
    The People of the State of New York, Respondent, v Michael Rutkowski, Appellant.
    [751 NYS2d 858]
   —Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered April 1, 2002, convicting him of driving while intoxicated and criminal contempt in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant was operating the motor vehicle in question while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) (see People v Kane, 240 AD2d 516; People v Nedoroscik, 178 AD2d 684; People v Le Beau, 134 AD2d 929). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant failed to establish that he was denied the effective assistance of counsel (see People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137, 146). Altman, J.P., Smith, H. Miller and Mastro, JJ., concur.  