Intoxilyzer test in New York

2021A defendant who fails to act in a timely fashion in serving or filing a pretrial motion should be entitled to relief where, as here, the consequences of such defendant's tardiness would affect the fairness of the truth-finding process of the trial ( see Amadeo , 188 Misc 2d 187 ; People v Coleman , 114 Misc 2d 685, 687 [Sup Co, Kings County 1982]).

2021A defendant who fails to act in a timely fashion in serving or filing a pretrial motion should be entitled to relief where, as here, the consequences of such defendant's tardiness would affect the fairness of the truth-finding process of the trial ( see Amadeo , 188 Misc 2d 187 ; People v Coleman , 114 Misc 2d 685, 687 [Sup Co, Kings County 1982]).

2021The majority, however, reasons that the timing of the Odum decision (47 days before the suppression hearing) does not excuse the untimeliness of defendant's motion because Odum did not represent a "seed change in the law." According to the majority, the reasoning in this Court's decision, four years before Odum , in People v Rosa (112 AD3d at 551), on the involuntariness issue was, in essence, the same as in the Odum Court.

2021The majority, however, reasons that the timing of the Odum decision (47 days before the suppression hearing) does not excuse the untimeliness of defendant's motion because Odum did not represent a "seed change in the law." According to the majority, the reasoning in this Court's decision, four years before Odum , in People v Rosa (112 AD3d at 551), on the involuntariness issue was, in essence, the same as in the Odum Court.

2021Ultimately, on the record before this Court we can safely conclude that a motion to suppress the evidence on the ground now asserted on appeal would have had a strong chance of success ( see People v Caban , 5 NY3d 143, 152 [2005]).

2021Ultimately, on the record before this Court we can safely conclude that a motion to suppress the evidence on the ground now asserted on appeal would have had a strong chance of success ( see People v Caban , 5 NY3d 143, 152 [2005]).

2021An appellate court, however, is empowered to consider the trial record retrospectively to determine whether an injustice has occurred, or substantial rights of a defendant have been impaired ( People v La Belle , 18 NY2d 405, 409 [1966]; People v Helfant , 249 NY 419 [1928]).

2021An appellate court, however, is empowered to consider the trial record retrospectively to determine whether an injustice has occurred, or substantial rights of a defendant have been impaired ( People v La Belle , 18 NY2d 405, 409 [1966]; People v Helfant , 249 NY 419 [1928]).

2021Indeed, by raising the untimeliness of his motion before this Court, albeit in a different context, appellate counsel tacitly concedes that there was no "strategic or other legitimate explanation[ ]" ( People v Rivera , 71 NY2d 705, 709 [1988]) for his failure to file a motion to suppress.

2021Indeed, by raising the untimeliness of his motion before this Court, albeit in a different context, appellate counsel tacitly concedes that there was no "strategic or other legitimate explanation[ ]" ( People v Rivera , 71 NY2d 705, 709 [1988]) for his failure to file a motion to suppress.

2021However, the remedy that defendant requests — reversing the conviction, granting the suppression motion, and dismissing the indictment — is not appropriate ( People v Giles , 73 NY2d 666, 671 [1990]).

2021However, the remedy that defendant requests — reversing the conviction, granting the suppression motion, and dismissing the indictment — is not appropriate ( People v Giles , 73 NY2d 666, 671 [1990]).

2024This evidence established beyond a reasonable doubt that defendant's ability to drive was impaired by the consumption of alcohol ( see People v Cruz , 48 NY2d 419, 426-427 [1979], appeal dismissed 466 US 901 [1980] ; People v Martinez , 186 AD3d 1165 [2020]).

2024This evidence established beyond a reasonable doubt that defendant's ability to drive was impaired by the consumption of alcohol ( see People v Cruz , 48 NY2d 419, 426-427 [1979], appeal dismissed 466 US 901 [1980] ; People v Martinez , 186 AD3d 1165 [2020]).

2022This evidence included video from the officer's body-worn camera showing, inter alia, defendant's vehicle swerving and twice failing to signal, defendant exiting the vehicle from the driver's seat and [*2]interacting with the officer, and the Intoxilyzer test result, showing that defendant's blood alcohol contact was nearly twice the legal limit ( see People v Smith , 27 NY3d 652, 664-665 [2016]; People v Meredith , 203 AD3d 633 [2022], lv denied 38 NY3d 1072 [2022]).

2022This evidence included video from the officer's body-worn camera showing, inter alia, defendant's vehicle swerving and twice failing to signal, defendant exiting the vehicle from the driver's seat and [*2]interacting with the officer, and the Intoxilyzer test result, showing that defendant's blood alcohol contact was nearly twice the legal limit ( see People v Smith , 27 NY3d 652, 664-665 [2016]; People v Meredith , 203 AD3d 633 [2022], lv denied 38 NY3d 1072 [2022]).

2022The court did not abuse its discretion ( see People v Duncan , 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]) when it denied defendant's request to impeach the testifying police officer with extrinsic evidence concerning his failure to recall the details of his interview with the assistant district attorney when the officer said that defendant admitted drinking two beers.

2022The court did not abuse its discretion ( see People v Duncan , 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]) when it denied defendant's request to impeach the testifying police officer with extrinsic evidence concerning his failure to recall the details of his interview with the assistant district attorney when the officer said that defendant admitted drinking two beers.

2021Viewing, as a whole, the Criminal Court's jury charge with respect to the operation of a motor vehicle, we find that it correctly conveyed the proper standard of proof ( see People v [*2]Umali , 10 NY3d 417, 426-427 [2008]).

2021Viewing, as a whole, the Criminal Court's jury charge with respect to the operation of a motor vehicle, we find that it correctly conveyed the proper standard of proof ( see People v [*2]Umali , 10 NY3d 417, 426-427 [2008]).

2019Defendant's argument that the jury, by acquitting him of aggravated driving while intoxicated ( see Vehicle and Traffic Law § 1192[2-a]), necessarily rejected the Intoxilyzer test results "calls for an impermissible invasion of the jury's deliberative processes" ( People v Williams , 239 AD2d 271, 272 [1997], lv denied 90 NY2d 899 [1997], quoting People v Rivera , 201 AD2d 377 [1994], lv denied 83 NY2d 875 [1994]; People v Quirisumbay , 50 Misc 3d 139 [A], 2016 NY Slip Op 50168[U] [App Term, 1st Dept 2016], lv denied 27 NY3d 1074 [2016]).

2019Defendant's argument that the jury, by acquitting him of aggravated driving while intoxicated ( see Vehicle and Traffic Law § 1192[2-a]), necessarily rejected the Intoxilyzer test results "calls for an impermissible invasion of the jury's deliberative processes" ( People v Williams , 239 AD2d 271, 272 [1997], lv denied 90 NY2d 899 [1997], quoting People v Rivera , 201 AD2d 377 [1994], lv denied 83 NY2d 875 [1994]; People v Quirisumbay , 50 Misc 3d 139 [A], 2016 NY Slip Op 50168[U] [App Term, 1st Dept 2016], lv denied 27 NY3d 1074 [2016]).

2014Fire Dept., 4 NY3d 477, 490-491 [2005]).

2014Respondents’ conclusive assertions that such records are often requested in DWI cases involving Intoxilyzer test results, and that thousands of such *501 cases are pending in New York City, do not meet the burden of ‘ ‘identify [ing] . . . the generic risks posed by disclosure of these categories of documents” (Matter of Lesher v Hynes, 19 NY3d 57, 67 [2012]; see also Matter of New York Times Co. v City of N.Y.

2011The defendant failed to preserve for appellate review his contention that the results of the Intoxilyzer test should have been suppressed because Officer Mercado lacked the basic knowledge to explain how the Intoxilyzer functioned when reading an insufficient sample (see GPL 470.05 [2]; People v Velez, 64 AD3d 621, 622 [2009]; People v Sprosta, 49 AD3d 784, 785 [2008]; People v Dardain, 226 AD2d 551 [1996]).

2011The defendant failed to preserve for appellate review his contention that the results of the Intoxilyzer test should have been suppressed because Officer Mercado lacked the basic knowledge to explain how the Intoxilyzer functioned when reading an insufficient sample (see GPL 470.05 [2]; People v Velez, 64 AD3d 621, 622 [2009]; People v Sprosta, 49 AD3d 784, 785 [2008]; People v Dardain, 226 AD2d 551 [1996]).

2008Calibration records are essential to the defense to help it determine whether the machine was operating properly, and failure to provide such records to the defendant has been found to warrant reversal (see People v Corley, 124 AD2d 390, 391 [1986]; People v English, 103 AD2d at 979 ).

2005(See People v Summa, 140 Misc 2d 763, 765 [Suffolk Dist Ct 1988] [approving the Intoxilyzer 5000 and detailing its workings; also noting that subject “must blow for four seconds at a sufficient pressure to insure that there is no ‘mouth alcohol’ that could be detected by the machine”]; see also People v DeMarasse, 85 NY2d 842, 845 [1995] [explaining operation of Intoxilyzer 5000 and importance of obtaining sample of “deep lung air”].) In the present case, the highway officer who attempted to administer the Intoxilyzer test candidly testified (and the videotape showed) that the defendant Mr. Da

2005(See People v Summa, 140 Misc 2d 763, 765 [Suffolk Dist Ct 1988] [approving the Intoxilyzer 5000 and detailing its workings; also noting that subject “must blow for four seconds at a sufficient pressure to insure that there is no ‘mouth alcohol’ that could be detected by the machine”]; see also People v DeMarasse, 85 NY2d 842, 845 [1995] [explaining operation of Intoxilyzer 5000 and importance of obtaining sample of “deep lung air”].) In the present case, the highway officer who attempted to administer the Intoxilyzer test candidly testified (and the videotape showed) that the defendant Mr. Da