Appeal from a judgment of the Justice Court of the Town of East Fishkill, Dutchess County (Frederick D. Romig, J.), rendered January 28, 2020. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired, and imposed sentence. ORDERED that the judgment of conviction is reversed, on the facts, and the accusatory instrument is dismissed. Defendant was ultimately charged in three simplified traffic informations with, respectively, driving while ability impaired (Vehicle and Traffic Law §1192 [1]), leaving the scene of an accident without reporting property damage (Vehicle and Traffic Law §600 [1] [a]) and making an unsafe lane change (Vehicle and Traffic Law §1128 [a]). At a nonjury trial, the arresting New York State trooper testified that, on April 5, 2019 at approximately 9:52 p.m., he received a radio run for “a one-car, property damage auto accident.” He arrived at the location 8-10 minutes later, where he observed a pickup truck registered to defendant abandoned on the side of the road, stuck atop a tree stump a few hundred yards from defendant’s home. Thirteen empty beer cans were inside the bed of the pickup truck. The trooper went to defendant’s home to investigate, and defendant invited him inside. The trooper testified that he “could immediately tell that [defendant] was highly intoxicated just the way that he was moving and uncoordinated, seemed to not be able to have any kind of motor coordination.” According to the trooper, there also was a “strong odor of alcoholic beverage [sic] emanating from [defendant]. His eyes [were] extremely glassy and his speech was very slurred.” Defendant told the trooper that he had drunk three beers at a local bar; he did not admit to drinking anything else. The trooper explained that he was investigating the accident involving defendant’s pickup truck. Defendant told the trooper that, as he was driving home, he swerved his vehicle to avoid colliding with a deer that had darted into the road. Defendant failed each of three standardized field sobriety tests and was arrested on suspicion of driving while intoxicated. Back at the police barracks, defendant consented to chemical analysis of his breath, which returned a 0.21 percent blood alcohol content (BAC), more than 2½ times the legal limit for adult drivers. The trooper testified that defendant’s high BAC level was “very consistent with everything I observed from [] defendant['s]” behavior at his home. Defendant, a builder, testified that, after work, he had met with a friend at a local bar where he had one beer. While driving home, he swerved his pickup truck to avoid hitting a deer. He explained that his truck became lodged atop a tree stump off of the road, and he was unable to move it. Because it was dark, cold and rainy, and he needed to feed his cat, defendant left his truck and walked home. Once home, cold and frustrated about his predicament, defendant drank two more beers, as well as an unspecified quantity of Johnnie Walker Red Label scotch directly from the bottle. The prosecution did not dispute, while cross-examining defendant or during summations, defendant’s assertion that the trooper did not come to his home until approximately two hours after the accident. Defendant testified that a can of beer was sitting on the dining room table near where he interacted with the trooper in his home. However, defendant believed that the trooper did not see the bottle of scotch, as it was in the kitchen, where the trooper never went. The court acquitted defendant of leaving the scene of an accident without reporting property damage and making an unsafe lane change, and convicted him of driving while ability impaired, and imposed sentence. On appeal, defendant argues, in effect, that his conviction was against the weight of the evidence. “In exercising our factual review power, we must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Blackman, 66 Misc 3d 145[A], 2020 NY Slip Op 50202[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2020] [citations omitted]; see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348 [2007]). In this case, an acquittal would not have been unreasonable. Defendant’s testimony that, after getting home and feeling the weight of his frustration, he drank more beers and scotch to the point of extreme intoxication, is not incredible. In light of the People’s inability to refute defendant’s reasonable and internally consistent explanation for how he became intoxicated during the two-hour time period between the accident and the trooper’s arrival at his doorstep, and defendant’s explanation for the accident, there was reasonable doubt as to whether defendant was intoxicated at the time he was driving. The apparent contradiction between defendant’s testimony about how much, and what type of, alcohol he drank and when he drank each type, and the trooper’s testimony about what defendant told him, is easily explained away by defendant’s extreme intoxication, as observed by the trooper. Although multiple empty beer cans were in the bed of defendant’s truck, there was absolutely no evidence concerning how long they had been there, or that defendant had drunk any of them prior to, or while, driving. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed. RUDERMAN, P.J., GARGUILO and DRISCOLL, JJ., concur. Dated: June 17, 2021
