Opinion
2013-12-12
The PEOPLE of the State of New York, Respondent, v. Espasien DAUPHIN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), for respondent.
GONZALEZ, P.J., ANDRIAS, SAXE, RICHTER, CLARK, JJ.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered August 29, 2011, convicting defendant, after a jury trial, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a term of three years' probation and a $1000 fine, unanimously affirmed.
The court properly denied defendant's speedy trial motion. The motion turns on an adjournment that the court properly excluded because the People's statement on the morning of June 2 that “we are ready at 2:15” constituted a statement of present readiness. Actual readiness does not require that the People be able to call their first witness to the stand at the very moment they represent that they are ready ( see People v. Wilson, 86 N.Y.2d 753, 631 N.Y.S.2d 127, 655 N.E.2d 168 [1995]; People v. Camillo, 279 A.D.2d 326, 719 N.Y.S.2d 239 [1st Dept.2001]; People v. Dushain, 247 A.D.2d 234, 236, 669 N.Y.S.2d 30 [1998], lv. denied91 N.Y.2d 1007, 676 N.Y.S.2d 135, 698 N.E.2d 964 [1998] ). The People's representation that they would be prepared to proceed with trial that afternoon—which defendant does not contradict—showed that they had “done all that is required of them to bring the case to a point where it may be tried” (People v. England, 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994] ). In any event, the adjournment was not chargeable to the People because defense counsel specifically requested an adjournment ( seeCPL 30.30[4][b] ).
The court properly allowed the trained officer who operated an Intoxilyzer machine to testify to the meaning of an “insufficient sample” message, i.e., that the appearance of this message indicates that the blood alcohol content score generated by the machine represented the tested individual's lowest possible blood alcohol content. This testimony amounted to reporting the results of the test, which, once a proper foundation had been laid, was permissible without expert testimony ( see People v. Mertz, 68 N.Y.2d 136, 148, 506 N.Y.S.2d 290, 497 N.E.2d 657 [1986] ).
We perceive no basis for reducing the sentence.