Calendar Date: April 23, 2013
Brennan & White, LLP, Queensbury (William J. White of counsel), for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Before: Peters, P.J., Rose, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 6, 2012, convicting defendant following a nonjury trial of the crimes of driving while intoxicated and driving while ability impaired.
On the evening of June 8, 2011, defendant left her place of employment between 8:00 p.m. and 8:30 p.m. and drove to Ashes Pub & Grill in the Town of Warrensburg, Warren County, where she consumed a 16-ounce "Jack and Coke." Approximately 45 minutes later, defendant left that establishment and drove to The Garrison in the Village of Lake George, Warren County, where — over the course of the next hour or so — she consumed two "Twisted Teas" and a shot of whiskey. Shortly after leaving The Garrison around 10:00 p.m., defendant began to feel the effects of the alcohol she had consumed and, roughly 30 minutes later, defendant called her husband, Pete Menegan, and asked him to meet her at the Valero gas station — located off exit 17 of Interstate 87 in Saratoga County — and give her a ride home. Upon arriving at the gas station, defendant backed her car into a parking space, striking a parked tractor trailer in the process. Menegan thereafter arrived but, following a conversation with defendant, Menegan called 911 to report that defendant was "pretty drunk" and had "backed into something" in the parking lot, and that he, in turn, was "now... leaving her [t]here." At 11:22 p.m., and in response to Menegan's 911 call, Trooper Robert Schmidt Jr. was dispatched to the Valero gas station. Upon arriving, Schmidt observed a vehicle matching the description he had been given and, as he approached the driver — later identified as defendant — he noticed that the hood of the car was still warm and that debris from a cracked rear tail light was on the ground. Schmidt then spoke with defendant, who admitted that she had been drinking and acknowledged that she should not be driving, prompting Schmidt to administer three field sobriety tests — all of which defendant failed . Defendant was placed under arrest for driving while intoxicated at approximately 11:46 p.m., read her rights and placed in the patrol vehicle, whereupon she lamented the fact that she was "get[ting] arrested because [she was] impaired and... hit a truck." A breath test conducted at 1:06 a.m. revealed that defendant had a blood alcohol content (hereinafter BAC) of.11%.
Defendant thereafter was indicted and charged with two counts of driving while intoxicated (hereinafter DWI). Following a nonjury trial, defendant was acquitted of the common-law DWI count but convicted of the lesser included offense of driving while ability impaired (see Vehicle and Traffic Law § 1192 ), as well as DWI per se (see Vehicle and Traffic Law § 1192 ). County Court sentenced defendant, who had prior alcohol-related convictions, to, among other things, four months in jail followed by five years of probation. Defendant now appeals.
Defendant initially contends that the People failed to lay a proper foundation for the admission of the breath test results. We disagree. "Breath test results are admissible where the People establish that the machine is accurate, that it was working properly when the test was performed and that the test was properly administered" (People v Murphy, 101 A.D.3d 1177, 1178  [internal quotation marks and citations omitted]; see People v Travis, 67 A.D.3d 1034, 1035 , lv denied 14 N.Y.3d 845 ).
Here, the testimony of the trooper who administered the breath test to defendant, together with the documents pertaining to, among other things, the calibration and maintenance of the Alcotest 9510 (the machine upon which defendant's test was performed) and the chemicals used during the test, constituted "evidence from which the trier of fact could reasonably conclude that the test results were derived from a properly functioning machine using properly constituted chemicals" (People v Kulk, 103 A.D.3d 1038, 1041  [internal quotation marks and citation omitted]). As for defendant's challenge to the admissibility of certain supporting documents, defendant did not object to the admission of Schmidt's breath analysis operator certification (exhibit No. 4) or the actual breath test results (exhibit No. 8), and we are satisfied that the breath test rules (exhibit No. 5), calibration and maintenance records (exhibit No. 6) and reference gas records (exhibit No. 7) were properly certified and admitted pursuant to CPLR 4518 (c). Finally, to the extent that defendant's brief may be read as asserting a Confrontation Clause violation, we note that "documents pertaining to the routine inspection, maintenance and calibration of breathalyzer machines are nontestimonial under Crawford and its progeny" (People v Pealer, 20 N.Y.3d 447, 456 ; see People v Hulbert, 93 A.D.3d 953, 953-954 ).
Defendant next asserts that County Court erred in admitting the testimony offered by the People's expert witness, Michael Holland. Initially, to the extent that defendant contends that Holland, a board-certified toxicologist, was not properly qualified as an expert witness, we disagree. Simply put, we are satisfied that Holland "possessed sufficient education, training and experience from which County Court could infer that [his] opinion would be reliable" (People v Surdis, 77 A.D.3d 1018, 1019 , lv denied 16 N.Y.3d 800 ; see People v Wyant, 98 A.D.3d 1277, 1278 ; see also Matott v Ward, 48 N.Y.2d 455, 459 ).
We reach a similar conclusion with respect to defendant's generalized challenge to the theory of reverse extrapolation — the process by which an expert, taking into consideration, among other things, an individual's known BAC at a particular point in time, renders an opinion as to the individual's BAC at an earlier point in time. Assuming the expert in question is qualified and a proper foundation has been laid for such opinion, reverse extrapolation testimony may be admitted (see e.g. People v Dombrowski-Bove, 300 A.D.2d 1122, 1123 ; People v O'Connor, 290 A.D.2d 519, 520 , lv denied 97 N.Y.2d 758 ; People v Cross, 273 A.D.2d 702, 703 ; People v MacDonald, 227 A.D.2d 672, 674-675 , affd 89 N.Y.2d 908 ). Here, however, the People failed to lay a proper factual foundation for Holland's testimony and, therefore, defendant's objection in this regard should have been sustained. 
Turning to the weight and sufficiency of the evidence supporting defendant's conviction, we note that defendant failed to renew her motion to dismiss for legally insufficient evidence at the close of all proof and, therefore, her argument on this point is not preserved for our review (see People v Newland, 83 A.D.3d 1202, 1204 n , lv denied 17 N.Y.3d 798 ). That said, "our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial" (People v Burch, 97 A.D.3d 987, 989 n 2  [internal quotation marks and citations omitted], lv denied 19 N.Y.3d 1101 ). Here, in light of Schmidt's observations of defendant and her vehicle on the night in question and defendant's own testimony, we find ample evidence to support defendant's conviction of driving while ability impaired, which required nothing more than a showing that defendant operated a motor vehicle while her ability to do so was "impaired by the consumption of alcohol" (Vehicle and Traffic Law § 1192 ). Notably, defendant testified that after leaving The Garrison and while en route to her home, she "started to feel not right" and realized "that the alcohol [she had consumed] was hitting [her]." When pressed on this point, defendant acknowledged that she started to feel "impaired" after departing for home, knew that she "needed to pull over" and called Menegan en route because she wanted "a safe ride home." Such testimony, coupled with other proof in the record, is more than adequate to sustain defendant's conviction in this regard.
We reach a similar conclusion with respect to defendant's conviction of DWI per se, i.e., operating a motor vehicle with a BAC of.08% or greater (see Vehicle and Traffic Law § 1192 ). Although Holland's reverse extrapolation testimony should not have been admitted into evidence, we deem this error to be harmless (see People v Heidelmark, 214 A.D.2d 767, 769 , lv denied85 N.Y.2d 973 ). The breathalyzer test was administered within two hours of defendant's arrest and revealed a BAC of.11%, which is sufficient to establish a prima facie violation of Vehicle and Traffic Law § 1192 (2). Such proof, coupled with defendant's admissions, slurred speech, glassy eyes and failed field sobriety tests, as well as Schmidt's observations of defendant's vehicle, support the finding that defendant operated a motor vehicle with a BAC of.08% or greater in violation of Vehicle and Traffic Law § 1192 (2) (see People v Mertz, 68 N.Y.2d 136, 146 ; People v Arnold, 2 A.D.3d 975, 975 , lv denied1 N.Y.3d 594 ; People v Poje, 270 A.D.2d 649, 650-651 , lv denied95 N.Y.2d 802 ; People v Stiffler, 237 A.D.2d 753, 754 , lv denied90 N.Y.2d 864 ; see also People v Mojica, 62 ...