HGN test in New York

2019"Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability" ( People v Tetrault , 53 AD3d 558, 559 [internal citation marks omitted]).

2019"Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability" ( People v Tetrault , 53 AD3d 558, 559 [internal citation marks omitted]).

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2017Absent from the suppression hearing was evidence of a pre-arrest admission (see People v Jacob, 81 AD3d 977, 978 [2011]; People v Rossi, 163 AD2d 660, 661 [1990]; People v Dimiceli, 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia (see People v Bohacek, 95 AD3d 1592 , 1594 [2012]; People v Shapiro, 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence (see People v Ortiz, 6 Misc 3d 1024[A] , 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, Bronx County 2004]), or even testimony by a

2017Absent from the suppression hearing was evidence of a pre-arrest admission ( see People v Jacob , 81 AD3d 977 , 978 [2011]; People v Rossi , 163 AD2d 660, 661 [1990]; People v Dimiceli , 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia ( see People v Bohacek , 95 AD3d 1592 , 1594 [2012]; People v Shapiro , 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence ( see People v Ortiz , 6 Misc 3d 1024 [A], 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, NY County 2004]), or even testimon

2017Absent from the suppression hearing was evidence of a pre-arrest admission (see People v Jacob, 81 AD3d 977, 978 [2011]; People v Rossi, 163 AD2d 660, 661 [1990]; People v Dimiceli, 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia (see People v Bohacek, 95 AD3d 1592 , 1594 [2012]; People v Shapiro, 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence (see People v Ortiz, 6 Misc 3d 1024[A] , 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, Bronx County 2004]), or even testimony by a

2017Absent from the suppression hearing was evidence of a pre-arrest admission (see People v Jacob, 81 AD3d 977, 978 [2011]; People v Rossi, 163 AD2d 660, 661 [1990]; People v Dimiceli, 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia (see People v Bohacek, 95 AD3d 1592 , 1594 [2012]; People v Shapiro, 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence (see People v Ortiz, 6 Misc 3d 1024[A] , 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, Bronx County 2004]), or even testimony by a

2017Absent from the suppression hearing was evidence of a pre-arrest admission (see People v Jacob, 81 AD3d 977, 978 [2011]; People v Rossi, 163 AD2d 660, 661 [1990]; People v Dimiceli, 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia (see People v Bohacek, 95 AD3d 1592 , 1594 [2012]; People v Shapiro, 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence (see People v Ortiz, 6 Misc 3d 1024[A] , 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, Bronx County 2004]), or even testimony by a

2017Absent from the suppression hearing was evidence of a pre-arrest admission ( see People v Jacob , 81 AD3d 977 , 978 [2011]; People v Rossi , 163 AD2d 660, 661 [1990]; People v Dimiceli , 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia ( see People v Bohacek , 95 AD3d 1592 , 1594 [2012]; People v Shapiro , 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence ( see People v Ortiz , 6 Misc 3d 1024 [A], 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, NY County 2004]), or even testimon

2017Absent from the suppression hearing was evidence of a pre-arrest admission (see People v Jacob, 81 AD3d 977, 978 [2011]; People v Rossi, 163 AD2d 660, 661 [1990]; People v Dimiceli, 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia (see People v Bohacek, 95 AD3d 1592 , 1594 [2012]; People v Shapiro, 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence (see People v Ortiz, 6 Misc 3d 1024[A] , 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, Bronx County 2004]), or even testimony by a

2017Absent from the suppression hearing was evidence of a pre-arrest admission ( see People v Jacob , 81 AD3d 977 , 978 [2011]; People v Rossi , 163 AD2d 660, 661 [1990]; People v Dimiceli , 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia ( see People v Bohacek , 95 AD3d 1592 , 1594 [2012]; People v Shapiro , 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence ( see People v Ortiz , 6 Misc 3d 1024 [A], 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, NY County 2004]), or even testimon

2008“Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability” (.People v Hammond, 35 AD3d 905, 907 [2006]; see People v Warner, 45 AD3d 1182 [2007]; People v Gruñe, 12 AD3d 944, 945 [2004]; People v Prue, 8 AD3d 894, 897 [2004]; People v Gallup, 302 AD2d 681, 684 [2003]).

2008“Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability” (.People v Hammond, 35 AD3d 905, 907 [2006]; see People v Warner, 45 AD3d 1182 [2007]; People v Gruñe, 12 AD3d 944, 945 [2004]; People v Prue, 8 AD3d 894, 897 [2004]; People v Gallup, 302 AD2d 681, 684 [2003]).

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2017Absent from the suppression hearing was evidence of a pre-arrest admission (see People v Jacob, 81 AD3d 977, 978 [2011]; People v Rossi, 163 AD2d 660, 661 [1990]; People v Dimiceli, 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia (see People v Bohacek, 95 AD3d 1592 , 1594 [2012]; People v Shapiro, 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence (see People v Ortiz, 6 Misc 3d 1024[A] , 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, Bronx County 2004]), or even testimony by a

2017Absent from the suppression hearing was evidence of a pre-arrest admission ( see People v Jacob , 81 AD3d 977 , 978 [2011]; People v Rossi , 163 AD2d 660, 661 [1990]; People v Dimiceli , 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia ( see People v Bohacek , 95 AD3d 1592 , 1594 [2012]; People v Shapiro , 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence ( see People v Ortiz , 6 Misc 3d 1024 [A], 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, NY County 2004]), or even testimon

2017Absent from the suppression hearing was evidence of a pre-arrest admission (see People v Jacob, 81 AD3d 977, 978 [2011]; People v Rossi, 163 AD2d 660, 661 [1990]; People v Dimiceli, 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia (see People v Bohacek, 95 AD3d 1592 , 1594 [2012]; People v Shapiro, 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence (see People v Ortiz, 6 Misc 3d 1024[A] , 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, Bronx County 2004]), or even testimony by a

2017Absent from the suppression hearing was evidence of a pre-arrest admission ( see People v Jacob , 81 AD3d 977 , 978 [2011]; People v Rossi , 163 AD2d 660, 661 [1990]; People v Dimiceli , 27 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), physical evidence of drug use, such as actual possession of drugs or associated paraphernalia ( see People v Bohacek , 95 AD3d 1592 , 1594 [2012]; People v Shapiro , 141 AD2d 577, 578 [1988]), pre-arrest toxicological evidence ( see People v Ortiz , 6 Misc 3d 1024 [A], 2004 NY Slip Op 51821[U] , *3-4 [Crim Ct, NY County 2004]), or even testimon

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2018Contrary to defendant's further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. "'[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability'" ( People v Julius , 93 AD3d 1296 , 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v Tetrault , 53 AD3d 558 , 558—559 [2008], lv denied 11 NY3d 835 [2

2016We need not determine whether the court accorded the appropriate authoritative weight to the NHTSA procedures and properly applied them to the facts (here, to only the HGN test), because, on the facts and circumstances presented, a negative result of one test inadequately administered and of two tests which defendant declined to perform is of no exculpatory value, and because probable cause to arrest for a Vehicle and Traffic Law § 1192 violation " need not always be premised upon the performance of field sobriety tests or any specific number of such tests' " ( People v Wallgren , 94 AD3d 1339

2016We need not determine whether the court accorded the appropriate authoritative weight to the NHTSA procedures and properly applied them to the facts (here, to only the HGN test), because, on the facts and circumstances presented, a negative result of one test inadequately administered and of two tests which defendant declined to perform is of no exculpatory value, and because probable cause to arrest for a Vehicle and Traffic Law § 1192 violation " need not always be premised upon the performance of field sobriety tests or any specific number of such tests' " ( People v Wallgren , 94 AD3d 1339

2015To the extent that defendant now challenges the trooper’s training, experience and actual administration of the HGN test and/or points to certain claimed inconsistencies in the trooper’s testimony, suffice it to say that these issues were thoroughly vetted during the course of defense counsel’s extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri, 34 AD3d 986, 987 [2006]).

2015To the extent that defendant now challenges the trooper’s training, experience and actual administration of the HGN test and/or points to certain claimed inconsistencies in the trooper’s testimony, suffice it to say that these issues were thoroughly vetted during the course of defense counsel’s extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri, 34 AD3d 986, 987 [2006]).

2015To the extent that defendant now challenges the trooper’s training, experience and actual administration of the HGN test and/or points to certain claimed inconsistencies in the trooper’s testimony, suffice it to say that these issues were thoroughly vetted during the course of defense counsel’s extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri, 34 AD3d 986, 987 [2006]).

2015To the extent that defendant now challenges the trooper’s training, experience and actual administration of the HGN test and/or points to certain claimed inconsistencies in the trooper’s testimony, suffice it to say that these issues were thoroughly vetted during the course of defense counsel’s extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri, 34 AD3d 986, 987 [2006]).

2015To the extent that defendant now challenges the trooper’s training, experience and actual administration of the HGN test and/or points to certain claimed inconsistencies in the trooper’s testimony, suffice it to say that these issues were thoroughly vetted during the course of defense counsel’s extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri, 34 AD3d 986, 987 [2006]).

2015To the extent that defendant now challenges the trooper’s training, experience and actual administration of the HGN test and/or points to certain claimed inconsistencies in the trooper’s testimony, suffice it to say that these issues were thoroughly vetted during the course of defense counsel’s extensive cross-examination of the trooper (see People v Sydlar, 106 AD3d 1368, 1370 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Carota, 93 AD3d 1072, 1074 [2012]; People v Silvestri, 34 AD3d 986, 987 [2006]).

2015Thus, while a different verdict may not have been unreasonable, upon viewing the record as a whole, we find that the jury’s verdict is in accord with the weight of the evidence (see People v Carota, 93 AD3d at 1073-1074 ; People v Owens, 45 AD3d 1058, 1059 [2007]; People v Silvestri, 34 AD3d at 987 ).

2015Thus, while a different verdict may not have been unreasonable, upon viewing the record as a whole, we find that the jury’s verdict is in accord with the weight of the evidence (see People v Carota, 93 AD3d at 1073-1074 ; People v Owens, 45 AD3d 1058, 1059 [2007]; People v Silvestri, 34 AD3d at 987 ).

2008“Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability” (.People v Hammond, 35 AD3d 905, 907 [2006]; see People v Warner, 45 AD3d 1182 [2007]; People v Gruñe, 12 AD3d 944, 945 [2004]; People v Prue, 8 AD3d 894, 897 [2004]; People v Gallup, 302 AD2d 681, 684 [2003]).

2008“Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability” (.People v Hammond, 35 AD3d 905, 907 [2006]; see People v Warner, 45 AD3d 1182 [2007]; People v Gruñe, 12 AD3d 944, 945 [2004]; People v Prue, 8 AD3d 894, 897 [2004]; People v Gallup, 302 AD2d 681, 684 [2003]).

2008“Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability” (.People v Hammond, 35 AD3d 905, 907 [2006]; see People v Warner, 45 AD3d 1182 [2007]; People v Gruñe, 12 AD3d 944, 945 [2004]; People v Prue, 8 AD3d 894, 897 [2004]; People v Gallup, 302 AD2d 681, 684 [2003]).

2008“Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability” (.People v Hammond, 35 AD3d 905, 907 [2006]; see People v Warner, 45 AD3d 1182 [2007]; People v Gruñe, 12 AD3d 944, 945 [2004]; People v Prue, 8 AD3d 894, 897 [2004]; People v Gallup, 302 AD2d 681, 684 [2003]).

2007Giving due deference to the jury’s opportunity to observe witness demeanor and make credibility determinations as to conflicting testimony, we are satisfied that defendant’s conviction is not against the weight of the evidence (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Neil, 30 AD3d 901, 901-902 [2006], lv denied 7 NY3d 869 [2006]).

2007Giving due deference to the jury’s opportunity to observe witness demeanor and make credibility determinations as to conflicting testimony, we are satisfied that defendant’s conviction is not against the weight of the evidence (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Neil, 30 AD3d 901, 901-902 [2006], lv denied 7 NY3d 869 [2006]).

2007Giving due deference to the jury’s opportunity to observe witness demeanor and make credibility determinations as to conflicting testimony, we are satisfied that defendant’s conviction is not against the weight of the evidence (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Neil, 30 AD3d 901, 901-902 [2006], lv denied 7 NY3d 869 [2006]).

2007Giving due deference to the jury’s opportunity to observe witness demeanor and make credibility determinations as to conflicting testimony, we are satisfied that defendant’s conviction is not against the weight of the evidence (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Neil, 30 AD3d 901, 901-902 [2006], lv denied 7 NY3d 869 [2006]).

2006Further, by specifically objecting to the People’s request to instruct the jury on the lesser included offense of driving while ability impaired, defendant waived his present argument that County Court erred in refusing to so charge (see People v Williams, 178 AD2d 163, 164 [1991], lv denied 79 NY2d 924 [1992]; People v Campbell, 166 AD2d 183 , 183 [1990], lv denied 77 NY2d 837 [1991]).

2006Further, by specifically objecting to the People’s request to instruct the jury on the lesser included offense of driving while ability impaired, defendant waived his present argument that County Court erred in refusing to so charge (see People v Williams, 178 AD2d 163, 164 [1991], lv denied 79 NY2d 924 [1992]; People v Campbell, 166 AD2d 183 , 183 [1990], lv denied 77 NY2d 837 [1991]).