Appeal from an order of the District Court of Nassau County, First District (Martin J. Massell, J.), dated December 5, 2013. The order granted defendant's motion, pursuant to CPL 440.10, to vacate judgments rendered May 9, 2008 (Norman St. George, J.) convicting defendant, upon his plea of guilty, of driving while intoxicated per se and failing to obey a traffic control device, and restored the matter to the trial calendar.

ORDERED that the order is reversed, on the law and the facts, defendant's motion to vacate the judgments of conviction is denied, and the judgments of conviction are reinstated.

At approximately 4:20 a.m. on May 12, 2007, defendant, who was driving northbound on Merrick Avenue in Westbury, Nassau County, was arrested and charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]). A breath test indicated that his blood alcohol content was .15 of one per centum by weight. It is undisputed that the breath test was administered using an Intoxilyzer 5000 instrument at the Nassau County Police Department Central Testing Section. Defendant was also charged, in separate simplified traffic informations, with, among other things, disobeying a traffic control device (Vehicle and Traffic Law § 1110 [a]).

On January 11, 2008, defendant pleaded guilty in the District Court, Nassau County (Norman St. George, J.), to driving while intoxicated per se and failing to obey a traffic control device. Defendant admitted that he had consumed four or five cups of champagne before he had driven. Defendant answered "[n]o" when the District Court asked whether he had "any reason to contest [the] reading" of the Intoxilyzer instrument.

In November 2010, the American Society of Crime Laboratory Directors (hereinafter the ASCLD), an accrediting agency, inspected the Nassau County Police Department Forensic Evidence Bureau Laboratory (hereinafter the Crime Lab). The ASCLD issued a report on November 24, 2010, indicating numerous deficiencies with respect to the Crime Lab. As a result, in February 2011, the Crime Lab was closed.

On April 19, 2013, defendant moved, pursuant to CPL 440.10, to vacate his judgments of conviction, alleging that, after he had pleaded guilty and had been sentenced, he "discovered that the Intoxilyzer 5000, utilized in his case, was found to be incorrectly used and maintained, based on" the ASCLD report regarding the Crime Lab, which showed that the facility "had failed to take proper steps to provide for a correct and accurate breath-alcohol reading, causing [defendant] to plead guilty to the charge." In opposition, the People asserted, among other [*2]things, that defendant's claims were unsubstantiated and unsupported, and that he was barred from raising a newly discovered evidence claim because he pleaded guilty pursuant to CPL 440.10 (1) (g). Moreover, there was nothing in the ASCLD report "that references Intoxilyzers, much less indicates that they were improperly used or maintained."

In a decision and order dated December 5, 2013, the District Court acknowledged that defendant was not entitled to relief pursuant to CPL 440.10 (1) (g) because he had pleaded guilty. However, even though defendant did not contend that he was denied the effective assistance of counsel at the plea, the District Court determined that defendant was entitled to relief under CPL 440.10 (1) (h), on the ground that the judgments were "obtained in violation of a right of the defendant under the constitution of this state or the United States." The court granted the motion, stating that, "[i]n the particular circumstances presented here . . . the subject judgment[s] resulted from a violation of the defendant's constitutional right to the effective assistance of counsel. Simply stated, absent knowledge of the subject evidence, defendant was denied the informed advice of his attorney, to which he was entitled."

We find that the District Court erred in granting the motion. Defendant could not prevail on a newly discovered evidence claim pursuant to CPL 440.10 (1) (g) because he had pleaded guilty (see People v Philips, 30 AD3d 621, 622 [2006]). In any event, counsel could not be deemed ineffective, as found by the District Court, as defendant's breath test was not administered at the Crime Lab and the ASCLD report made no mention of any Intoxilyzer 5000 instruments (see People v Conneely, 39 Misc 3d 138[A], 2012 NY Slip Op 52473[U] [App Term, 9th & 10th Jud Dists 2012]; see also People v Marino, 99 AD3d 726 [2012]).

Accordingly, the order is reversed, defendant's motion is denied, and the judgments of conviction are reinstated.

Marano, P.J., Garguilo and Connolly, JJ., concur.