| People v Menegan |
| 2013 NY Slip Op 04378 [107 AD3d 1166] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AddeyN. Menegan, Also, Known as Addey N. FredericksAppellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered July 6, 2012, convicting defendant following a nonjury trial of thecrimes of driving while intoxicated and driving while ability impaired.
On the evening of June 8, 2011, defendant left her place of employment between8:00 p.m. and 8:30 p.m. and drove to Ashes Pub & Grill in the Town of Warrensburg,Warren County, where she consumed a 16-ounce "Jack and Coke." Approximately 45minutes later, defendant left that establishment and drove to the Garrison in the Villageof Lake George, Warren County, where—over the course of the next hour orso—she consumed two "Twisted Teas" and a shot of whiskey. Shortly afterleaving the Garrison around 10:00 p.m., defendant began to feel the effects of the alcoholshe had consumed and, roughly 30 minutes later, defendant called her husband, PeteMenegan, and asked him to meet her at the Valero gas station—located off exit 17of Interstate 87 in Saratoga County—and give her a ride home. Upon arriving atthe gas station, defendant backed her car into a parking space, striking a parked tractortrailer in the process. Menegan thereafter arrived but, following a conversation withdefendant, Menegan called 911 to report that defendant was "pretty drunk" and had"backed into something" in the parking lot, and that he, in turn, was "now. . . leaving her [t]here."[*2]
At 11:22 p.m., and in response to Menegan's 911call, Trooper Robert Schmidt Jr. was dispatched to the Valero gas station. Upon arriving,Schmidt observed a vehicle matching the description he had been given and, as heapproached the driver—later identified as defendant—he noticed that thehood of the car was still warm and that debris from a cracked rear tail light was on theground. Schmidt then spoke with defendant, who admitted that she had been drinkingand acknowledged that she should not be driving, prompting Schmidt to administer threefield sobriety tests—all of which defendant failed.[FN1]Defendant was placed under arrest for driving while intoxicated at approximately 11:46p.m., read her rights and placed in the patrol vehicle, whereupon she lamented the factthat she was "get[ting] arrested because [she was] impaired and . . . hit atruck." A breath test conducted at 1:06 a.m. revealed that defendant had a blood alcoholcontent (hereinafter BAC) of .11%.
Defendant thereafter was indicted and charged with two counts of driving whileintoxicated (hereinafter DWI). Following a nonjury trial, defendant was acquitted of thecommon-law DWI count but convicted of the lesser included offense of driving whileability impaired (see Vehicle and Traffic Law § 1192 [1]), as well as DWIper se (see Vehicle and Traffic Law § 1192 [2]). County Court sentenceddefendant, who had prior alcohol-related convictions, to, among other things, fourmonths in jail followed by five years of probation. Defendant now appeals.
Defendant initially contends that the People failed to lay a proper foundation for theadmission of the breath test results. We disagree. "Breath test results are admissiblewhere the People establish that the machine is accurate, that it was working properlywhen the test was performed and that the test was properly administered" (People v Murphy, 101 AD3d1177, 1178 [2012] [internal quotation marks and citations omitted]; see People v Travis, 67 AD3d1034, 1035 [2009], lv denied 14 NY3d 845 [2010]).
Here, the testimony of the trooper who administered the breath test to defendant,together with the documents pertaining to, among other things, the calibration andmaintenance of the Alcotest 9510 (the machine upon which defendant's test wasperformed) and the chemicals used during the test, constituted "evidence from which thetrier of fact could reasonably conclude that the test results were derived from a properlyfunctioning machine using properly constituted chemicals" (People v Kulk, 103 AD3d1038, 1041 [2013] [internal quotation marks and citation omitted]). As fordefendant's challenge to the admissibility of certain supporting documents, defendant didnot object to the admission of Schmidt's breath analysis operator certification (exhibitNo. 4) or the actual breath test results (exhibit No. 8), and we are satisfied that the breathtest rules (exhibit No. 5), calibration and maintenance records (exhibit No. 6) andreference gas records (exhibit No. 7) were properly certified and admitted pursuant toCPLR 4518 (c). Finally, to the extent that defendant's brief may be read as asserting aConfrontation Clause violation, we note that "documents pertaining to the routineinspection, maintenance and calibration of breathalyzer machines are nontestimonialunder Crawford and its progeny" (People v Pealer, 20 NY3d 447, 456 [2013]; see People v Hulbert, 93 AD3d953, 953-954 [2012]).
Defendant next asserts that County Court erred in admitting the testimony offered bythe People's expert witness, Michael Holland. Initially, to the extent that defendantcontends that [*3]Holland, a board-certified toxicologist,was not properly qualified as an expert witness, we disagree. Simply put, we are satisfiedthat Holland "possessed sufficient education, training and experience from which CountyCourt could infer that [his] opinion would be reliable" (People v Surdis, 77 AD3d1018, 1019 [2010], lv denied 16 NY3d 800 [2011]; see People v Wyant, 98 AD3d1277, 1278 [2012]; see also Matott v Ward, 48 NY2d 455, 459 [1979]).
We reach a similar conclusion with respect to defendant's generalized challenge tothe theory of reverse extrapolation—the process by which an expert, taking intoconsideration, among other things, an individual's known BAC at a particular point intime, renders an opinion as to the individual's BAC at an earlier point in time. Assumingthe expert in question is qualified and a proper foundation has been laid for such opinion,reverse extrapolation testimony may be admitted (see e.g. People vDombrowski-Bove, 300 AD2d 1122, 1123 [2002]; People v O'Connor, 290AD2d 519, 520 [2002], lv denied 97 NY2d 758 [2002]; People v Cross,273 AD2d 702, 703 [2000]; People v MacDonald, 227 AD2d 672, 674-675[1996], affd 89 NY2d 908 [1996]). Here, however, the People failed to lay aproper factual foundation for Holland's testimony and, therefore, defendant's objection inthis regard should have been sustained.[FN2]
Turning to the weight and sufficiency of the evidence supporting defendant'sconviction, we note that defendant failed to renew her motion to dismiss for legallyinsufficient evidence at the close of all proof and, therefore, her argument on this point isnot preserved for our review (see People v Newland, 83 AD3d 1202, 1204 n [2011],lv denied 17 NY3d 798 [2011]). That said, "our weight of the evidence [analysis]necessarily involves an evaluation of whether all elements of the charged crime[s] wereproven beyond a reasonable doubt at trial" (People v Burch, 97 AD3d 987, 989 n 2 [2012] [internalquotation marks and citations omitted], lv denied 19 NY3d 1101 [2012]). Here,in light of Schmidt's observations of defendant and her vehicle on the night in questionand defendant's own testimony, we find ample evidence to support defendant'sconviction of driving while ability impaired, which required nothing more than ashowing that defendant operated a motor vehicle while her ability to do so was "impairedby the consumption of alcohol" (Vehicle and Traffic Law § 1192 [1]). Notably,defendant testified that after leaving the Garrison and while en route to her home, she"started to feel not right" and realized "that the alcohol [she had consumed] was hitting[her]." When pressed on this point, defendant acknowledged that she started to feel"impaired" after departing for home, knew that she "needed to pull over" and calledMenegan en route because she wanted "a safe ride home." Such testimony, coupled withother proof in the record, is more than adequate to sustain [*4]defendant's conviction in this regard.
We reach a similar conclusion with respect to defendant's conviction of DWI per se,i.e., operating a motor vehicle with a BAC of .08% or greater (see Vehicle andTraffic Law § 1192 [2]). Although Holland's reverse extrapolation testimonyshould not have been admitted into evidence, we deem this error to be harmless (seePeople v Heidelmark, 214 AD2d 767, 769 [1995], lv denied 85 NY2d 973[1995]). The breathalyzer test was administered within two hours of defendant's arrestand revealed a BAC of .11%, which is sufficient to establish a prima facie violation ofVehicle and Traffic Law § 1192 (2). Such proof, coupled with defendant'sadmissions, slurred speech, glassy eyes and failed field sobriety tests, as well asSchmidt's observations of defendant's vehicle, support the finding that defendantoperated a motor vehicle with a BAC of .08% or greater in violation of Vehicle andTraffic Law § 1192 (2) (see People v Mertz, 68 NY2d 136, 146 [1986]; People v Arnold, 2 AD3d975, 975 [2003], lv denied 1 NY3d 594 [2004]; People v Poje, 270AD2d 649, 650-651 [2000], lv denied 95 NY2d 802 [2000]; People vStiffler, 237 AD2d 753, 754 [1997], lv denied 90 NY2d 864 [1997]; see also People v Mojica, 62AD3d 100, 110-111 [2009], lv denied 12 NY3d 856 [2009]; People v Lundell, 24 AD3d569, 570 [2005]). Defendant's remaining contentions, including her assertion thatMenegan's limited testimony violated the marital privilege (see CPLR 4502 [b];CPL 60.10), have been examined and found to be lacking in merit.
Peters, P.J., Rose and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Schmidt further notedthat defendant smelled of alcohol and exhibited slurred speech and glassy eyes.
Footnote 2: The record reflectssome dispute as to the precise information that Holland needed in order to accuratelyperform this calculation—with the parties debating the extent to which defendant'sextrapolated BAC was or could have been affected by her height/weight, past drinkingpractices/experience, the type of alcohol/number of drinks she consumed, theamount/type of food, if any, present in her stomach while she was drinking and the timeat which she started/stopped drinking on the night in question. We need not decide,however, which of the cited variables Holland should have taken into consideration inperforming his analysis. Rather, it is sufficient for purposes of this appeal that the Peoplefailed to lay an adequate factual foundation for the variables upon which Holland didrely.