| People v Bhagwandin |
| 2014 NY Slip Op 05348 [119 AD3d 810] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Chetram Bhagwandin, Appellant. |
Green & Willstatter, White Plains, N.Y. (Theodore S. Green of counsel), forappellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Laurie G.Sapakoff, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Zambelli, J.), rendered October 25, 2011, convicting him of aggravated driving whileintoxicated, driving while intoxicated (two counts), unlicensed driving, and speeding,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court properly declined to admit into evidence the defendant'spurported copy of the instruction manual for the breathalyzer instrument on the groundthat it was unauthenticated (see People v Feldman, 299 NY 153, 168 [1949]; People v Laracuente, 21 AD3d1389, 1391 [2005]). In addition, the Supreme Court properly denied the defendant'srequest for a judicial subpoena duces tecum to compel production of the copy of themanual in use by the County of Westchester or the New York State Police (see Matterof County of Nassau Police Dept. v Judge, 237 AD2d 354 [1997]; Matter ofConstantine v Leto, 157 AD2d 376, 377 [1990], affd 77 NY2d 975[1991]).
The defendant argues that the Supreme Court deprived him of his constitutional dueprocess rights to a fair trial and to present a defense when it declined to take judicialnotice of the definition of the term "civil twilight," an alleged time of day. These claimsare unpreserved for appellate review (see People v Lane, 7 NY3d 888, 889 [2006]). In any event,these claims are without merit, as it was an appropriate exercise of the court's discretionto decline to take judicial notice of the definition of "civil twilight" on the ground itwould be confusing to the jury (see Hunter v New York, Ontario & W. R.R.Co., 116 NY 615, 621 [1889]; Ptasznik v Schultz, 247 AD2d 197, 198-199[1998]).
Contrary to the defendant's further contention, the People established an adequateevidentiary foundation for the admission into evidence of the breathalyzer results (see People v Boscic, 15 NY3d494, 497, 499-500 [2010]; People v Todd, 38 NY2d 755, 756 [1975]; People v Travis, 67 AD3d1034, 1035 [2009]; Peoplev Murphy, 101 AD3d 1177, 1178 [2012]).
The defendant contends that the Supreme Court deprived him of his constitutionalrights to a fair trial, to present a defense, and to confront adverse witnesses by improperlycurtailing [*2]his attorney's cross-examination of thePeople's toxicology expert, restricting his attorney's direct examination of his expertwitness, and restricting his attorney's direct examination of him. These contentions areunpreserved for appellate review (see People v Lane, 7 NY3d at 889; Peoplev Sostre, 51 NY2d 958, 960 [1980]; People v Johnson, 40 AD3d 1011, 1012 [2007]; Peoplev Oguendo, 305 AD2d 140, 141 [2003]; People v Robinson, 41 AD3d 1183, 1183-1184 [2007])and, in any event, are without merit (see People v Borukhova, 89 AD3d 194, 222 [2011]; People v Francisco, 44 AD3d870 [2007]; see also People v Wilkins, 221 AD2d 392, 393 [1995];People v Ashner, 190 AD2d 238, 246-247 [1993]).
The Supreme Court appropriately instructed the jury that a breathalyzer testadministered by a person possessing a valid New York State Department of Healthpermit allows, but does not require, an inference that the test was properly conducted(see Vehicle and Traffic Law § 1194 [4] [c]).
The defendant's remaining contention is without merit. Skelos, J.P., Dillon, Romanand Maltese, JJ., concur.