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 reentering 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