People v. McDonald

112 A.D.2d 722, 492 N.Y.S.2d 211, 1985 N.Y. App. Div. LEXIS 56230

Opinion

Judgment unanimously affirmed. Memorandum: The trial evidence was sufficient to convict defendant of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2). The Smith and Wesson breathalyzer is judicially accepted as a reliable device for measuring blood alcohol content and the test results were properly received in evidence by the trial court (see, People v Farrell, 58 NY2d 637; People v Gower, 42 NY2d 117, 122; People v Donaldson, 36 AD2d 37, 40). Any issue relative to the kind and mixture of the chemicals used in the test has not been preserved for review (CPL 470.05). Further, failure to preserve a breath sample for independent testing, although technically feasible, did not violate plaintiff’s right to due process (see, California v Trombetta, 467 US —, 104 S Ct 2528, 2535; People v Torres, 125 Misc 2d 78). Finally, the sentence was not unduly harsh and excessive, and we can find no abuse of the sentencing court’s discretion in imposing a 60-day term of imprisonment. (Appeal from judgment of Wayne County Court, Stiles, J. — driving while intoxicated.) Present— Dillon, P. J., Callahan, Boomer, Green and Schnepp, JJ.