Opinion
December 31, 1997
Present — Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contentions that Supreme Court erred in receiving evidence of his refusal to submit to a breathalyzer test ( see, People v. Peabody, 206 A.D.2d 754, 755) and that the evidence is insufficient to support the conviction of driving while intoxicated ( see, People v. Gray, 86 N.Y.2d 10, 19). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). We reject the contention that the court erred in admitting the photograph taken of defendant at the time of his arrest ( see, People v. Logan, 25 N.Y.2d 184, 195, cert denied 396 U.S. 1020; People v. Dent, 183 A.D.2d 723, 723-724, lv denied 80 N.Y.2d 928). Finally, the court properly exercised its discretion in precluding a lay defense witness from offering his opinion with respect to defendant's intoxication ( see, People v. Jacobs, 188 A.D.2d 897, 899, lv denied 81 N.Y.2d 887). (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Felony Driving While Intoxicated.)