People v. Graseck (Jonas)

People v Graseck (2021 NY Slip Op 50627(U)) [*1] People v Graseck (Jonas) 2021 NY Slip Op 50627(U) [72 Misc 3d 129(A)] Decided on July 1, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, HELEN VOUTSINAS, JJ 2018-2063 S CR The People of the State of New York, Respondent, against Jonas M. Graseck, Appellant. Blangiardo & Blangiardo (Frank J. Blangiardo of counsel), for appellant. Suffolk County District Attorney (Kathleen Becker Langlan of counsel), for respondent. Appeal from four judgments of the Justice Court of the Town of Southold, Suffolk County (Eileen Powers, J.), rendered August 24, 2018. The judgments convicted defendant, upon a jury verdict, of driving while intoxicated (per se) and driving while intoxicated (common law), operating an unregistered vehicle, and two charges of speeding, respectively, and imposed sentences. ORDERED that so much of the appeal as is from the three judgments convicting defendant of operating an unregistered vehicle and two charges of speeding, respectively, is dismissed as abandoned; and it is further, ORDERED that the judgment convicting defendant of driving while intoxicated (per se) and driving while intoxicated (common law) is affirmed. Defendant was charged in a two-count information with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), and, in three separate simplified traffic informations with operating an unregistered vehicle (Vehicle and Traffic Law § 401 [1] [a]) and two charges of speeding (Vehicle and Traffic Law § 1180 [a], [b]), respectively. Following a jury trial, defendant was convicted of all charges and the Justice Court imposed sentences. Defendant appeals from all four judgments, but only challenges the judgment convicting him of violating Vehicle and Traffic Law § 1192 (2) and (3), contending that the trial court committed reversible error by allowing the prosecution to introduce a chemical breath analysis report into evidence on the redirect examination of a breath technician. Generally, the scope of redirect examination is governed by the sound discretion of the trial court (see People v Melendez, 55 NY2d 445 [1982]). A court is not prevented from admitting evidence on redirect examination that would have been better proffered upon direct examination (see People v James, 90 AD3d 1249 [2011]). Additionally, while the accuracy of breath analysis instruments used for measuring blood alcohol content (BAC) are recognized (see People v Mertz, 68 NY2d 136, 148 [1986]; People v Bankupally, 51 Misc 3d 144[A], 2016 NY Slip Op 50710[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]), before the results of such a breath analysis can be admitted into evidence, the People must establish that the instrument, in this case an Intoxilyzer 9000, was accurate, that it was working properly when the breath test was performed and that the test was properly administered (see People v Boscic, 15 NY3d 494, 498 [2010]; People v Campbell, 73 NY2d 481 [1989]; People v Freeland, 68 NY2d 699, 700 [1986]; People v Flores, 62 Misc 3d 46 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). The People may establish that the particular instrument was working properly by submission of the records of its calibration and maintenance covering the period of when it was used to test the defendant (see Boscic, 15 NY3d at 498; Bankupally, 51 Misc 3d 144[A], 2016 NY Slip Op 50710[U]), which is also all that is necessary to ensure that the instrument was "capable of producing accurate information when [the] defendant was tested" (Boscic, 15 NY3d at 500). The last condition is satisfied by proof of "the manner in which the instrument had been activated, the procedure the officer had employed to run the instrument's self-diagnostic and self-calibrating pre-test functions, the adequacy of the observation period, and the propriety of the manner in which he [or she] had obtained a breath sample" (Bankupally, 51 Misc 3d 144[A], 2016 NY Slip Op 50710[U], *2; see Flores, 62 Misc 3d at 51). Furthermore, as the test here was administered "by an individual possessing a permit issued by the Department of Health," there was "presumptive evidence that the examination was properly given" (Vehicle and Traffic Law § 1194 [4] [c]; see Bankupally, 51 Misc 3d 144[A], 2016 NY Slip Op 50710[U]). As the People had established a sufficient foundation on direct examination for the admissibility of defendant's BAC test results, i.e., an Intoxilyzer 9000 printout, we find that it was not an improvident exercise of its discretion for the Justice Court to have allowed the prosecution to introduce the printout into evidence on the redirect examination of the breath technician (see Boscic, 15 NY3d at 498; People v DeMarasse, 85 NY2d 842, 845 [1995]; Mertz, 68 NY2d at 148; Flores, 62 Misc 3d 46; Bankupally, 51 Misc 3d 144[A], 2016 NY Slip Op 50710[U]). In any event, even assuming the Justice Court erred in admitting the challenged evidence, the error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]), which included: the arresting officer's testimony that he had observed defendant exhibiting indicia of intoxication when he exited the vehicle and that defendant had failed standardized field sobriety tests; the breath technician's testimony as to the results of the Intoxilyzer 9000 chemical breath test; and defendant's admissions to both officers that he had consumed alcoholic beverages before operating his vehicle. Accordingly, the judgment convicting defendant of driving while intoxicated (per se) and driving while intoxicated (common law) is affirmed. EMERSON, J.P., GARGUILO and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 1, 2021