Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Melissa C. Jackson, J., at suppression hearing; Robert M. Mandelbaum, J., at trial and sentencing), rendered April 21, 2009, after a nonjury trial, convicting him of driving while impaired, and imposing sentence.

Per Curiam.

Judgment of conviction (Melissa C. Jackson, J., at suppression hearing; Robert M. Mandelbaum, J., at trial and sentencing), rendered April 21, 2009, affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no reason to disturb the trial court'sdetermination that defendant's ability to operate the motor vehicle was impaired by the consumption of alcohol (see VTL § 1192[1]; People v Cruz, 48 NY2d 419 [1979]). The credited police testimony established that, following the accident, in which the motor vehicle defendant was driving struck a pedestrian, defendant exhibited the "classic signs of intoxication" (People v Curkendall, 12 AD3d 710, 713 [2004], lv denied 4 NY3d 743 [2004]) — defendant's face was flushed, he had watery eyes and he smelled of alcohol. Furthermore, the intoxilyzer test revealed that defendant's blood alcohol level was .078% (see VTL § 1195[2][c]).

Defendant's motion to suppress the results of the sobriety tests was properly denied. There is no basis for disturbing the hearing court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). The credited police testimony established that, prior to administering the sobriety tests, the police informed defendant that an attorney had called the police and stated, in effect, that he was defendant's lawyer. The attorney, who was retained by defendant's family on defendant's behalf, told the officers that defendant should not be "dealt with or questioned." Defendant, however, did not ask to speak with the attorney about whether he should consent to the sobriety tests and, thus, defendant waived any qualified right to counsel (see People v Shaw, 72 NY2d 1032 [1988]; People v Curkendall, supra; People v Vinogradov, 294 AD2d 708 [2002]; People v Hart, 191 AD2d 991 [1993], lv denied 81 NY2d 1014 [1993]; People v Pfahler, 179 AD2d 1062 [1992]; see also People v Gursey, 22 NY2d 224 [1968]; cf. People v Mora-Hernandez, 77 AD3d 531 [*2][2010]). In any event, we note that any error with respect to the court's denial of suppression of the results of the sobriety tests was, on this record, harmless in light of the credited testimonial evidence establishing that defendant's ability to operate his vehicle was impaired (see People v Crimmins, 36 NY2d 230 [1975]).

Since defendant voluntarily consented to take the blood test after the "deemed consent" period expired (see VTL § 1194[2][a][1]), the "deemed consent" requisites with regard to persons "authorized to withdraw blood" (see VTL § 1194[4][a][1]) are inapplicable to this VTL § 1192(1) driving while impaired prosecution (see People v Atkins, 85 NY2d 1007 [1995]; cf. People v Gertz, 189 Misc 2d 315 [2001], lv denied 97 NY2d 704 [2002]). In any event, in view of the overwhelming evidence of guilt independent of the blood test evidence, any deficiency in the People's proof with regard to the qualifications of the individual who drew blood from defendant is inconsequential (see People v Crimmins, supra).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2010