People v. Reding

• Decision Date: 21 November 1990
• Citation: 167 A.D.2d 716,564 N.Y.S.2d 489
• Parties: The PEOPLE of the State of New York, Respondent, v. David F. REDING, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 489

564 N.Y.S.2d 489

167 A.D.2d 716

The PEOPLE of the State of New York, Respondent, v. David F. REDING, Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 21, 1990.

Caputo, Aulisi & Skoda (Robert M. Cohen, Ballston Lake, of counsel), Gloversville, for appellant.

William H. Gritsavage, Dist. Atty. (Richard C. Giardino, of counsel), Johnstown, for respondent.

Before MAHONEY, P.J., and KANE, WEISS, LEVINE and HARVEY, JJ.

LEVINE, Justice.

Appeal from a judgment of the County Court of Fulton County (Mazzone, J.), rendered November 16, 1989, upon a verdict convicting defendant of the crime of driving while ability impaired.

At approximately 1:10 A.M. on December 11, 1987, defendant was stopped by Deputy Sheriff Scott McCoy in the Town of Caroga Lake, Fulton County, after McCoy observed defendant's car cross the center pavement markings in the road several times and finally sway into the opposite lane. At that time, McCoy detected the odor of alcohol on defendant's breath and noticed that his eyes were bloodshot. After defendant admitted that he had been drinking, McCoy administered field sobriety tests, which defendant could not successfully complete, and an Alco-sensor test, which indicated a positive result. Defendant was then placed under arrest and transported to the Sheriff's Department where he submitted to a breathalyzer test, resulting in a blood alcohol reading of .17%.

Thereafter, defendant was indicted on two counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[2], [3]. The matter proceeded to trial where defendant was acquitted on both counts contained in the indictment, but found guilty of the lesser included offense of driving while ability impaired (hereinafter DWAI) (Vehicle and Traffic Law § 1192[1]. This appeal ensued.

Defendant's first contention on appeal is that the results of the breathalyzer test were introduced into evidence without a proper foundation. However, even if the breathalyzer results were improperly admitted, our review of the jury verdict and the trial transcript leads us to conclude that such error was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 241-243, 367 N.Y.S.2d 213, 326 N.E.2d 787). First, implicit in the jury's verdict acquitting defendant on both counts of the indictment is that it rejected the breathalyzer test results. Further, the record contains overwhelming additional evidence, including defendant's admission that he had been drinking and McCoy's testimony that he detected alcohol on defendant's breath, that defendant's eyes were bloodshot and that he exhibited a psychomotor coordination problem, which supports the far less rigorous proof required to establish DWAI, that is, that defendant's driving ability was impaired to any extent (see, People v. Cruz, 48 N.Y.2d 419, 426, 423 N.Y.S.2d 625, 399 N.E.2d 513, appeal dismissed 446 U.S. 901, 100 S.Ct....