| People v Nuesi |
| 2011 NY Slip Op 04498 [84 AD3d 1272] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fernando Nuesi, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered May 22, 2009, convicting him of operating a motor vehicle while under the influence ofalcohol, operating a motor vehicle while impaired, and aggravated unlicensed operation of amotor vehicle in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Two police officers observed the defendant sitting in the driver's seat of a black Mercedesstopped at a green traffic light at an intersection in Brooklyn. The defendant apparently wasoblivious to the honking horns of the cars that were stopped behind him and to the officers'attempts to communicate with him including, inter alia, their request to pull over.
When the defendant exited his vehicle after driving one block and parking, the officersobserved him staggering down the street and stopped him. The officers smelled a strong odor ofalcohol on the defendant's breath and observed that his eyes were watery and bloodshot, and thathe was unsteady on his feet.
At the intoxicated driving testing unit, Police Officer Victor Mercado administered abreathalyzer test with an Intoxilyzer 5000 which printed out a card stating that the defendant'sbreath was "insufficient" and that his blood alcohol content was 0.177, more than twice the legallimit. After a jury trial, the defendant was convicted, inter alia, of operating a motor vehicleunder the influence of alcohol, and this appeal ensued.
The defendant failed to preserve for appellate review his contention that the results of theIntoxilyzer test should have been suppressed because Officer Mercado lacked the basicknowledge to explain how the Intoxilyzer functioned when reading an insufficient sample(see CPL 470.05 [2]; People v Velez, 64 AD3d 621, 622 [2009]; People vSprosta, 49 AD3d 784, 785 [2008]; People v Dardain, 226 AD2d 551 [1996]). In anyevent, supporting documents reflected, inter alia, that field tests were performed on theIntoxilyzer before and after Officer Mercado used it on December 16, 2007, which ensured thatthe device was in [*2]good working order and that OfficerMercado followed a 13-step operational checklist when he administered the test to the defendant.Officer Mercado also established that the Intoxilyzer produces a result where a breath sample is"insufficient," or less than the optimal amount, which typically favors the subject and, in thiscase, was more than twice the permissible amount. Accordingly, contrary to the defendant'scontentions, the results of the test were supported by a proper foundation (see People vDeMarasse, 85 NY2d 842, 845 [1995]; People v Travis, 67 AD3d 1034, 1035[2009]; People v Dailey, 260 AD2d 81, 84 [1999]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, do not require reversal. Mastro, J.P., Leventhal, Austin and Cohen, JJ., concur.