud Dists 2000]).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5] People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity at the trial 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 verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: May 09, 2014