| People v Badia |
| 2015 NY Slip Op 05954 [130 AD3d 744] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Badia, Appellant. |
Del Atwell, East Hampton, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Jennifer L.Spencer, and Laurie G. Sapakoff of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Hubert, J.), rendered April 5, 2012, convicting him of driving while intoxicated per se inviolation of Vehicle and Traffic Law § 1192 (2), driving while intoxicatedin violation of Vehicle and Traffic Law § 1192 (3), and driving whileability impaired by the combined influence of drugs or of alcohol and any drug or drugsin violation of Vehicle and Traffic Law § 1192 (4-a), upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing(Colangelo, J.), of that branch of the defendant's omnibus motion which was to suppressthe results of a blood test.
Ordered that the judgment is affirmed.
On January 4, 2010, the defendant lost control of his vehicle while drivingsouthbound on the Sprain Brook Parkway, striking a guardrail, skidding across threelanes of southbound traffic, and colliding with several trees before coming to a stop inthe center median. The defendant was subsequently transported to a hospital byemergency medical service personnel, who relayed to a New York State Trooper thenoted presence of alcohol on the defendant's breath. At the hospital, the defendantresponded to the trooper's inquiries by stating that he had consumed two beers and threeXanax pills. The trooper, who smelled alcohol and noted that the defendant slurred hisspeech and had glassy, bloodshot, watery eyes, promptly placed the defendant underarrest. Thereafter, the trooper gave a driving while intoxicated (hereinafter DWI) refusalwarning (see Vehicle and Traffic Law § 1194 [2] [b] [1]), followingwhich the defendant consented to a chemical test of his blood. The trooper also read thedefendant his Miranda rights (see Miranda v Arizona, 384 US 436[1966]), which the defendant waived. A nurse drew two vials of blood from thedefendant, the laboratory analysis of which revealed a blood alcohol content of .13% andtherapeutic levels of benzodiazepines, including Xanax.
Contrary to the defendant's contention, the County Court properly denied that branchof his omnibus motion which was to suppress the blood test results. The record reflectsthat the defendant consented to the blood test while at the hospital after being given hisDWI refusal warnings (seePeople v Gore, 117 AD3d 845 [2014]; People v Mojica, 62 AD3d 100 [2009]; People vBowen, 229 AD2d 954 [1996]; People v Challis, 172 AD2d 552 [1991]). Tothe extent the defendant relies on portions of the trial record in support of his contentionthat the blood test results should have been suppressed, this Court is precluded fromreviewing trial testimony in determining whether the hearing court acted [*2]properly (see People v Moss, 67 AD3d 1027 [2009]; People v Whyte, 47 AD3d852, 853 [2008]; People v Andujar, 267 AD2d 467 [1999]). The propriety ofthe hearing court's ruling must be determined only in light of the evidence that wasbefore that court (see People v Gonzalez, 55 NY2d 720 [1981]; People vAndujar, 267 AD2d at 468). Since the defendant did not seek to reopen the hearingbased on the trial testimony, or move for a mistrial, the question of whether the trooper'strial testimony undermined the hearing court's determination is not properly before thisCourt (see People v Moss, 67 AD3d at 1027-1028).
The defendant's contention that his injuries prevented him from knowingly,voluntarily, and intelligently consenting to the blood test was not raised before thehearing court and, thus, is not preserved for appellate review (see CPL 470.05[2]; People v Heidgen, 22NY3d 259, 280 [2013]). In any event, the contention is without merit (see Peoplev Gore, 117 AD3d at 846; see People v Mojica, 62 AD3d at 114-115;People v Bowen, 229 AD2d at 955; People v Challis, 172 AD2d 552[1991]).
The defendant maintains that he was deprived of his right to be present at theSandoval hearing (see People v Sandoval, 34 NY2d 371 [1974]). Acriminal defendant has the right to be present at all material stages of his trial, including aSandoval hearing (see People v Dokes, 79 NY2d 656 [1992]). However,it is equally well settled that a presumption of regularity attaches to all judicialproceedings, and it is the defendant who bears the burden of rebutting that presumption(see People v Bridgeforth,119 AD3d 600 [2014]; People v Torres, 267 AD2d 261 [1999]; People vWashington, 246 AD2d 676 [1998]). On this record, the defendant has failed torebut the presumption of regularity, inasmuch as he has not demonstrated that he was, infact, absent from the Sandoval hearing (see People v Keyes, 291 AD2d571 [2002]; People v Torres, 267 AD2d at 262; People v Washington,246 AD2d at 677). Indeed, the record indicates that he was present during thehearing.
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson,Cohen and Duffy, JJ., concur.