The People of the State of New York, Respondent,
Howard L. Donhauser, Jr., Appellant.
Supreme Court, Appellate Division, Fourth Department, New York
(November 13, 1998)
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated (DWI) as a felony (Vehicle and Traffic Law ' 1192 ; ' 1193  [c]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law ' 511 ). In February 1996 defendant was sentenced as a persistent felony offender to an indeterminate term of incarceration of 15 years to life.
The verdict is not against the weight of the evidence. The testimony of a Deputy Sheriff concerning his observations of defendant and the admission of defendant that he had been drinking were sufficient to establish defendant's intoxication (see, People v Bowers, 201 AD2d 830, lv denied 83 NY2d 909). *934 We cannot conclude that the jury failed to give the evidence the weight it should be accorded (see, People v Bleakley, 69 NY2d 490, 495). The prosecutor's conduct was not so egregious as to deny defendant a fair trial (see, People v Broadus, 129 AD2d 997, lv denied 70 NY2d 643).
Prior to trial, defendant entered into a stipulation pursuant to CPL 200.60 (see generally, People v Cooper, 78 NY2d 476, 482-483), admitting a prior DWI conviction and also admitting that, at the time of his arrest, he knew that his license was revoked as the result of a prior conviction or refusal to submit to a breathalyzer test. The record establishes that defendant voluntarily entered into the stipulation "as part of a strategy to keep the jury from learning of his prior DWI conviction and that his license was suspended or revoked at the time of his arrest" (People v Tatro, 245 AD2d 1040). Thus, defendant thereby waived his present contention that County Court failed to comply with CPL 320.10 (2) in not submitting count two to the jury (see, People v Tatro, supra; see also, People v Flanagan, 247 AD2d 899, lv denied 91 NY2d 972).
As a matter of discretion in the interest of justice, we modify the judgment by vacating the finding that defendant is a persistent felony offender and reducing the sentence to an indeterminate term of incarceration of 1 1/3 to 4 years (see, CPL 470.20 ). We note that, had defendant's offense been committed after October 31, 1996, it could have been punishable as a class D felony (see, Vehicle and Traffic Law ' 1193  [c] [ii], added by L 1996, ch 652). (Appeal from Judgment of Ontario County Court, Henry, Jr., J.--Felony Driving While Intoxicated.)
Present--Pine, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ. [As amended by unpublished order entered Dec. 31, 1998.]
Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York.
People v Donhauser (Howard)
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