People v Kelly (Michael)

[*1] People v Kelly (Michael) 2013 NY Slip Op 50360(U) Decided on March 12, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570916/10.

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

against

Michael J. Kelly, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered February 11, 2010, after a jury trial, convicting him of driving while intoxicated (Vehicle and Traffic Law § 1192[2]), and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J. and jury), rendered February 11, 2010, affirmed.

Defendant's suppression argument relating to the initial stop of his automobile is unpreserved (see e.g. People v Martin, 50 NY2d 1029 [1980]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Defendant's erratic driving as he approached the entrance to the Queens Midtown Tunnel - described by the arresting officer as including "swerving" and nearly striking the traffic "delineators" that separated "approaching" vehicles — provided a proper basis for the initial stop of his vehicle (see Public Authorities Law § 553[5]; 21 NYCRR 1023[1]; see e.g. People v Robinson, 97 NY2d 341, 349 [2001]).

Records relating to the routine inspection, maintenance and calibration of the breathalyzer machine were not testimonial in nature, and their admission did not violate defendant's confrontation rights under Crawford v Washington, 541 US 36 (2004)(see People v Pealer, ___ NY3d ___, 2013 NY Slip Op 01019 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 12, 2013