Opinion
July 12, 1985
Appeal from the Wayne County Court, Stiles, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: The trial evidence was sufficient to convict defendant of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2). The Smith and Wesson breathalyzer is judicially accepted as a reliable device for measuring blood alcohol content and the test results were properly received in evidence by the trial court ( see, People v Farrell, 58 N.Y.2d 637; People v. Gower, 42 N.Y.2d 117, 122; People v. Donaldson, 36 A.D.2d 37, 40). Any issue relative to the kind and mixture of the chemicals used in the test has not been preserved for review (CPL 470.05). Further, failure to preserve a breath sample for independent testing, although technically feasible, did not violate plaintiff's right to due process ( see, California v. Trombetta, 467 US ___, 104 S Ct 2528, 2535; People v. Torres, 125 Misc.2d 78). Finally, the sentence was not unduly harsh and excessive, and we can find no abuse of the sentencing court's discretion in imposing a 60-day term of imprisonment.