Appeal from judgments of the District Court of Nassau County, First District (Tricia M. Ferrell, J.), rendered November 10, 2010. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated and refusing to submit to a field breath test, respectively.

ORDERED that the judgment convicting defendant of refusing to submit to a field breath test is reversed, on the law, the accusatory instrument underlying this judgment of conviction is dismissed, and the surcharges and fees imposed as part of this conviction, if paid, are remitted; and it is further,

ORDERED that the judgment convicting defendant of driving while intoxicated is affirmed.

In separate simplified traffic informations, defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and refusing to submit to a field breath test (Vehicle and Traffic Law § 1194 [1] [b]), respectively. Following a jury trial, defendant was convicted of both charges.

In People v Salerno (36 Misc 3d 151[A], 2012 NY Slip Op 51699[U], *2 [App Term, 9th & 10th Jud Dists 2012]), this court held that a charge of refusing to submit to a breath test pursuant to Vehicle and Traffic Law § 1194 (1) (b) "does not make out a cognizable offense" (id.; see also People v Graziano, 19 Misc 3d 133[A], 2008 NY Slip Op 50692[U] [App Term, 9th & 10th Jud Dists 2008] cf. People v Cunningham, 95 NY2d 909 [2000], amended 95 NY2d 949 [2000]). Accordingly, the judgment convicting defendant of violating Vehicle and Traffic Law § 1194 (1) (b) is reversed and the accusatory instrument underlying this judgment of conviction is dismissed.
On appeal, defendant contends that the simplified traffic information charging him with driving while intoxicated is jurisdictionally defective. Upon a review of the accusatory instrument, we find that it is not jurisdictionally defective, since it designates the offense charged, substantially conforms to the form prescribed by the Commissioner of Motor Vehicles and provides the court with sufficient information to establish that it has jurisdiction to hear the case (see CPL 100.10 [2] [a] 100.25 [1] 100.40 [2] People v Fernandez, 20 NY3d 44 [2012] People v Key, 45 NY2d 111, 116 [1978] People v Bize, 30 Misc 3d 68 [App Term, 9th & 10th Jud Dists 2010] People v Ferro, 22 Misc 3d 7 [App Term, 9th & 10th Jud Dists 2008]). Moreover, the simplified traffic information, along with the supporting deposition, provides reasonable cause to believe that defendant committed the charged offense (see CPL 100.25 [2] People v Key, 45 NY2d at 116).

Defendant further contends that the District Court committed reversible error in denying his challenge for cause to a prospective juror, thereby necessitating that he peremptorily challenge this juror. Defendant exhausted his peremptory challenges before the completion of jury selection (see CPL 270.20 [2]). During voir dire, the juror stated that she was against drunk driving, that she used to be a member of Mothers Against Drunk Driving and that her daughter was a member of Students Against Destructive Decisions. Upon a review of the record, we find [*2]that the court did not improvidently exercise its discretion in denying defendant's challenge for cause, since the juror provided unequivocal and unambiguous assurance that she could reach a fair and impartial verdict (see People v Williams, 63 NY2d 882, 884-885 [1984] People v Russell, 55 AD3d 940 [2008] cf. People v McGuire, 101 AD3d 1386 [2012] [the juror did not unequivocally express his ability to be fair and render a verdict based solely on the evidence]).

In addition, defendant contends that the evidence adduced at trial was legally insufficient to establish that he operated a vehicle, and that, in any event, the verdict was against the weight of the evidence. A defendant is guilty of driving while intoxicated if the People establish, beyond a reasonable doubt, that he operated a motor vehicle while in an intoxicated condition. To obtain such a conviction, however, "there is no requirement that the defendant be observed driving the vehicle; instead, operation of a vehicle can be proven by circumstantial evidence" (People v Salerno, 36 Misc 3d 151[A], 2012 NY Slip Op 51699[U], *2; see also People v Blake, 5 NY2d 118, 120 [1958] People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U], *2 [App Term, 9th & 10th Jud Dists 2012]). In the case at bar, a police officer testified that he had responded to the scene of an accident, where he had observed defendant exiting, feet first, from a vehicle which was overturned in the middle of the road and, as defendant was exiting the vehicle, an empty bottle of brandy fell to the ground. Although the officer initially testified that he had observed defendant exiting through the driver's side window, he testified on cross-examination that defendant could have been exiting through the passenger's side window. The officer further testified that he had observed that defendant had red, glassy, bloodshot eyes, was unsteady on his feet, and had slurred speech. The officer also detected the odor of an alcoholic beverage emanating from defendant, and stated that defendant had told him that "he was trying to avoid a parked car." Another officer, who had first encountered defendant at the precinct, testified that, in response to a question, defendant had told him that he was not the driver that night.

Viewing the foregoing evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of driving while intoxicated beyond a reasonable doubt. Furthermore, 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 347 [2007]), and according appropriate deference to the trial court's credibility determinations, based on its particular opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383, 410 [2004] People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Defendant's remaining contentions are either unpreserved for appellate review or lack merit.

Accordingly, the judgment convicting defendant of driving while intoxicated is affirmed.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 31, 2014