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PEOPLE v. RODRIGUEZ

40165C/05, 1058.

72 A.D.3d 238 (2010)

895 N.Y.S.2d 58

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FREDDY RODRIGUEZ, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided February 16, 2010.

Attorney(s) appearing for the Case

Yalkut & Israel, Bronx ( Arlen S. Yalkut of counsel), for appellant.

Robert T. Johnson , District Attorney, Bronx ( Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for respondent.

DEGRASSE and FREEDMAN, JJ., concur with TOM, J.P.; SWEENY and MCGUIRE, JJ., dissent in a separate opinion by MCGUIRE, J.

OPINION OF THE COURT

TOM, J.P.

The prosecution's theory of this case is that defendant entered a delivery truck, without authorization and while intoxicated, and caused it to strike vehicles and pedestrians in the intersection below. Defendant, however, alleges that he entered the vehicle only after it was already in motion, rolling downhill and, without starting the engine, unsuccessfully attempted to stop it. No witness actually saw defendant enter the...

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