Summary
In People v Turner, 47 Misc 3d 100 (App Term, 1st Dept 2015), the court affirmed admission of the results of a PBT, where the device was on the DOH list of approved devices and was shown to be in good working order on the date of the test.
Summary of this case from People v. BrockingtonOpinion
2015-04-29
The PEOPLE of the State of New York, Respondent, v. George TURNER, Defendant–Appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn of counsel), for respondent. Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City (William J. King of counsel), and The Legal Aid Society, New York City, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn of counsel), for respondent. Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City (William J. King of counsel), and The Legal Aid Society, New York City, for appellant.
PRESENT: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
Per Curiam.
Judgment of conviction (Anthony J. Ferrara, J.), rendered November 1, 2011, affirmed.
Defendant was convicted, after a jury trial, of per se driving while intoxicated ( seeVehicle and Traffic Law § 1192[2] ) and driving while ability impaired ( seeVehicle and Traffic Law § 1192[1] ). The People's proof was strong and persuasive, including, inter alia, the arresting officers' observations of defendant's appearance and comportment at the scene, defendant's admission of drinking, the physical coordination test, as well as the results of the Intoxilyzer 5000 breath test administered at the precinct, which measured defendant's blood alcohol content at .11 percent ( seeVehicle & Traffic Law §§ 1192[1]; 1192[2]; People v. Fratangelo, 23 N.Y.3d 506, 992 N.Y.S.2d 169, 15 N.E.3d 1178 [2014] ). Indeed, defendant does not now challenge the conviction on sufficiency or weight of the evidence grounds. We find unavailing defendant's primary assignment of error, that the court erred in admitting the results of the portable field breath test administered at the scene of his traffic stop. The testing device utilized appears on the list of approved breath-testing instruments compiled by the New York State Department of Health ( see10 NYCRR 59.4[b] ), was shown to be in proper working order when the test was performed and the test was properly administered ( see People v. Boscic, 15 N.Y.3d 494, 498, 912 N.Y.S.2d 556, 938 N.E.2d 989 [2010]; People v. Murphy, 101 A.D.3d 1177, 1178, 956 N.Y.S.2d 207 [2012] ). In any event, even assuming the trial court erred in admitting the challenged evidence, the error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
The trial court properly exercised its discretion in imposing reasonable limits on defendant's cross examination of Police Officer Jacob ( see People v. Corby, 6 N.Y.3d 231, 234–235, 811 N.Y.S.2d 613, 844 N.E.2d 1135 [2005] ), and defendant was not deprived of his right to confront the witness and present a defense ( see People v. Edwards, 19 A.D.3d 170, 171, 798 N.Y.S.2d 374 [2005], lv. denied 5 N.Y.3d 828, 804 N.Y.S.2d 42, 837 N.E.2d 741 [2005] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.