Opinion
July 10, 1987
Appeal from the Monroe County Court, Marks, J.
Present — Denman, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's claim that the Department of Health lacked the authority to define the method of measuring weight of alcohol in blood pursuant to Vehicle and Traffic Law § 1194 (9). Defendant's construction of that provision would render subdivision (2) of Vehicle and Traffic Law § 1192 of no effect. We cannot conclude that the Legislature intended such result (see, McKinney's Cons Laws of NY, Book 1, Statutes § 144; Sierra Club v. Board of Educ., 127 A.D.2d 1007). We also conclude that the Department of Health's measurement of weight of alcohol per volume of blood (see, 10 NYCRR 59.1 [b]) is consistent with the provisions of subdivision (2) of Vehicle and Traffic Law § 1192 (see, Commonwealth v. Karch, 349 Pa. Super. 227, 502 A.2d 1359; State v Decato, 120 N.H. 358, 415 A.2d 327; City of Monroe v Robinson, 316 So.2d 119 [La]; Commonwealth v. Brooks, 366 Mass. 423, 319 N.E.2d 901).
The breathalyzer test results were properly received in evidence. The certificates of ampoule analysis and simulator solution both state that the original records were made at the time of each test or within a reasonable period of time thereafter and were properly received pursuant to CPLR 4518 (a) and (c) (People v. Mertz, 68 N.Y.2d 136; People v. Garneau, 120 A.D.2d 112, lv denied 69 N.Y.2d 880). The certificates of calibration were also properly admitted (CPLR 4518 [a]; People v Klein, 105 A.D.2d 805, affd 65 N.Y.2d 613). We further conclude that defendant was adequately observed prior to administration of the test pursuant to 10 NYCRR 59.5 (b). Although the arresting officer testified that he was doing some paperwork at the time, he observed defendant for well over 15 minutes and was able to observe whether he did anything with his hands, belched, or regurgitated. A constant vigil is not required (see, People v Williams, 96 A.D.2d 972, revd on other grounds 62 N.Y.2d 765).
The scope and extent of cross-examination are matters within the discretion of the court (People v. Schwartzman, 24 N.Y.2d 241, 244, cert denied 396 U.S. 846; People v. Kennedy, 70 A.D.2d 181, 186). We are not persuaded that the restrictions upon cross-examination of prosecution witnesses amounted to an abuse of that discretion. Also, the trial court did not err by concluding that defense counsel failed to demonstrate that Dr. Colombo was qualified as an expert on the Smith Wesson Breathalyzer Model 900-A.
Defendant voluntarily testified on his own behalf and admitted that he had been speeding on Lake Ontario State Parkway prior to his arrest. The court did not err by instructing the jury that it could consider this admission in connection with the speeding charge in the indictment, even though the bill of particulars alleged that defendant was speeding in the vicinity of Route 390 (see, CPL 200.95; People v. Spann, 56 N.Y.2d 469; People v Muzzy, 104 A.D.2d 708, lv denied 64 N.Y.2d 784).