People v Ivasyuk (Volodymyr)
Annotate this CaseDecided on June 22, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., GARGUILO and CONNOLLY, JJ.
2012-1640 N CR
The People of the State of New York, Respondent,
against
Volodymyr Ivasyuk, Appellant.
Appeal from a judgment of the District Court of Nassau County, First District (Robert Spergel, J.), rendered July 25, 2012. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated (per se).
ORDERED that the judgment of conviction is affirmed.
On April 12, 2008, defendant was charged with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]), speeding (Vehicle and Traffic Law § 1180 [d]), failing to remain in lane (Vehicle and Traffic Law § 1128 [a]), failing to wear a seatbelt (Vehicle and Traffic Law § 1129-c [3]), and failing to signal when changing lanes (Vehicle and Traffic Law § 1163 [d]). After a jury trial, defendant was convicted of driving while intoxicated (per se) and acquitted of the remaining charges.
At the trial, the People offered proof that, after defendant had been arrested and brought to the police station, he failed a series of standardized "field" sobriety tests, and a test of defendant's blood alcohol content by an Intoxilyzer 5000EN breathalyzer device had produced a reading of .11 of one per centum by weight. Defendant testified that, in the course of his employment on the day prior to his arrest, he had been exposed to acetone and toluene. The defense then sought to qualify a defense witness as an expert in standardized field sobriety testing and in the operation of the Intoxilyzer 5000EN, in the latter case, to testify as to the effects of the presence of acetone and toluene in defendant's breath upon a breathalyzer test. The District Court declined to qualify the witness as an expert with respect to the latter, citing, among other matters, that the witness had never been certified to maintain or operate the Intoxilyzer 5000EN. The court also ruled that defendant had failed to lay a foundation for testimony as to the possibility of those contaminants in the breath sample, much less as to whether the machine had functioned properly to detect and eliminate their effects from a test result. The court denied defendant's motion to allow defendant to reopen his testimony to establish the foundation. On appeal, defendant argues that those rulings denied him his right to testify on his own behalf and to present a defense.
A defendant has a fundamental due process right to testify on his own behalf (United States v Dunnigan, 507 US 87, 96 [1993]; People v Harden, 99 AD3d 1031, 1032 [2012]; People v Carpenter, 52 AD3d 729, 729 [2008]; People v Donato, 34 Misc 3d 66, 68 [App Term, 9th & 10th Jud Dists 2012]), and here, defendant exercised that right in the first instance and without [*2]restriction as to subject matter. Further, a trial court possesses a "common-law power" to control the order and content of proof (People v Washington, 71 NY2d 916, 918 [1988], quoting People v Olsen, 34 NY2d 349, 353 [1974]; see CPL 260.30; People v Smith, 118 AD3d 920, 921 [2014]; People v Mason, 263 AD2d 73, 77 [2000] ["In the absence of a compelling reason to do so, the order of trial prescribed by CPL 260.30 should be adhered to"]), a dimension of which is a defendant's general right to present a defense (People v Carroll, 95 NY2d 375, 385 [2000]), and it has been deemed a proper exercise of that discretion to deny a defendant's request to reopen a case, even to testify for the first time (People v Broadhurst, 306 AD2d 15, 15 [2003]; People v Braxton, 254 AD2d 365, 366 [1998]; People v Canonico, 187 AD2d 267, 268 [1992]; see also People v Whipple, 97 NY2d 1, 8 [2001] ["Leave to reopen remains . . . a precarious dispensation . . . (as the c)ourts . . . have abundant discretion to deny such leave even to defendants"]; compare People v Peterson, 6 AD3d 363, 364 [2004] [the trial court properly denied the request of a defendant, who did not testify at the original hearing, to testify at a reopened suppression hearing, in part because the defendant's proposed testimony did not include " any pertinent facts (CPL 710.40 [4])' that defendant could not have presented at the original hearing"], with People v Harden, 99 AD3d at 1033 [it was error to deny the defendant an opportunity to reopen his case to testify for the first time because his prospective testimony "was certainly relevant to key disputed issues at trial"]). It is well settled that "[a] court may, in its discretion, exclude [even] relevant evidence if its probative value is outweighed by the prospect of[, among other things,] confusing the issues or misleading the jury" (People v Primo, 96 NY2d 351, 355 [2001]), and evidence that is of "conjectural significance will ordinarily be insufficiently probative to outweigh the[] countervailing risks" (id. [internal quotation marks and citation omitted]; see e.g. People v Jin Cheng Lin, 105 AD3d 761, 762-763 [2013]).
Neither defendant nor any other witness testified that acetone is an ingredient, or a by-product, of the glue and solvent used at defendant's work on the day prior to his arrest, and, even if it were, defendant did not testify that he had inhaled the vapors of those materials or that they had come into contact with his skin. Neither defendant nor his proposed expert witness was competent to state whether acetone or toluene may be absorbed by the body through the breath or skin and be present in defendant's breath when he took the breath test, 11 hours after he had stopped work, in amounts that could implicate the integrity of a breathalyzer test result. In any event, there was no challenge to the People's proof of a procedure to detect acetone in a breath sample and to eliminate its effects from the blood alcohol reading, and there was no challenge to the sufficiency of the proof that the Intoxilyzer 5000EN device used to measure defendant's blood alcohol content was working properly at the time of the test. Consequently, defendant has not demonstrated prejudice from the denial of his motion to reopen his testimony.
Defendant's argument that the trial court abused its discretion in failing to qualify the defense witness as an expert in the operation and maintenance of the instrument used to analyze his blood alcohol content is also without merit. Defendant does not state what evidence the witness would have offered that was material to the case aside from "factors that may have [affected] the reading." As a general rule, " the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court' " (People v Bedessie, 19 NY3d 147, 156 [2012], quoting People v Lee, 96 NY2d 157, 162 [2001]), and its determination " will not be disturbed in the absence of serious mistake, an error of law or abuse of discretion' " (People v Greene, 153 AD2d 439, 449-450 [1990], quoting Werner v Sun Oil Co., 65 NY2d 839, 840 [1985]). Expert qualifications may be acquired "from actual experience, from observation, or from study" (Prince, Richardson on Evidence § 7-304 [Farrell 11th ed]; see also Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998]; Meiselman v Crown Hgts. Hosp., 285 NY 389, 398 [1941]), and thus, the fact that the witness was certified in the operation of instruments that differ from the Intoxilyzer 5000EN device only in minor aspects, and his experience with the Intoxilyzer 5000EN itself, might have supported a finding that he was qualified to testify as an expert. However, the defense never challenged the scientific reliability of the instrument generally, nor the sufficiency of the proof that the particular instrument used in defendant's test [*3]was operating properly, and the defense did not lay a foundation for expert testimony on any other matter.
Accordingly, the judgment of conviction is affirmed.
Tolbert, J.P., Garguilo and Connolly, JJ., concur.
Decision Date: June 22, 2015
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