| People v Casco |
| 2010 NY Slip Op 07560 [77 AD3d 848] |
| October 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BenCasco, Appellant. |
—[*1]
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered June 16, 2009, convicting him of assault in the second degree (two counts),vehicular assault in the second degree (two counts), operating a motor vehicle while under theinfluence of alcohol (two counts), and leaving the scene of an incident without reporting (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted, inter alia, of operating a motor vehicle while under theinfluence of alcohol and assault in the second degree, after he seriously injured two men whiledriving under the influence of alcohol. He left the scene and was stopped by an eyewitness, whocalled the police. The defendant was placed under arrest and taken to a police precinct, wheretesting revealed that his blood alcohol level was .09 of one percent blood alcohol content. At thetrial, the People's expert testified, based upon "retrograde extrapolation," that the defendant'sblood alcohol level at the time of the accident was between .10 and .11 of one percent bloodalcohol content.
During cross-examination of the People's expert, defense counsel elicited that the expertrelied upon only one alcohol test in performing his calculations and in forming his opinion.Defense counsel contended this was insufficient, since the expert could not determine based upononly one test if the defendant's blood alcohol level was increasing after the accident as a result ofabsorption of alcohol the defendant previously consumed. The defendant claims that pursuit ofthis line of inquiry was erroneously curtailed when the Supreme Court ruled that furtherquestions dealing with the fact that the expert relied on only one test would open the door to theadmission, on redirect examination, of an inadmissible field test of the defendant's blood alcohollevel. However, the field test never was admitted into evidence, and the defendant's argumentthat the expert based his opinion upon insufficient data was presented to the jury. In view of theoverwhelming evidence of the defendant's guilt, and no significant probability that the error, ifany, contributed to his convictions, any error was harmless (see People v Crimmins, 36NY2d 230, 237 [1975]). Similarly, the prosecutor's cross-examination of the defendant's expertwith respect to sobriety standards applicable to transportation workers does not warrant reversal,especially in light of the Supreme Court's instruction to the jury that those standards were notapplicable to this case.
The Supreme Court properly admitted the tape of a 911 telephone call to the police made bythe eyewitness, who testified at trial. Contrary to the defendant's contention, there was asufficient basis for the witness's lay opinion as to the defendant's alleged intoxication, based onhis observation of the defendant (see Rivera v City of New York, 253 AD2d 597,600-601 [1998]; see also People v Cruz, 48 NY2d 419, 428 [1979]).
Under the totality of the circumstances herein, the defendant received the effective assistanceof counsel (see People v Taylor, 1NY3d 174 [2003]; People v Benevento, 91 NY2d 708 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Covello, J.P., Leventhal, Hall andSgroi, JJ., concur.