| People v Scullion |
| 2016 NY Slip Op 02159 |
| Decided on March 24, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 24, 2016
Mazzarelli, J.P., Manzanet-Daniels, Kapnick, Webber, JJ.
601
v
James Scullion, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Andrew J. Zapata of counsel), for respondent.
Judgment, Supreme Court, New York County (Ann M. Donnelly, J.), rendered November 18, 2011, convicting defendant, after a jury trial, of driving while ability impaired, and sentencing him to a conditional discharge for a period of one year and a $400 fine, unanimously affirmed.
The court properly exercised its discretion in admitting a videotape of defendant performing coordination tests. Although the police officer who administered the tests did not testify, the videotape was authenticated by the arresting officer, who was a witness to the recorded events (see People v Patterson , 93 NY2d 80, 84 [1999]). Since no testimony was elicited regarding the conclusion to be drawn from the tests, or what the person administering the tests looked for in determining whether or not the arrestee was intoxicated, the reliability of the tests and whether the officer utilized the proper protocols in administering the tests were not in issue. Instead, the video was admitted solely to show how defendant appeared on the night of his arrest.
Similarly, the court properly exercised its discretion in denying defendant's request for a missing witness charge as to the officer who administered the coordination tests. Given the testimony of the arresting officer concerning objective indicia of defendant's intoxication, without reference to defendant's test performance, the second officer had no material, noncumulative testimony to offer. Accordingly, a missing witness charge was not warranted (see generally People v Gonzalez , 68 NY2d 424, 427 [1986]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 24, 2016
CLERK