PEOPLE v. GARCIA SANTIAGO (2009)

 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 A.D.3d 1343, 1344, 825 N.Y.S.2d 614, lv. denied 8 N.Y.3d 921, 834 N.Y.S.2d 511, 866 N.E.2d 457;  People v. Smith, 24 A.D.3d 1253, 806 N.Y.S.2d 825, lv. denied 6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289).   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 N.Y.2d 427, 430, 541 N.Y.S.2d 340, 539 N.E.2d 96), and was irrelevant (see generally People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728).   The sentence is not unduly harsh or severe.

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

MEMORANDUM: