BAC test in New York

2021As 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] ).

2021As 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] ).

2022However, the "two-hour limitation does not apply where the defendant expressly and voluntarily consents to the administration of the breath test" ( People v Marietta , 61 AD3d 997, 998 [2009]), as was the case here.

2022In view of the foregoing, defendant's acceptance of the People's offer to plead guilty to a traffic infraction, which allowed him to avoid the possibility of a criminal record and incarceration, and pay the minimal mandatory fine, was reasonable ( see People v Gale , 130 AD2d 588, 589 [1987]).

2021If the People fail to "elicit testimony from the witness who conducted the test as to whether the testing equipment was properly calibrated and whether the test was properly performed on the particular blood sample taken from defendant . . . , the BAC test results should not [be] admitted" ( People v Grune , 12 AD3d 944, 945 [3d Dept 2004], lv denied 4 NY3d 831 [2005]).

2021If the People fail to "elicit testimony from the witness who conducted the test as to whether the testing equipment was properly calibrated and whether the test was properly performed on the particular blood sample taken from defendant . . . , the BAC test results should not [be] admitted" ( People v Grune , 12 AD3d 944, 945 [3d Dept 2004], lv denied 4 NY3d 831 [2005]).

2021In 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 office

2021In 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 office

2016Moreover, the jury was entitled to consider the BAC test result as "some evidence of intoxication" ( Johnson v Plotkin , 172 AD2d 88, 91 [1991]; People v Grennon , 36 Misc 3d 33 , 36 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; see also Vehicle and Traffic Law § 1195 [1]).

2016Moreover, the jury was entitled to consider the BAC test result as "some evidence of intoxication" ( Johnson v Plotkin , 172 AD2d 88, 91 [1991]; People v Grennon , 36 Misc 3d 33 , 36 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; see also Vehicle and Traffic Law § 1195 [1]).

2016Thus, the jury could properly have concluded that defendant was "incapable of employing the physical and mental abilities which he [was] expected to possess in order to operate [his] vehicle as a reasonable and prudent driver" ( People v Cruz , 48 NY2d 419, 428 [1979]; see e.g.

2016Thus, the jury could properly have concluded that defendant was "incapable of employing the physical and mental abilities which he [was] expected to possess in order to operate [his] vehicle as a reasonable and prudent driver" ( People v Cruz , 48 NY2d 419, 428 [1979]; see e.g.

2013(See Elson, 283 AD2d at 116 [finding defendant to be a New York domiciliary despite its incorporation in Delaware since “it maintains its principal place of business in New York and is therefore considered a New York domiciliary for choice of law purposes”]; Weisberg v Layne-New York Co., 132 AD2d 550, 551-552 [2d Dept 1987] [“While the defendant is a New York domiciliary by virtue of its having incorporated in New York, for choice-of-law purposes, it must be treated as a New Jersey entity inasmuch as it maintains its principal place of business in that State and thus, it may be said that its

2013(See Elson, 283 AD2d at 116 [finding defendant to be a New York domiciliary despite its incorporation in Delaware since “it maintains its principal place of business in New York and is therefore considered a New York domiciliary for choice of law purposes”]; Weisberg v Layne-New York Co., 132 AD2d 550, 551-552 [2d Dept 1987] [“While the defendant is a New York domiciliary by virtue of its having incorporated in New York, for choice-of-law purposes, it must be treated as a New Jersey entity inasmuch as it maintains its principal place of business in that State and thus, it may be said that its