People v. Garcia-Santiago

60 A.D.3d 1383, 876 N.Y.S.2d 263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2009
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered September 30, 2005. The judgment convicted defendant, upon a nonjury verdict, of manslaughter in the first degree.

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

Memorandum: On appeal from a judgment convicting him following a nonjury trial of manslaughter in the first degree (Penal Law § 125.20), defendant contends that Supreme Court erred in determining that a police officer was qualified to testify as an expert witness concerning the behavior of an individual with a blood alcohol content of .03%. Defendant failed to object to the testimony of the officer on that ground and thus failed to preserve that contention for our review (see CPL 470.05 [2]; see generally People v Delatorres, 34 AD3d 1343, 1344 [2006], lv denied 8 NY3d 921 [2007]; People v Smith, 24 AD3d 1253 [2005], lv denied 6 NY3d 818 [2006]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject defendant’s further contention that the court erred in admitting the officer’s testimony in evidence because it lacked a proper foundation (see generally People v Jones, 73 NY2d 427, 430 [1989]), and was irrelevant (see generally People v Scarola, 71 NY2d 769, 777 [1988]). The sentence is not unduly harsh or severe. Present— Scudder, P.J., Smith, Peradotto, Garni and Green, JJ.