People v. Brown

• Decision Date: 18 June 2014
• Docket Number: No. 2009–849 KCR.,2009–849 KCR.
• Citation: 2014 N.Y. Slip Op. 50984,993 N.Y.S.2d 645,44 Misc.3d 129
• Court: U.S. Court of Appeals — Second Circuit
• Parties: The PEOPLE of the State of New York, Respondent, v. Charlie BROWN, Appellant.

44 Misc.3d 129

993 N.Y.S.2d 645

2014 N.Y. Slip Op. 50984

The PEOPLE of the State of New York, Respondent,

v.Charlie BROWN, Appellant.

No. 2009–849 KCR.

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.

June 18, 2014

OPINION TEXT STARTS HERE Present: PESCE, P.J., SOLOMON and ELLIOT, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Ruth E. Smith, J.), rendered March 16, 2009. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated (per se), driving while intoxicated (common law), and reckless driving.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an information with driving while ability impaired by alcohol (Vehicle and Traffic Law § 1192[1] ), driving while intoxicated (per se) (Vehicle and Traffic Law § 1192[2] ), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192[3] ), reckless driving (Vehicle and Traffic Law § 1212), and consumption or possession of an alcoholic beverage in a motor vehicle (Vehicle and Traffic Law § 1227). Following a jury trial, defendant was convicted of driving while intoxicated (per se), driving while intoxicated (common law), and reckless driving. Defendant appeals, arguing that the trial proof was legally insufficient to support the verdict, and, in any event, the verdict was against the weight of the evidence.

With respect to the claim of legal insufficiency, defendant's categorical assertion of this claim, during his motion to dismiss at the close of the People's case (defendant did not present a case), was insufficient to preserve the issue, as defendant failed to identify, with the requisite specificity, any insufficiency in the proof ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492 [2008]; People v. Gray, 86 N.Y.2d 10, 19 [1995] ). In any event, viewed in the light most favorable to the People ( People v. Contes, 60 N.Y.2d 620, 621 [1983] ), we find that the evidence was legally sufficient to support the verdict.

Defendant argues, among other things, that the officers failed to observe defendant for the requisite period of time prior to administering the blood alcohol test and that the officers should not have been permitted to testify as to their professional opinions of defendant's state of intoxication. Although the testing officer acknowledged that he had not maintained an uninterrupted observation of defendant while he had completed paperwork in relation to the testing, he testified that, throughout the period in question, he had remained “[r]ight at the desk” where defendant was being questioned by the arresting officer. Thus, he would likely have detected the sounds of defendant belching, vomiting, chewing food, swallowing, and the like, but heard nothing. The fact that defendant “hiccuped” during this period does not require the inference that he regurgitated something from his stomach that might have affected the accuracy of the test result.

Moreover, the observation requirement ( see Vehicle and Traffic Law § 1194 [4][c]; Department of Health Regulations [10 NYCRR] § 59.5[b] ) is not strictly construed. “Neither the statute, the regulations nor the exercise of reason call for [a] constant vigil” ( People v. Williams, 96 A.D.2d 972, 973 [1983], revd on other grounds 62 N.Y.2d 765 [1984]; see e.g. People v. McDonough, 132 A.D.2d 997, 998 [1987] [“Although the arresting officer testified that he was doing some paperwork at the time, he observed defendant for well over 15 minutes and was able to observe whether he did anything with his hands, belched, or regurgitated”]; People v. Lebrecht, 13 Misc.3d 45, 51, 823 N.Y.S.2d 824 [App Term, 9th & 10th Jud Dists 2006] ), and, in any event, proof of the required “continuous observation” period is not a predicate condition to the admission of breathalyzer test results; rather, it “goes only to the weight to be afforded the test result, not its admissibility' “ ( People v. Lent, 29 Misc.3d 14, 21, 908 N.Y.S.2d 804 [App Term, 9th & 10th Jud Dists 2010], quoting People v. Schuessler, 14 Misc.3d 30, 32, 829 N.Y.S.2d 808 [App Term, 9th & 10th Jud Dists 2006]; see also People v. Jones, 50 A.D.3d 1058, 1059 [2008]; People v. Terrance, 120 A.D.2d 805, 807 [1986]; People v. Kostrubal, 37 Misc.3d 142[A], 2012 N.Y. Slip Op 52280 [U] [App Term, 9th & 10th Jud Dists 2012] ).

As for the officers' opinions of the degree of defendant's state of intoxication, it is well settled that such testimony is admissible even from a lay witness ( e.g. People v. Cruz, 48 N.Y.2d 419, 429 [1979]; People v. Bennett, 238 A.D.2d 898, 899 [1997] ) and, here, the officers testified to their police academy training as well as their professional and social experience with respect to the detection of persons under the influence of alcohol. This testimony provided an adequate foundation to qualify them to offer expert opinions as to defendant's state of intoxication.

As to the proof of driving while intoxicated per se, we find that defendant's high blood alcohol content, as recorded by an Intoxilyzer 5000 device, of .14 percentum by weight, nearly twice the legal limit for intoxication, was properly established through the documentary proof of the instrument's maintenance and calibration records, the technician's testimony as to the procedures followed before administering the test, and the conduct of the test itself.

With respect to the charge of common law driving while intoxicated, the arresting officer testified that he had observed defendant's vehicle rear-end another vehicle which had stopped at a traffic light, at a time when the ground was dry and the traffic conditions were light, with sufficient force to cause damage to both vehicles. The arresting officer had approached defendant and detected watery eyes, a flushed face, an odor of an alcoholic beverage on his breath, a staggered walk, and an open and near-empty bottle of brandy on the driver's seat. The officer who had administered a chemical test of defendant's blood alcohol content testified as to the same indicia of intoxication (with the exception of the staggered walk) and that defendant's diminished motor skills had become evident during the physical coordination tests. This proof, taken together with the blood alcohol test results and the...