PEOPLE v. TETRAULT (2008)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered March 8, 2007, convicting him of driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the first degree, and failing to stay in a designated lane, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court did not err in admitting the horizontal gaze nystagmus (hereinafter HGN) field sobriety test administered by the arresting officer without conducting a Frye hearing (see Frye v. United States, 293 F. 1013).  “Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability” (People v. Hammond, 35 A.D.3d 905, 907, 827 N.Y.S.2d 298;  see People v. Warner, 45 A.D.3d 1182, 846 N.Y.S.2d 705;  People v. Grune, 12 A.D.3d 944, 945, 785 N.Y.S.2d 178;  People v. Prue, 8 A.D.3d 894, 897, 779 N.Y.S.2d 271;  People v. Gallup, 302 A.D.2d 681, 684, 755 N.Y.S.2d 498).   Additionally, the People laid a proper foundation establishing that the “accepted techniques were actually employed in this case and the tester's qualifications” by the testimony of the officer who performed the HGN test, which demonstrated his qualifications to administer the test (see People v. Warner, 45 A.D.3d 1182, 846 N.Y.S.2d 705;  People v. Hammond, 35 A.D.3d at 907, 827 N.Y.S.2d 298).

 Contrary to the defendant's contention, the Supreme Court properly declined to suppress the evidence of his refusal to submit to a blood test, since there was ample evidence before the court to support the conclusion that the defendant was given clear and unequivocal warnings of the effect of his refusal to submit to the blood test, and that he persisted in his refusal to take it (see Vehicle and Traffic Law § 1194[2][b], [f];  People v. Cragg, 71 N.Y.2d 926, 528 N.Y.S.2d 807, 524 N.E.2d 128;  People v. Rodriguez, 1 A.D.3d 386, 387, 766 N.Y.S.2d 863).

 The defendant's argument that the prosecutor improperly impeached his witness during cross-examination regarding a prior arrest is unpreserved for appellate review, as he failed to object during the cross-examination (see CPL 470.05[2];  People v. Solomon, 16 A.D.3d 701, 702, 794 N.Y.S.2d 55).   In any event, the evidence of the defendant's guilt, without reference to the alleged error, was overwhelming, and there is no significant probability that the alleged error might have contributed to the defendant's conviction.   Thus, any error was harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Munquia, 23 A.D.3d 583, 806 N.Y.S.2d 595).   The prosecutor's reference to the witness's arrest during her summation was also harmless error (see People v. Munquia, 23 A.D.3d 583, 806 N.Y.S.2d 595).

 Contrary to the defendant's contention, defense counsel's failure to object to the prosecutor's remarks during summation and during cross-examination of the defendant's witness did not constitute ineffective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Robbins, 48 A.D.3d 711, 850 N.Y.S.2d 912).

 The defendant contends that he was denied his right to be present at an off-the-record sidebar discussion conducted after a pre-trial hearing.   A defendant must provide an adequate record for determining whether he was wrongly excluded from a material stage of the trial (see People v. Ricketts, 47 A.D.3d 954, 849 N.Y.S.2d 443;  People v. Borzouye, 265 A.D.2d 419, 697 N.Y.S.2d 630).   Here, since the record fails to disclose whether or not the defendant was present during the subject sidebar conference and whether the discussion concerned a material stage of the trial, meaningful appellate review of this issue is precluded (see People v. Ricketts, 47 A.D.3d 954, 849 N.Y.S.2d 443;  People v. Rolle, 4 A.D.3d 542, 771 N.Y.S.2d 704).

The defendant's remaining contentions are without merit.