PEOPLE v. DARGENTO (2003)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Frank A. DARGENTO, Defendant-Appellant.

Decided: February 07, 2003

PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, SCUDDER, and LAWTON, JJ.

Law Offices of Michael T. Di Prima, Esq., Rochester (Michael T. Di Prima of Counsel), for Defendant-Appellant. Richard M. Healy, District Attorney, Lyons (Mary Anne Kolb of Counsel), for Plaintiff-Respondent.

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 N.Y.2d 481, 486, 541 N.Y.S.2d 756, 539 N.E.2d 584). 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 N.Y.2d 755, 756, 381 N.Y.S.2d 50, 343 N.E.2d 767; see People v. Manino, 147 A.D.2d 926, 537 N.Y.S.2d 720).

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

MEMORANDUM:

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