Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Pauline A. Mullings, J.), rendered October 15, 2004. The judgment convicted defendant, after a nonjury trial, of driving while intoxicated per se.

Judgment of conviction affirmed.

Defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]). The evidence established that defendant was asleep, slumped over the steering wheel of a motor vehicle which was parked on the street, the key was in the ignition and the engine was running. The defendant's blood alcohol level was .219 of one percent. The arresting officer testified that defendant stated that he had "just
parked [the] vehicle" and that he "was going home." The fact that defendant claims that he had no intent to operate the vehicle so as to put it in motion merely presented a credibility issue for the trier of fact to determine (see People v Moore, 196 Misc 2d 120, 121 [App Term, 9th & 10th Jud Dists 2002]). We find no reason to reject the trier's assessment of the witnesses' credibility or to conclude that the court failed to give the evidence the weight it should be accorded (see People v Bleakley, 69 NY2d 490, 495 [1987]). Accordingly, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).

Defendant's remaining issue, that the prosecutor was guilty of misconduct, is not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Garing, 37 AD3d 849, 850 [2007]).

Pesce, P.J., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: September 13, 2007