People v. Hathaway , 666 N.Y.S.2d 74 ( 1997 )

—Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contentions that Supreme Court erred in receiving evidence of his refusal to submit to a breathalyzer test (see, People v Peabody, 206 AD2d 754, 755) and that the evidence is insufficient to support the conviction of driving while intoxicated (see, People v Gray, 86 NY2d 10, 19). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We reject the contention that the court erred in admitting the photograph taken of defendant at the time of his arrest (see, People v Logan, 25 NY2d 184, 195, cert denied 396 US 1020; People v Dent, 183 AD2d 723, 723-724, lv denied 80 NY2d 928). Finally, the court properly exercised its discretion in precluding a lay defense witness from offering his opinion with respect to defendant’s intoxication (see, People v Jacobs, 188 AD2d 897, 899, lv denied 81 NY2d 887). (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.—Felony Driving While Intoxicated.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.