Opinion
2014-07-16
The PEOPLE, etc., respondent, v. Chetram BHAGWANDIN, appellant.
Green & Willstatter, White Plains, N.Y. (Theodore S. Green of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Laurie G. Sapakoff, and Richard Longworth Hecht of counsel), for respondent.
Green & Willstatter, White Plains, N.Y. (Theodore S. Green of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Laurie G. Sapakoff, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Zambelli, J.), rendered October 25, 2011, convicting him of aggravated driving while intoxicated, driving while intoxicated (two counts), unlicensed driving, and speeding, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court properly declined to admit into evidence the defendant's purported copy of the instruction manual for the breathalyzer instrument on the ground that it was unauthenticated ( see People v. Feldman, 299 N.Y. 153, 168, 85 N.E.2d 913;People v. Laracuente, 21 A.D.3d 1389, 1391, 801 N.Y.S.2d 676). In addition, the Supreme Court properly denied the defendant's request for a judicial subpoena duces tecum to compel production of the copy of the manual in use by the County of Westchester or the New York State Police ( see Matter of County of Nassau Police Dept. v. Judge, 237 A.D.2d 354, 654 N.Y.S.2d 174;Matter of Constantine v. Leto, 157 A.D.2d 376, 377, 557 N.Y.S.2d 611,affd.77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392).
The defendant argues that the Supreme Court deprived him of his constitutional due process rights to a fair trial and to present a defense when it declined to take judicial notice of the definition of the term “civil twilight,” an alleged time of day. These claims are unpreserved for appellate review ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61). In any event, these claims are without merit, as it was an appropriate exercise of the court's discretion to decline to take judicial notice of the definition of “civil twilight” on the ground it would be confusing to the jury ( see Hunter v. New York, Ontario & W.R.R. Co., 116 N.Y. 615, 621, 23 N.E. 9;Ptasznik v. Schultz, 247 A.D.2d 197, 198–199, 679 N.Y.S.2d 665).
Contrary to the defendant's further contention, the People established an adequate evidentiary foundation for the admission into evidence of the breathalyzer results ( see People v. Boscic, 15 N.Y.3d 494, 497, 499–500, 912 N.Y.S.2d 556, 938 N.E.2d 989;People v. Todd, 38 N.Y.2d 755, 756, 381 N.Y.S.2d 50, 343 N.E.2d 767;People v. Travis, 67 A.D.3d 1034, 1035, 890 N.Y.S.2d 552;People v. Murphy, 101 A.D.3d 1177, 1178, 956 N.Y.S.2d 207).
The defendant contends that the Supreme Court deprived him of his constitutional rights to a fair trial, to present a defense, and to confront adverse witnesses by improperly curtailing his attorney's cross-examination of the People's toxicology expert, restricting his attorney's direct examination of his expert witness, and restricting his attorney's direct examination of him. These contentions are unpreserved for appellate review ( see People v. Lane, 7 N.Y.3d at 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;People v. Sostre, 51 N.Y.2d 958, 960, 435 N.Y.S.2d 702, 416 N.E.2d 1038;People v. Johnson, 40 A.D.3d 1011, 1012, 837 N.Y.S.2d 222;People v. Oguendo, 305 A.D.2d 140, 141, 759 N.Y.S.2d 457;People v. Robinson, 41 A.D.3d 1183, 1183–1184, 837 N.Y.S.2d 800) and, in any event, are without merit ( see People v. Borukhova, 89 A.D.3d 194, 222, 931 N.Y.S.2d 349;People v. Francisco, 44 A.D.3d 870, 843 N.Y.S.2d 439;see also People v. Wilkins, 221 A.D.2d 392, 393, 633 N.Y.S.2d 357;People v. Ashner, 190 A.D.2d 238, 246–247, 597 N.Y.S.2d 975).
The Supreme Court appropriately instructed the jury that a breathalyzer test administered by a person possessing a valid New York State Department of Health permit allows, but does not require, an inference that the test was properly conducted ( seeVehicle Traffic Law § 1194[4][c] ).
The defendant's remaining contention is without merit. SKELOS, J.P., DILLON, ROMAN and MALTESE, JJ., concur.