
    The People of the State of New York, Respondent, v Darwin Whipple, Appellant.
    [737 NYS2d 560]
   —Carpinello, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 17, 1998, upon a verdict convicting defendant of two counts of the crime of driving while intoxicated.

When this matter was previously before us, we determined that defendant’s motion for a trial order of dismissal should have been granted based on the People’s failure to establish the capacity of the parking lot in which he was driving while under the influence of alcohol (276 AD2d 829). The Court of Appeals reversed that determination and remitted the case to us pursuant to CPL 470.25 (2) (d) and CPL 470.40 (2) (b) (97 NY2d 1). Upon our review of the record, we reject as meritless the sole remaining contention advanced by defendant, to wit, that the proof concerning his blood alcohol content at the time of the accident was legally insufficient.

Cardona, P.J., Peters and Mugglin, JJ., concur. Ordered that the judgment is affirmed.  