SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
March 20, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JERRY L. GARCIA-SANTIAGO, DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered September 30, 2005. The judgment convicted defendant, upon a non-jury verdict, of manslaughter in the first degree.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND GREEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
On appeal from a judgment convicting him following a non-jury trial of manslaughter in the first degree (Penal Law § 125.20), defendant contends that Supreme Court erred in determining that a police officer was qualified to testify as an expert witness concerning the behavior of an individual with a blood alcohol content of .03%. Defendant failed to object to the testimony of the officer on that ground and thus failed to preserve that contention for our review (see CPL 470.05 ; see generally People v Delatorres, 34 AD3d 1343, 1344, lv denied 8 NY3d 921; People v Smith, 24 AD3d 1253, lv denied 6 NY3d 818). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15  [a]). We reject defendant's further contention that the court erred in admitting the officer's testimony in evidence because it lacked a proper foundation (see generally People v Jones, 73 NY2d 427, 430), and was irrelevant (see generally People v Scarola, 71 NY2d 769, 777). The sentence is not unduly harsh or severe.
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