THE PEOPLE &C., RESPONDENT, v. JOSE ARDILA, A/K/A JOSE ARDILLA, APPELLANT.

    85 N.Y.2d 846, 647 N.E.2d 1355, 623 N.Y.S.2d 847 (1995).
    February 16, 1995

   2 No. 37 (1995 NY Int. 038)
   Decided February 16, 1995
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   This memorandum is uncorrected and subject to revision before
   publication in the New York Reports.

   David B. Weisfuse, for Appellant.
   Richard Longworth Hecht, for Respondent.

   MEMORANDUM:

   The order of the Appellate Division should be affirmed.

   The trial court did not err in instructing the jury, over defense
   counsel's objection, that voluntary "intoxication" as that term is
   used in Vehicle and Traffic Law § 1192(3) means the voluntary
   consumption of alcohol to the point where the individual's "ability to
   drive safely (i)s impaired to a substantial extent" (emphasis
   supplied) (see, 3 CJI, Vehicle and Traffic Law § 1192, at 2303).
   Contrary to defendant's contention, there is no meaningful semantic
   difference between being so inebriated that one's "ability to drive
   safely is impaired to a substantial extent" -- the formula used by the
   trial court here -- and being so inebriated that one is "incapable of
   employing the physical and mental abilities which (one) is expected to
   possess in order to operate a vehicle as a reasonable and prudent
   driver" -- the formula used by this Court in People v Cruz (48 NY2d
   419, 428). While the term "incapable" may connote absolute inability
   in the abstract, it loses that unconditional quality when it is used
   in conjunction with a relative concept like operating a vehicle in a
   "reasonable and prudent" manner (see, id.; see also, Matter of
   Johnston, 75 NY2d 403).

   Thus, in this context, the trial court's description of "intoxication"
   as having one's ability to drive safely impaired "to a substantial
   extent" did not in any way diminish the People's burden of proof. It
   was, in fact, useful in clarifying the distinction between driving
   while intoxicated (Vehicle and Traffic Law § 1192(3)) and driving
   while impaired (id., (1)), which requires a lesser showing that the
   accused's driving faculties were impaired "to any extent" (People v
   Cruz, supra, at 427). Accordingly, the court's instruction furnishes