Opinion
2014–1046 N CR.
04-26-2016
The PEOPLE of the State of New York, Respondent, v. Kiran BANKUPALLY, Appellant.
Appeal from judgments of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J. at trial; Robert G. Bogle, J., at sentencing), rendered April 4, 2014. The judgments convicted defendant, after a nonjury trial, of aggravated driving while intoxicated and speeding, respectively.
ORDERED that so much of the appeal as is from the judgment convicting defendant of speeding is dismissed as abandoned; and it is further,
ORDERED that the judgment convicting defendant of aggravated driving while intoxicated is affirmed.
On December 7, 2011, the People charged defendant, in separate simplified traffic informations, with aggravated driving while intoxicated (Vehicle and Traffic Law § 1192[2–a] ), driving while intoxicated (per se) (Vehicle and Traffic Law § 1192[2] ), unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509[1] ), and speeding (Vehicle and Traffic Law § 1180 [a] ), alleging, among other things, that, at 3:11 a.m. on that date, defendant had operated his vehicle on Long Beach Boulevard at an”unreasonable and imprudent speed” with a blood alcohol content of .214 percentum by weight.
At a nonjury trial, the City Court (Frank D. DiKranis, J.) overruled defendant's objection, made on hearsay and Confrontation Clause grounds, to the admission of certain of the calibration and maintenance documentation for the Intoxilyzer 5000EN, the breathalyzer device that had been used to test defendant's blood alcohol content, which documents were offered to establish the admissibility of the test results. Following the trial, the court found defendant guilty of aggravated driving while intoxicated and speeding, and dismissed the remaining charges. On appeal, defendant contends that his “acquittal” of driving while intoxicated (per se) (Vehicle and Traffic Law § 1192[2] ) renders repugnant his conviction of aggravated driving while intoxicated. Defendant further argues that his objection to the admission of the breathalyzer's calibration and maintenance documents should have been sustained, and, absent such documentation and because the tester lacked training as to the scientific theory and mechanics underlying the Intoxilyzer 5000EN instrument that had been used to test defendant's blood alcohol content, there was insufficient proof that the instrument had been functioning properly at the time of the test. As defendant raises no issue with respect to his conviction of speeding, so much of the appeal as is from the judgment convicting him of this offense is dismissed as abandoned.
Defendant's repugnancy claim is not preserved for appellate review (see CPL 470.05[2] ), as he failed to move to set aside or to modify the verdict on that ground (see People v. Alfaro, 66 N.Y.2d 985, 987 [1985] ; e.g. People v. Millien, 127 AD3d 883, 883 [2015] ; People v. Wilson, 199 A.D.2d 446, 446 [1993] ). In any event, the conviction of aggravated driving while intoxicated and the dismissal of the charge of driving while intoxicated per se under Vehicle and Traffic Law § 1192(2) did not constitute a repugnant verdict. The latter charge is an “inclusory concurrent count” (CPL 300.30[4] ), that is, a lesser included offense of the former, differing only in the degree of a driver's blood alcohol content (see CPL 1.20[37] ; e.g. People v. Grennon, 36 Misc.3d 33, 35 [App Term, 2d Dept, 9th & 10th Jud Dists 2011] ). A repugnancy occurs when an acquittal of one offense necessarily negates an element of another offense of which defendant was convicted (see People v. Muhammad, 17 NY3d 532, 539–540 [2011] ; People v. Tucker, 55 N.Y.2d 1, 6 [1981] ; People v. Jacobs, 128 AD3d 850, 850–851 [2015] ), but because “[a] verdict of guilty upon the greatest count ... is deemed a dismissal of every lesser count submitted, but not an acquittal thereon” (CPL 300.40[3][b] ), the verdicts in this case were not legally repugnant, since defendant was not acquitted of the lesser included offense.
The remaining contentions are also without merit. “Confrontation Clause challenges (see Crawford v. Washington, 541 U.S. 36 [2004] ) to the admission of a breath testing machine's calibration and maintenance documents under the business records exception to the hearsay rule (CPLR 4518 ) have been considered and rejected (People v. Pealer, 20 NY3d 447, 455 [2013] )” (People v. McCombs, 47 Misc.3d 44, 48 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; see also People v. Lent, 29 Misc.3d 14 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v. Lebrecht, 13 Misc.3d 45 [App Term, 2d Dept, 9th & 10th Jud Dists 2006] ). Thus, it was not necessary that either of the reports' authors testify as to the basis of their knowledge of the information stated in the record (see e.g. People v. Hao Lin, 46 Misc.3d 20, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ).
It was not necessary for the testing officer to be qualified to give evidence as to the science and mechanical technology underlying the Intoxilyzer 5000EN (see 10 NYCRR 59.4 [b] ). The scientific reliability of the instrument “is no longer open to question” (People v. Mertz, 68 N.Y.2d 136, 148 [1986] ), and the results of the use of the instrument are therefore admissible “where the People establish that the machine ... was working properly when the test was performed and that the test was properly administered' “ (People v. Murphy, 101 AD3d 1177, 1178 [2012], quoting People v. Campbell, 73 N.Y.2d 481, 484 [1989] ). The People may establish that the particular instrument is working properly by submission of the records of its recent calibration and maintenance (see People v. Boscic, 15 NY3d 494, 498 [2010] ), which is all that is necessary to ensure that the instrument is “capable of producing accurate information when [a] defendant [is] tested” (id. at 500 ; Murphy, 101 AD3d at 1178 ). Furthermore, if the breath test is administered “by an individual possessing a permit issued by the department of health, this shall be presumptive evidence that the examination was properly given” (Vehicle and Traffic Law § 1194[4][c] ). Here, the testing officer produced such a permit, valid at the time of defendant's test, and it follows that a person, so certified, is qualified to administer a test without any other training than what is required to obtain the permit. Defendant does not challenge the nominal sufficiency of the testimony as to the manner in which the instrument had been activated, the procedure the officer had employed to run the instrument's self-diagnostic and self-calibrating pre-test functions, the adequacy of the observation period, and the propriety of the manner in which he had obtained a breath sample. Once a proper foundation is established for obtaining and reporting a test result, no further expert testimony is necessary (People v. Dauphin, 112 AD3d 471, 472 [2013] ).
Accordingly, the judgment convicting defendant of aggravated driving while intoxicated is affirmed.
MARANO, P.J., and GARGUILO, J., concur.