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People v. Juan C. Gaviria

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 28, 2011

PEOPLE RESPONDENT,
v.
JUAN C. GAVIRIA,
DEFENDANT-APPELLANT.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Larry R.C. Stephen, J.), rendered May 8, 2009, convicting him, upon a plea of guilty, of operating a motor vehicle while under the influence of alcohol, and imposing sentence.

Per curiam.

People v Gaviria (Juan)

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2011

PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ

Judgment of conviction (Larry R.C. Stephen, J.), rendered May 8, 2009, affirmed.

"The factual findings and credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record" (People v Parris, 26 AD3d 393, 394 [2006], lv denied 6 NY3d 851 [2006], quoting People v Parker, 306 AD2d 543, 543 [2003], lv denied 100 NY2d 644 [2003]). Here, the record, including the videotape recording submitted by the People, supports the hearing court's finding that defendant had a sufficient command of the English language to understand the police questioning and to voluntarily consent to the breath-alcohol test (see People v Perez, 27 Misc 3d 880, 882 [2010]; People v Burnet, 24 Misc 3d 292, 298 [2009]; cf. People v Garcia-Cepero, 22 Misc 3d 490, 494-495 [2008]). This conclusion finds further support in the fact that defendant had previously followed the police officer's verbal instructions on the road, answered the officer's initial questions in English and admitted that he had imbibed alcohol in the form of "about three beers" and a bottle of "Johnny Walker" whiskey (see People v Robinson, 97 NY2d 341, 347 [2001]; People v Burnet, 24 Misc 3d at 298). Accordingly, defendant's motion to suppress the results of the breath-alcohol test was properly denied under the totality of the circumstances (see People v Centerbar, 80 AD3d 1008 [2011]).

Contrary to defendant's additional contention, expert testimony as to the reliability of the breath-alcohol testing procedure was not required at the suppression hearing. Since defendant expressly and voluntarily consented to take the test after the expiration of the "deemed consent" period (see Vehicle & Traffic Law § 1194[2][a][1]), the admissibility of the breath-alcohol test results hinged on the People's showing of an adequate evidentiary foundation, namely that the breath-alcohol "detection instrument was in proper working order' at the time the test was administered" (People v Boscic, 15 NY3d 494, 498 [2010], citing People v Gower, 42 NY2d 117, 120 [1977]; see People v Atkins, 85 NY2d 1007, 1009 [1995]; People v Freeland, 68 NY2d 699, 700 [1986]). Such a showing was sufficiently made on this record (see People v Casimiro, 308 AD2d 456, 456-457 [2003], lv denied 1 NY3d 539 [2003]; People v Meytin, 30 Misc 3d 128[A], 2010 NY Slip Op 52276[U] [2010]).

We have considered defendant's remaining contentions and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 28, 2011

20110428

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