New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
December 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DONALD KOSTRUBAL, APPELLANT.
Appeal from a judgment of the Justice Court of the Village of Haverstraw, Rockland County (Ronald De Caprio, J.), rendered March 31, 2010.
People v Kostrubal (Donald)
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
The judgment convicted defendant, upon a jury verdict, of driving while intoxicated (per se) and driving while intoxicated (common law).
ORDERED that the judgment of conviction is affirmed.
At about 2:55 A.M. on May 2, 2009, a police officer observed defendant repeatedly drive his vehicle across double yellow lines on Route 9W in the Village of Haverstraw. After stopping defendant, the officer detected a strong odor of an alcoholic beverage on defendant's breath and observed several additional indicia of alcohol consumption. Defendant admitted that he had been drinking, and he failed several roadside sobriety tests. A field breath test revealed the presence of alcohol, and, after being arrested and given the Miranda and DWI refusal warnings, defendant consented to a test of his blood alcohol content. The test produced a reading of .19 of one per centum by weight. The People charged defendant with aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]), driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 ), and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 ). After a jury trial, defendant was acquitted of aggravated driving while intoxicated and convicted of the remaining charges.
On appeal, defendant argues that the Justice Court, in error, denied his request that the jury be permitted to consider driving while impaired as a lesser included offense of common law driving while intoxicated, and that the People's failure to establish that the police had observed defendant for the requisite pre-testing period rendered the test result inadmissible.
A conviction for the offense of driving while intoxicated (Vehicle and Traffic Law § 1192 ) requires proof that a person was "incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 428 ; see e.g. People v Velasquez, 65 AD3d 1266, 1266 ). In People v Glover (57 NY2d 61, 64 ), the Court of Appeals set forth a two-pronged test for determining whether an offense is a lesser-included of another and when the lesser offense should be charged: "The first requirement--that it is theoretically impossible to commit the greater crime without at the same time committing the lesser--is mandated by the provisions of CPL 1.20 (subd 37) and is determined by a comparative examination of the statutes defining the two crimes, in the abstract. The second, sequential requirement, prescribed by CPL 300.50 (subd 1), calls for an assessment of the evidence of the particular criminal transaction in the individual case and a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater." No reasonable view of the evidence in this matter supports the inference that defendant was merely impaired by alcohol but not intoxicated (see e.g. People v McNamara, 269 AD2d 544, 545 ; People v Briggs, 81 AD2d 1017 ; cf. People v Mason, 299 AD2d 724, 725 ).
The defense did not object at trial to the admission of the breathalyzer test results. Although, on summation, the defense urged the jury to reject the test results as unsupported by sufficient proof of pre-testing observation of defendant, such comment cannot be invoked as a basis for preserving defendant's claim, on appeal, that the test results should not have been admitted into evidence on that ground (see CPL 470.05 ; People v Hawkins, 11 NY3d 484, 492 ; People v Gray, 86 NY2d 10, 19 ). In any event, the claim is without merit. Proof of the required "continuous observation" period (Department of Health Regulations [10 NYCRR] § 59.5 [b]; see also Vehicle and Traffic Law § 1194  [c]) is not a predicate condition to the admission of breathalyzer test results; rather, it "goes only to the weight to be afforded the test result, not its admissibility"' (People v Lent, 29 Misc 3d 14, 21 [App Term, 9th & 10th Jud Dists 2010], quoting People v Schuessler, 14 Misc 3d 30, 32 [App Term, 9th & 10th Jud Dists 2006]; see also People v Terrance, 120 AD2d 805, 807 ). Moreover, the observation requirement is not strictly construed. "Neither the statute, the regulations nor the exercise of reason call for [a] constant vigil" (People v Williams, 96 AD2d 972, 979 , revd on other grounds 62 NY2d 765 ; see also People v McDonough, 132 AD2d 997, 998 ). It is noted that at trial defendant never claimed that, during the period in question, he put anything in his mouth or that anything occurred that would affect the test result (see People v Lebrecht, 13 Misc 3d 45, 51 [App Term, 9th & 10th Jud Dists 2006]).
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: December 10, 2012
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