People v. Menegan

• Decision Date: 13 June 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Addey N. MENEGAN, Also Known as Addey N. Fredericks, Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1166
967 N.Y.S.2d 461
2013 N.Y. Slip Op. 04378

The PEOPLE of the State of New York, Respondent,
v.
Addey N. MENEGAN, Also Known as Addey N. Fredericks, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 13, 2013.

[967 N.Y.S.2d 462]

Brennan & White, LLP, Queensbury (William J. White of counsel), for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: PETERS, P.J., ROSE, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

[107 A.D.3d 1166]Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 6, 2012, convicting defendant following a nonjury trial of the crimes of driving while intoxicated and driving while ability impaired.

On the evening of June 8, 2011, defendant left her place of employment between 8:00 p.m. and 8:30 p.m. and drove to Ashes [107 A.D.3d 1167]Pub & Grill in the Town of Warrensburg, Warren County, where she consumed a 16–ounce “Jack and Coke.” Approximately 45 minutes later, defendant left that establishment and drove to The Garrison in the Village of Lake George, Warren County, where—over the course of the next hour or so—she consumed two “Twisted Teas” and a shot of whiskey. Shortly after leaving The Garrison around 10:00 p.m., defendant began to feel the effects of the alcohol she had consumed and, roughly 30 minutes later, defendant called her husband, Pete Menegan, and asked him to meet her at the Valero gas station—located off exit 17 of Interstate 87 in Saratoga County—and give her a ride home. Upon arriving at the gas station, defendant backed her car into a parking space, striking a parked tractor trailer in the process. Menegan thereafter arrived but, following a conversation with defendant, Menegan called 911 to report that defendant was “pretty drunk” and had “backed into something” in the parking lot, and that he, in turn, was “now ... leaving her [t]here.”

At 11:22 p.m., and in response to Menegan's 911 call, Trooper Robert Schmidt Jr. was dispatched to the Valero gas station. Upon arriving, Schmidt observed a vehicle matching the description he had been given and, as he approached the driver—later identified as defendant—he noticed that the hood of the car was still warm and that debris from a cracked rear tail light was on the ground. Schmidt then spoke with defendant, who admitted that she had been drinking and acknowledged that she should not be driving, prompting Schmidt to administer three field sobriety tests—all of which defendant failed.¹ Defendant was placed under arrest for driving while intoxicated at approximately 11:46 p.m., read her rights and placed in the patrol vehicle, whereupon she lamented the fact that she was “get[ting] arrested because [she was] impaired and ... hit a truck.” A breath test conducted at 1:06 a.m. revealed that defendant had a blood alcohol content (hereinafter BAC) of .11%.

Defendant thereafter was indicted and charged with two counts of driving while intoxicated (hereinafter DWI). Following a nonjury trial, defendant was acquitted of the common-law DWI count but convicted of the lesser included offense of driving while ability impaired ( seeVehicle and Traffic Law § 1192[1] ), as well as DWI per se ( seeVehicle and Traffic Law § 1192[2] ). County Court sentenced defendant, who had prior alcohol-related convictions, to, among other things, four months in jail followed by five years of probation. Defendant now appeals.

[967 N.Y.S.2d 463]

Defendant initially contends that the People failed to lay a [107 A.D.3d 1168]proper foundation for the admission of the breath test results. We disagree. “Breath test results are admissible where the People establish that the machine is accurate, that it was working properly when the test was performed and that the test was properly administered” ( People v. Murphy, 101 A.D.3d 1177, 1178, 956 N.Y.S.2d 207 [2012] [internal quotation marks and citations omitted]; see People v. Travis, 67 A.D.3d 1034, 1035, 890 N.Y.S.2d 552 [2009],lv. denied14 N.Y.3d 845, 901 N.Y.S.2d 151, 927 N.E.2d 572 [2010] ).

Here, the testimony of the trooper who administered the breath test to defendant, together with the documents pertaining to, among other things, the calibration and maintenance of the Alcotest 9510 (the machine upon which defendant's test was performed) and the chemicals used during the test, constituted “evidence from which the trier of fact could reasonably conclude that the test results were derived from a properly functioning machine using properly constituted chemicals” ( People v. Kulk, 103 A.D.3d 1038, 1041, 962 N.Y.S.2d 408 [2013] [internal quotation marks and citation omitted] ). As for defendant's challenge to the admissibility of certain supporting...