People v Aviles (Jose)

[*1] People v Aviles (Jose) 2015 NY Slip Op 50347(U) Decided on March 23, 2015 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570370/14

The People of the State of New York, Respondent-Appellant, -

against

Jose Aviles, Defendant-Respondent.

The People appeal from a judgment of the Criminal Court of the City of New York, Bronx County (Harold Adler, J.), dated April 9, 2013, which granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 170.30(1)(f).

Per Curiam.

Order (Harold Adler, J.), dated April 9, 2013, reversed, on the law, defendant's motion denied, accusatory instrument reinstated and matter remanded for further proceedings.

We find unavailing defendant's due process and equal protection challenges to the Police Department's policy of administering both breathalyzer and physical coordination tests to English-speaking DWI suspects, while offering only the breathalyzer test to non-English speakers such as defendant. A similar constitutional challenge was rejected by the Appellate Division, First Department, after issuance of the order here under review (see People v Salazar, 112 AD3d 5 [2013], lv denied 22 NY3d 1090 [2014] [policy determination as to whether or not to perform physical coordination tests was not based upon race, religion or national origin, but on a suspect's ability to speak and understand English, and was rationally related to ensuring the reliability of physical coordination tests for suspected DWI offenders]).

Defendant's alternative arguments for affirmance are not reviewable on the People's appeal (see CPL 470.15[1]; People v Goodfriend, 64 NY2d 695, 697 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 23, 2015