| People v Garcia-Santiago |
| 2009 NY Slip Op 02139 [60 AD3d 1383] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jerry L.Garcia-Santiago, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered September 30, 2005. The judgment convicted defendant, upon a nonjury verdict, ofmanslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial ofmanslaughter in the first degree (Penal Law § 125.20), defendant contends that SupremeCourt erred in determining that a police officer was qualified to testify as an expert witnessconcerning the behavior of an individual with a blood alcohol content of .03%. Defendant failedto object to the testimony of the officer on that ground and thus failed to preserve that contentionfor our review (see CPL 470.05 [2]; see generally People v Delatorres, 34 AD3d1343, 1344 [2006], lv denied 8 NY3d 921 [2007]; People v Smith, 24 AD3d1253 [2005], lv denied 6 NY3d 818 [2006]). We decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). We reject defendant's further contention that the court erred in admitting the officer'stestimony in evidence because it lacked a proper foundation (see generally People vJones, 73 NY2d 427, 430 [1989]), and was irrelevant (see generally People vScarola, 71 NY2d 769, 777 [1988]). The sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Peradotto, Carni and Green, JJ.