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The People of the State of New York v. Leonard Dibari

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


January 30, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
LEONARD DIBARI,
APPELLANT.

Appeal from judgments of the Justice Court of the Town of North Castle, Westchester County (Elyse Lazansky, J.; op 26 Misc 3d 1220[A], 2010 NY Slip Op 50191[U]), rendered April 13, 2010.

People of State of New York v Dibari

Decided on January 30, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., LaCAVA and IANNACCI, JJ

The judgments convicted defendant, after a non-jury trial, of driving while ability impaired and speeding, respectively.

ORDERED that the appeal from the judgment convicting defendant of speeding is dismissed as abandoned; and it is further,

ORDERED that the judgment convicting defendant of driving while ability impaired is affirmed.

Defendant was charged with, among other things, driving while ability impaired. At a non-jury trial, defendant objected to the admission, as business records, of the calibration records and simulator solution certificates of the breath test device, alleging that they violated his constitutional right to confront witnesses. A trooper testified that defendant had been traveling in excess of 20 miles per hour over the posted speed limit, that defendant's eyes had been glassy, that defendant had failed all of the field sobriety tests administered at the scene and that a chemical breath test of his blood alcohol content produced a reading of .07 of one per centum. Following the trial, the Justice Court found defendant guilty of driving while ability impaired.

Defendant's contention that the admission of the certified calibration records and simulator solution certificates as business records (see CPLR 4518 [a]) violated his constitutional right to confront witnesses lacks merit (see People v Cook, 30 Misc 3d 134[A], 2011 NY Slip Op 50084[U] [App Term, 9th & 10th Jud Dists 2011]; People v Lent, 29 Misc 3d 14 [App Term, 9th & 10th Jud Dists 2010]; People v Lebrecht, 13 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2006]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of driving while ability impaired beyond a reasonable doubt. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment convicting defendant of driving while ability impaired is affirmed.

Molia, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: January 30, 2012

20120130

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