People v Bridgers (Eric)

[*1] People v Bridgers (Eric) 2010 NY Slip Op 51243(U) [28 Misc 3d 129(A)] Decided on July 16, 2010 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and IANNACCI, JJ
2008-393 N CR.

The People of the State of New York, Respondent,

against

Eric Bridgers, Appellant.

Appeal from judgments of the District Court of Nassau County, First District (Erica L. Prager, J.), rendered January 18, 2008. The judgments convicted defendant, upon jury verdicts, of aggravated driving while intoxicated, driving while intoxicated per se, unlicensed operation of a motor vehicle, and operating an unregistered motor vehicle.

ORDERED that the judgments convicting defendant of aggravated driving while intoxicated and driving while intoxicated per se are affirmed; and it is further,

ORDERED that so much of the appeal as is from the judgments convicting defendant of unlicensed operation of a motor vehicle and operating an unregistered motor vehicle is dismissed as abandoned.

Defendant was convicted of aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a]), driving while intoxicated per se (Vehicle and Traffic Law
§ 1192 [2]) and other Vehicle and Traffic Law offenses following a jury trial at which the People introduced evidence of the results of a test of the alcohol content of defendant's breath, a reading of .20 percent by weight. Over defendant's objection, the District Court admitted certified copies of the calibration and maintenance documents in relation to the breath test instrument as business records.

Defendant's sole claim on appeal is that the documents were testimonial in nature as defined in Crawford v Washington (541 US 36 [2004]) and Melendez-Diaz v Massachusetts ( US , 129 S Ct 2527 [2009]) and their admission, as business records, violated his Confrontation Clause rights and denied him a fair trial. To preserve such a claim, a defendant must explicitly raise in the trial court the constitutional right alleged to have been denied. In his [*2]various objections to the admission of the maintenance and calibration documents as business records, defendant limited his objection to state law evidence grounds and made no reference to the denial of a constitutional right. Therefore, defendant failed to preserve the constitutional claim for appellate review (see CPL 470.05 [2]; People v Angelo, 88 NY2d 217, 222 [1996]; People v Ballard, 51 AD3d 1034, 1035 [2008]; People v Diaz, 50 AD3d 919 [2008]; People v Olibencia, 45 AD3d 607, 608 [2007]; People v Schindler, 27 Misc 3d 127[A], 2010 NY Slip Op 50578[U] [App Term, 9th & 10th Jud Dists 2010]).

Were we to address the merits of the judgments of conviction being reviewed on appeal, we would affirm for the reasons stated in People v Lent ( Misc 3d , 2010 NY Slip Op _____ [Appeal No. 2009-512 N CR], decided herewith).

Accordingly, the judgments convicting defendant of aggravated driving while intoxicated and driving while intoxicated per se are affirmed.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.
Decision Date: July 16, 2010