By: Hagler, P.J., Brigantti, James, JJ.
22-047. THE PEOPLE OF THE STATE OF NEW YORK, res v. JODI RIERA, def-app — Judgment of conviction (Jeffrey M. Zimmerman, J.), rendered November 14, 2019, modified, as a matter of discretion in the interest of justice, to vacate defendant’s conviction of driving while ability impaired and to dismiss the count of the accusatory instrument relating thereto; as modified, judgment of conviction affirmed. The verdict convicting defendant of driving while intoxicated per se (see Vehicle and Traffic Law §1192[2]), driving while intoxicated (see Vehicle and Traffic Law §1192[3]), and driving while ability impaired by alcohol (see Vehicle and Traffic Law §1192[1]) was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). Defendant’s vehicle was speeding and swerving outside of its lane of traffic at approximately 2:00 am, his eyes were red and watery, he was unsteady on his feet, there was a strong smell of alcohol coming from his breath (see People v. Cruz, 48 NY2d 419, 426-427 [1979], appeal dismissed 446 US 901 [1980]), and his blood alcohol content, as measured by the Intoxilyzer 5000 EN, was an “insufficient sample” reading of .11 percent (see Vehicle and Traffic Law §1192[2]; People v. DeMarasse, 85 NY2d 842, 845 [1995]; People v. Mertz, 68 NY2d 136 [1986]). However, driving while ability impaired is a lesser included offense of the charge of driving while intoxicated (see People v. Hoag, 51 NY2d 632, 634 [1981]). Since the defendant’s conviction of a greater count is deemed a dismissal of a lesser count pursuant to CPL 300.40(3)(b), we vacate the defendant’s conviction for driving while impaired. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
