People v. Williams ( 1983 )

— Appeal from a judgment of the County Court of Tioga County (Siedlecki, J.), rendered February 24, 1982, upon a verdict convicting defendant of the crime of operating a motor vehicle while under the influence of alcohol, as a felony. After receiving a call from a concerned citizen at about 4:00 on the morning of August 9, 1981, the police found defendant slumped over the wheel of his Chevrolet Blazer vehicle. The lights were on, the engine was running and the vehicle was blocking the entrance of a private driveway. Defendant was aroused, with difficulty, and after doing very poorly in the field sobriety tests he was placed under arrest for driving while intoxicated and taken to the Tioga County Sheriff’s Department office in the Village of Owego. At about 4:30 a.m., a chemical analysis of defendant’s breath was conducted and revealed a blood alcohol concentration of .21%. Ultimately, defendant was indicted on two separate felony counts of operating a motor vehicle with more than .10% blood alcohol concentration and of operating a motor vehicle while in an intoxicated condition. Defendant was convicted after trial of operating a motor vehicle while under the influence of alcohol as a felony in violation of subdivisions 2 and 5 of section 1192 of the Vehicle and Traffic Law. On appeal, defendant contends that the breathalyzer test results should not have been admitted in that defendant was not closely or continually observed during the 10-minute period immediately preceding the giving of the test, that the court’s charge with respect to the missing witness and the Tompkins County Sheriff’s Department’s regulations was erroneous and that the verdict was against the weight of the evidence. Defendant’s initial contention is bottomed on the testimony of his expert witness who testified that the accuracy of any breathalyzer would be dramatically affected if, in the 10-minute period immediately preceding the administration of the test, defendant regurgitated, belched or put a foreign substance in his mouth. While there is no competent evidence that any of these events occurred, defendant nonetheless contends that since he was not under strict and continuous observation during this time interval, the test results are inadmissible. We first note that the People presented uncontroverted evidence as to the accuracy of the instrument used, that it was in good working order, and that the chemicals employed were of the proper type and kind and were used in proper proportion. It was also demonstrated that the test was conducted by a certified breathalyzer operator, thereby creating a rebuttable presumption that the test was properly administered (Vehicle and Traffic Law, § 1194, subd 9). Even if there were some evidence as to the occurrence of one or more of the afore-mentioned conditions affecting the accuracy of the test during the 10-minute period, that evidence would go to the weight of the test result and not to its admissibility (see People v Porter, 46 AD 2d 307). Moreover, the deputy sheriff who conducted the test was with defendant at all times during the 10-minute interval immediately prior to the test and at least one officer was with defendant at all times. Neither the statute, the regulations nor the exercise of reason call for the constant vigil which defendant would impose. Defendant next contends that the People’s failure to call Deputy Shirley as a witness was sufficient to entitle defendant to a charge that an unfavorable inference might be drawn from that failure. We disagree. The testimony of Deputy Shirley, if given, would necessarily have been confined to his observations during the brief time span just prior to the administration of the breathalyzer test. As such, it would have been cumulative to the testimony of witnesses Meade and Eiklor. Moreover, Deputy Shirley was equally available to defendant and could have been subpoenaed by defendant if his testimony was desired (People v Beach, 60 AD2d 957). While defendant relies upon People v Brown (34 NY2d 658) and People v Valerius (31 NY2d 51), such reliance is unwarranted. In Brown (supra), the uncalled witness was an eyewitness to the underlying criminal transaction and was readily available and his testimony was material. In Valerius (supra), the defendant testified that his confession was brought about because he was physically and mentally abused by Officer Cotter. This testimony remained undenied and uncontradicted since Cotter was readily available but was not called. Nor does People v Samuels (59 AD2d 574) provide refuge for this defendant. Samuels (supra) restates what this court said in People v Douglas (54 AD2d 515, 516), wherein we stated that where a potential witness is an informant who was present at the scene, “an unfavorable inference may arise when a party fails to call a witness under his control who is shown to be in a position to give material evidence (People v Valerius, 31 NY2d 51; People v Moore, 17 AD2d 57, cert den 371 US 838)”. As can readily be observed, none of the elements which calls for the unfavorable inference charge is demonstrated here for the testimony was not material, was cumulative and was collateral to the underlying crime, We have examined the other claimed errors and find no reason to disturb the judgment of conviction. Judgment affirmed. Main, J. P., Yesawich, Jr., and Levine, JJ., concur.