State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 17, 2014 105620 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

THOMAS R. ORMSBY,

Appellant.

________________________________

Calendar Date: June 6, 2014

Before: Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ.

__________

Mark Diamond, Albany, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy

Blatchley of counsel), for respondent.

__________

Stein, J.

Appeal from a judgment of the County Court of Clinton

County (Ryan, J.), rendered August 2, 2012, upon a verdict

convicting defendant of the crime of driving while intoxicated

and the traffic infraction of failing to display lighted head

lamps.

On July 25, 2011 at approximately 10:15 p.m., defendant was

driving without illuminated headlights in the Town of

Plattsburgh, Clinton County. State Trooper Matthew White pulled

him over and observed that defendant had "glossy bloodshot eyes,"

impaired motor function and slurred speech, and that he smelled

of alcohol. White inquired whether defendant had been drinking,

and defendant admitted that he had been. Defendant proceeded to

fail three field sobriety tests administered by White, and he
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submitted to a preliminary breath screening that tested positive

for alcohol. Defendant was then taken into custody and, at 11:01

p.m., a breathalyzer revealed that he had a blood alcohol content

(hereinafter BAC) of .08%. 

Defendant was thereafter charged with driving while

intoxicated per se, common-law driving while intoxicated and

failing to display lighted head lamps. Following a jury trial,

defendant was convicted of driving while intoxicated per se and

the head lamp violation. County Court sentenced defendant to,

among other things, a prison term of 2a to 7 years, with the

imposition of various fines and other surcharges. Defendant now

appeals, and we affirm.

We are unpersuaded by defendant's assertion that his

conviction for driving while intoxicated per se (see Vehicle and

Traffic Law § 1192 [2]) is not supported by legally sufficient

evidence. The breathalyzer result – taken within two hours of

defendant's arrest – coupled with the failed field sobriety tests

and defendant's admission that he had been drinking alcohol,

provide legally sufficient evidence to support the jury's

determination that defendant violated Vehicle and Traffic Law

§ 1192 (2) (see People v Mertz, 68 NY2d 136, 146 [1986]; People v

Menegan, 107 AD3d 1166, 1170 [2013]). 

Defendant also claims that the verdict was against the

weight of the evidence, both because alcohol soaked up by the

denture adhesive that he used would lead to an inaccurately high

BAC test result and because variation in the testing process

could cause a lower BAC being reported as .08%. With regard to

the first contention, the record reflects that the alcohol

absorbed in denture adhesive would only persist for about an hour

after its consumption, and defendant had not consumed alcohol for

at least that long prior to undergoing the breath test. 

Moreover, the breathalyzer device employed a "slope detector"

that even defendant's expert admitted would have discounted the

presence of any mouth alcohol. With regard to the test result

variation, although defendant submitted proof that the device had
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a .01% margin of error,1 the jury was entitled to consider

defendant's admissions, his failure of three field sobriety

tests, slurred speech, blood shot eyes and odor of alcohol,

together with the test result itself, in reaching its

determination that defendant operated a motor vehicle with a BAC

of .08% or greater (see People v Menegan, 107 AD3d at 1170;

People v Arnold, 2 AD3d 975, 976 [2003], lv denied 1 NY3d 594

[2004]; People v Knapp, 272 AD2d 637, 639 [2000]). Thus, while a

different verdict would not have been unreasonable, when "we view

the evidence in a neutral light, accord deference to the jury's

assessment of credibility and weigh the relative probative force

of conflicting testimony and the relative strength of conflicting

inferences that may be drawn from the testimony" (People v

Murphy, 101 AD3d 1177, 1178 [2012] [internal quotation marks and

citations omitted]; see generally People v Danielson, 9 NY3d 342,

348 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find

that the verdict was in accord with the weight of the evidence. 

Defendant also argues that a sufficient foundation was not

laid for the admission of the breathalyzer result. However,

inasmuch as defendant stipulated at trial to the admission into

evidence of various documents regarding the breathalyzer device

and the test itself, his contention is unpreserved for our

review, and we perceive no reason to take corrective action in

the interest of justice (see CPL 470.05 [2]; 470.15 [6] [a];

People v Westcott, 84 AD3d 1510, 1513 [2011]; see also People v

Kenny, 283 AD2d 950, 951 [2001], lv denied 96 NY2d 903 [2001]). 

Contrary to defendant's further argument, his counsel's strategic

decision to forgo a challenge to the admissibility of the test

result and instead attack its reliability did not render

counsel's assistance ineffective (see People v Gross, 21 AD3d

1224, 1225 [2005]; People v Sowizdral, 275 AD2d 473, 476 [2000],

lv denied 95 NY2d 969 [2000]; see also People v McRobbie, 97 AD3d

970, 972 [2012], lv denied 20 NY3d 934 [2012]).

Defendant's remaining argument – that the prosecutor

engaged in misconduct during his summation – is unavailing. 

1 In rebuttal, the People elicited testimony that the

margin of error for an actual sample was only .008%.
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Defendant failed to object to at least one of the challenged

comments, rendering issues with regard thereto unpreserved

(see People v Simmons, 111 AD3d 975, 980 [2013], lv denied 22

NY3d 1203 [2014]; People v Carney, 110 AD3d 1244, 1245 [2013]). 

Moreover, defendant inaccurately characterizes a majority of the

challenged comments, and all but one of those comments

constituted "fair comment on the evidence and [were] not outside

the bounds of fair advocacy" (People v Simmons, 111 AD3d at 980). 

County Court sustained defendant's objection to the sole improper

remark and promptly instructed the jury to disregard it. Under

these circumstances, "defendant's right to a fair trial was not

compromised" (People v Carney, 110 AD3d at 1246; see People v

Mitchell, 112 AD3d 1071, 1074 [2013], lv denied 22 NY3d 1140

[2014]; People v Hughes, 111 AD3d 1170, 1173 [2013]; People v

Bravo, 69 AD3d 870, 871 [2010], lv denied 14 NY3d 798 [2010]).

To the extent not specifically addressed, defendant's remaining

contentions have been considered and are without merit.

Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court