Opinion
2007-1066 N CR.
Decided October 30, 2008.
Appeal from a judgment of the District Court of Nassau County, First District (Norman St. George, J.), rendered June 21, 2007. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated. The appeal brings up for review an order of said court, dated April 12, 2007, denying defendant's motion to suppress certain evidence.
Judgment of conviction affirmed.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Approximately two years after defendant was arraigned and before trial, he obtained new counsel, who, inter alia, moved to suppress the results of a chemical test taken following defendant's arrest, on the ground that the police lacked reasonable suspicion to stop his vehicle. The court below denied that branch of the motion as untimely. At trial, Police Officer Nicole Stubbs testified that she observed defendant driving over the posted speed limit and swerving in and out of the lanes of traffic. She testified that she noticed extensive damage to defendant's vehicle. After stopping defendant, Officer Stubbs observed that defendant's speech was slurred, his eyes were bloodshot and he smelled of alcohol. Police Officer Salvatore Mustreda testified that the Intoxilyzer machine used to test defendant's blood alcohol level was operating properly and that the solution was in proper working order at the time the test was administered. The certified records of calibration were admitted into evidence without objection. A chemical test of defendant's blood alcohol content produced a reading of .12%. The jury found defendant guilty of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]).
On appeal, defendant argues that he was denied the effective assistance of counsel because his initial attorney never moved to suppress the chemical breath results on the ground that said results were unreliable, and that the police lacked reasonable suspicion to stop defendant's vehicle.
We find that the court below properly denied defendant's belated motion to suppress the Intoxilyzer test results. Defendant's motion was untimely since more than 45 days elapsed after arraignment (CPL 255.20) and defendant failed to demonstrate good cause for the delay in making the motion. While defendant argues on appeal, for the first time, that he was denied the effective assistance of counsel because his first attorney failed to make a timely motion to suppress, the failure to make a particular pretrial motion does not, by itself, establish ineffective assistance of counsel ( see People v Rivera, 71 NY2d 705, 709). Furthermore, defendant has not demonstrated the absence of strategic or other legitimate explanations for counsel's failure to move to suppress said evidence. Absent such a showing, it is presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing such relief ( id.). Moreover, the issue regarding the unreliability of the simulator solution used when testing defendant's blood alcohol level was not raised in the belated motion to suppress the evidence, and the issue may not be raised for the first time on appeal ( see People v Paulin, 70 NY2d 685, 687). Additionally, there was sufficient foundation for admission of the Intoxilyzer test results into evidence since the test was administered by a qualified operator, and certificates of calibration, the analysis for ampules and simulator solution were admitted into evidence ( see People v Freeland, 68 NY2d 699; People v Brunelle, 255 AD2d 331).
We further find that the Intoxilyzer test results should not be suppressed on the ground that the stop was illegal. The evidence adduced at trial established that Officer Stubbs had probable cause to stop defendant for a traffic infraction, and, therefore, the stop was lawful ( see People v Robinson, 97 NY2d 341, 348-349; People v White, 40 AD3d 535, 536).
Accordingly, the judgment of conviction is affirmed.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.