| People v Lewis |
| 2015 NY Slip Op 00147 [124 AD3d 1389] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChevelle Lewis, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered February 8, 2013. The judgment convicted defendant, upon a nonjuryverdict, of driving while intoxicated, driving while ability impaired and failure to staywithin a single lane.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a nonjuryverdict of driving while intoxicated as a felony (Vehicle and Traffic Law§§ 1192 [2]; 1193 [1] [c] [i]), driving while ability impaired(§ 1192 [1]), and failure to stay within a single lane (§ 1128[a]). We reject defendant's contention that Supreme Court erred in admitting in evidencebreath test calibration and simulator solution certificates used in verifying the accuracy ofthe breathalyzer test. According to defendant, the admission of those records in evidenceviolated her rights under the Confrontation Clause of the Sixth Amendment to the UnitedStates Constitution because the records were testimonial in nature (see generallyCrawford v Washington, 541 US 36, 50-54 [2004]). We reject defendant'scontention, inasmuch as the Court of Appeals has determined "that documents pertainingto the routine inspection, maintenance and calibration of breathalyzer machines arenontestimonial under Crawford and its progeny" (People v Pealer, 20 NY3d447, 456 [2013], cert denied 571 US &mdash, 134 S Ct 105 [2013]; see People v Cook, 111 AD3d1169, 1169-1170 [2013], lv denied 22 NY3d 1155 [2014]).
Defendant further contends that the police did not have probable cause to believethat she was operating her vehicle while intoxicated at the time that she was arrested andthus that her statements and any other evidence seized as a result of the arrest, includingthe results of the breathalyzer test, should have been suppressed. Defendant moved onlyto suppress her statements on the ground that they were a product of an unlawful arrest,and thus her contention is unpreserved for our review insofar as it concerns evidenceother than her statements (seePeople v Price, 112 AD3d 1345, 1345-1346 [2013]; People v Fuentes, 52 AD3d1297, 1298 [2008], lv denied 11 NY3d 736 [2008]). We decline to exerciseour power to review that part of defendant's contention concerning evidence other thanher statements as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). We conclude that the court properly refused to suppress defendant's statements.The record establishes that the officer who took defendant into custody testified thatdefendant hit a curb with her vehicle while she was exiting a gas station, and that shealso failed to stay within her lane while driving. That officer thus attempted to effectuatea traffic stop of defendant's vehicle, whereupon defendant stopped her vehicle in themiddle of the street. The officer directed her to pull into a nearby parking lot. The officersubsequently smelled the odor of alcohol emanating from defendant, and he observedthat her eyes were glassy and bloodshot. Even crediting defendant's contention that therewas contradictory evidence regarding whether a field sobriety test was conducted at thescene, we nevertheless conclude from the totality of the circumstances, includingdefendant's erratic driving, defendant's appearance, and the odor of alcohol detected bythe officer, that there was probable cause to believe that defendant was driving inviolation of Vehicle and Traffic Law § 1192 (see People v LeRow, 70 AD3d66, 71 [2009]; People vMojica, 62 AD3d 100, 114 [2009], lv denied 12 NY3d 856 [2009];People v Scalzo, 176 AD2d 363, 364 [1991]). Present—Smith, J.P., Fahey,Whalen and DeJoseph, JJ.