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The People of the State of New York v. Guy A. Marshall

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


July 16, 2010

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
GUY A. MARSHALL,
APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, First District (Glenn Murphy, J.), rendered April 25, 2007.

People v Marshall (Guy)

Decided on July 16, 2010

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 16, 2010

PRESENT: NICOLAI, P.J., TANENBAUM and IANNACCI, JJ

The judgment convicted defendant, upon a jury verdict, of driving while intoxicated per se, driving while intoxicated and moving from a lane unsafely.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), following a jury trial at which the People introduced evidence of the results of a test of the alcohol content of defendant's breath, a reading of .20 percent by weight. Over defendant's objection, the District Court admitted certified copies of the calibration and maintenance documents in relation to the breath test instrument as business records, on the authority of People v Lebrecht (13 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2006]). Defendant was also convicted of moving from a lane unsafely (Vehicle and Traffic Law § 1128 [a]). On appeal, defendant argues that Melendez-Diaz v Massachusetts ( US , 129 S Ct 2527 [2009]) effectively overruled Lebrecht, which had rejected a challenge based on Crawford v Washington (541 US 36 [2004]) to the admissibility, without the necessity of the records' preparers being presented as witnesses for cross-examination, of such documents as business records. Defendant also argues that the evidence of moving from a lane unsafely was legally insufficient to support the conviction, and that the conviction, in any event, was against the weight of the evidence.

For the reasons stated in People v Lent ( Misc 3d , 2010 NY Slip Op [Appeal No. 2009-512 N CR], decided herewith), the convictions of the counts of driving while intoxicated per se and driving while intoxicated are affirmed.

Defendant's claim that the evidence was legally insufficient to support the conviction of the remaining count is not preserved for appellate review (CPL 470.05 [2]; People v Gray, 86 NY3d 10, 20-21 [1995]). In any event, defendant's contention is without merit. The evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), was legally sufficient to establish defendant's guilt of moving from a lane unsafely (People v Tandle, 71 AD3d 1176 [2010]; People v Parris, 26 AD3d 393, 394 [2006]; People v Davis, 23 Misc 3d 30 [App Term, 9th & 10th Jud Dists 2009]; see also People v Chase, 186 Misc 2d 487 [App Term, 9th & 10th Jud Dists 2000]). Moreover, giving much deference to the jury's credibility determinations (see People v Lane, 7 NY3d 888, 890 [2006]; see also People v Romero, 7 NY3d 633, 644-645 [2006]), even as we conduct our own review of the evidence (see People v Danielson, 9 NY3d 342 [2007]), we find that the guilty verdict of moving from a lane unsafely was not against the weight of the evidence (see CPL 470.15 [5]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.

20100716

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