Opinion
2003-566 WCR.
Decided November 5, 2004.
Appeal by defendant from a judgment of the Justice Court, Town of Bedford, Westchester County (C. Banks J.), rendered April 17, 2003, convicting defendant, after a nonjury trial, of driving while ability impaired (Vehicle and Traffic Law § 1192) and unsafe start of a vehicle (Vehicle and Traffic Law § 1162), and imposing sentence.
Judgment of conviction unanimously affirmed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
A review of the record indicates that, prior to the start of trial, the trial court denied defendant's request for a negative inference against the People based on the police department's failure to respond to his subpoena which requested certain documents. During the direct testimony of the People's first witness, defendant was provided with documents he had not previously received and, again, requested that "a negative inference be inferred against the People." The record indicates that the subpoena was never served and the court denied this request, but provided defendant with time to review the documents. We find that the error, if any, that the trial court may have committed by failing to draw an adverse inference is harmless in view of the overwhelming evidence of defendant's guilt presented at trial ( see People v. Crimmins, 36 NY2d 230). Further, the fact that the expert's testimony was uncontradicted does not render such testimony conclusive ( see Galimberti v. Carrier Indus., 222 AD2d 649, 650; Herring v. Hayes, 135 AD2d 684), and we find that the court acted well within its discretion in rejecting the expert's testimony ( see Preston v. Young, 239 AD2d 729, 731; Mechanick v. Conradi, 139 AD2d 857). We further find that defendant was not deprived of a fair trial.