People v. Calderella

OPINION OF THE COURT

Memorandum.

Judgment of conviction unanimously affirmed.

*1045The People offered the usual evidence of intoxication, including a strong odor of alcoholic beverages on defendant’s breath. Evidence was also offered of defendant’s refusal to blow into the breathalyzer machine, which, according to the People’s expert, accounted for the .00 reading. Defendant, on the other hand, denied taking any intoxicant and ascribed his obvious state to an unsound combination of medication prescribed by different physicians. A medical expert testified on his behalf that the medications taken would bring about the symptoms of intoxication observed by the People’s witness. However, the witness admitted that the medication would not produce an odor of alcohol and he further stated that defendant never complained to him of the incident in question. Moreover, defendant admitted he had previously taken the same medications (although prior to retiring to bed) without similar complications.

In People v Van Tuyl (79 Misc 2d 262), this court held that a conviction would lie if the proof established that intoxication was caused by drugs and alcohol. However, we held, under the facts of that case, intoxication was caused by the drugs taken rather than by the two drinks defendant admitted consuming. Hence, in view of the evidence, especially the "strong” odor of alcohol, defendant’s denial of having had any drinks, and his refusal to take the breathalyzer test, a question of fact was presented as to whether defendant’s intoxication was caused by alcohol as well as prescriptive drugs and we see no reason to disturb the jury’s finding in this regard.

Defendant’s remaining contentions are either without merit or not preserved for appellate review.

DiPaola, P. J., Stark and Ingrassia, JJ., concur.