People v. Dargento

Appellate Division of the Supreme Court of New York

People v. Dargento

302 A.D.2d 924, 755 N.Y.S.2d 535, 2003 N.Y. App. Div. LEXIS 1035

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 2003

StatusPublished

Cited by1 cases

This text of 302 A.D.2d 924 (People v. Dargento) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Dargento, 302 A.D.2d 924, 755 N.Y.S.2d 535, 2003 N.Y. App. Div. LEXIS 1035 (N.Y. Ct. App. 2003).

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Opinion

Appeal from a judgment of Wayne County Court (Sirkin, J.), entered December 11, 2001, convicting defendant upon his plea of guilty of felony driving while intoxicated.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [i]), defendant contends that the results of his breathalyzer test should have been suppressed because the breathalyzer instrument had not been calibrated within six months of that test. Defendant is foreclosed by his plea from raising this evidentiary issue (see People v McDonald, 73 NY2d 481, 486). In any event, contrary to defendant’s contention there is no such “six-month rule”; rather, the People must establish only that the breathalyzer instrument “was in proper working order” (People v Todd, 38 NY2d 755, 756; see People v Manino, 147 AD2d 926). Present— Pigott, Jr., P.J., Wisner, Hurlbutt, Scudder and Lawton, JJ.

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Appeal from a judgment of Wayne County Court (Sirkin, J.), entered December 11, 2001, convicting defendant upon his plea of guilty of felony driving while intoxicated.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [i]), defendant contends that the results of his breathalyzer test should have been suppressed because the breathalyzer instrument had not been calibrated within six months of that test. Defendant is foreclosed by his plea from raising this evidentiary issue (see People v McDonald, 73 NY2d 481, 486). In any event, contrary to defendant’s contention there is no such “six-month rule”; rather, the People must establish only that the breathalyzer instrument “was in proper working order” (People v Todd, 38 NY2d 755, 756; see People v Manino, 147 AD2d 926). Present— Pigott, Jr., P.J., Wisner, Hurlbutt, Scudder and Lawton, JJ.

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Bluebook (online)

302 A.D.2d 924, 755 N.Y.S.2d 535, 2003 N.Y. App. Div. LEXIS 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dargento-nyappdiv-2003.

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