PEOPLE v. OWENS (2008)

 Defendant appeals from a judgment convicting him, following a jury trial, of rape in the first degree (Penal Law § 130.35 [1] ).   Defendant contends that County Court erred in granting the People's motion to preclude evidence concerning the results of the Alco-Sensor tests used to determine the blood alcohol level of the victim.   According to defendant, the motion should not have been granted in the absence of a determination of the particular model of the Alco-Sensor device used and a further determination whether that model has been approved by the United States Department of Transportation and the New York State Department of Health and is therefore scientifically reliable (see generally People v. Hampe, 181 A.D.2d 238, 240, 585 N.Y.S.2d 861, lv. denied 80 N.Y.2d 930, 589 N.Y.S.2d 857, 603 N.E.2d 962).   Defendant failed to preserve his contention for our review (see CPL 470.05[2] ), and 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] ).   Defendant also failed to preserve for our review his contention that the court erred in permitting a police witness to testify that, when defendant was questioned with respect to the instant offense, defendant stated that “he had a problem with women when he drank and that he did become physical” (see CPL 470.05[2] ).   In any event, that contention is without merit.   The statement does not constitute improper character evidence, as contended by defendant (see generally People v. Kuss, 32 N.Y.2d 436, 443, 345 N.Y.S.2d 1002, 299 N.E.2d 249, rearg. denied 33 N.Y.2d 644, 347 N.Y.S.2d 1028, 301 N.E.2d 558, cert. denied 415 U.S. 913, 94 S.Ct. 1408, 39 L.Ed.2d 467;  Prince, Richardson on Evidence §§ 4-401, 4-402 [Farrell 11th ed.] ).   Rather, it constitutes an admission with respect to forcible compulsion, an element of the crime of rape in the first degree with which defendant was charged (see People v. Collins, 301 A.D.2d 452, 755 N.Y.S.2d 365, lv. denied 1 N.Y.3d 570, 775 N.Y.S.2d 787, 807 N.E.2d 900).   To the extent that the statement also constitutes an admission of uncharged conduct, we conclude that the prejudicial effect of the evidence is outweighed by its probative value (see People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59).

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

MEMORANDUM: