People v. Stevenson, 2008 NY Slip Op 51933(U) (N.Y. App. Term 9/24/2008)

• Decision Date: 24 September 2008
• Docket Number: 570348/06.
• Citation: 2008 NY Slip Op 51933
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLTON STEVENSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

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2008 NY Slip Op 51933(U)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLTON STEVENSON, Defendant-Appellant.

570348/06.

Appellate Term of the Supreme Court of New York, First Department.

Decided September 24, 2008.

Defendant appeals from a judgment of the Criminal Division of Supreme Court, Bronx County (Joseph J. Dawson, J.), rendered February 15, 2006, after a jury trial, convicting him of two counts of operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192[2],[3]), and imposing sentence.

Judgment of conviction (Joseph J. Dawson, J.), rendered February 15, 2006, affirmed.

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ.

PER CURIAM.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The jury was entitled to credit the unrebutted police testimony showing that the breath test was properly administered and measured defendant's blood alcohol content to be at least .21 on the night he was tested, evidence establishing prima facie defendant's violation of Vehicle and Traffic Law § 1192(2) (see People v DeMarasse, 85 NY2d 842, 845 [1995]; People v Mertz, 68 NY2d 136, 139 [1986]). Defendant's conviction for driving while intoxicated under the common-law standard was sufficiently supported by his own admissions concerning the amount he had to drink prior to the accident, the credited police officers' testimony regarding defendant's physical condition and their observation of an open bottle of rum on the front console of defendant's car, and the circumstances surrounding the accident (see People v Verriale, 238AD2d298 [1997]).

Documents relating to the proper working condition of the breathalyzer machine were not testimonial in nature, and their admission did not violate defendant's confrontation rights under Crawford v Washington, 541 US 36 (2004) (see People v Lebrecht, 13 Misc 3d 45[2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur