77 A.D.3d 848
N.Y. App. Div.
2010

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v BEN CASCO, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department

909 N.Y.S.2d 146

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered June 16, 2009, convicting him of assault in the second degree (two counts), vehicular assault in the second degree (two counts), operating a motor vehicle while under the influence of alcohol (two counts), and leaving the scene of an incident without reporting (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was convicted, inter alia, of operating a motor vehicle while under the influence of alcohol and assault in the second degree, after he seriously injured two men while driving under the influence of alcohol. He left the scene and was stopped by an eyewitness, who called the police. The defendant was placed under arrest and taken to a police precinct, where testing revealed that his blood alcohol level was .09 of one percent blood alcohol content. At the trial, the People‘s expert testified, based upon “retrograde extrapolation,” that the defendant‘s blood alcohol level at the time of the accident was between .10 and .11 of one percent blood alcohol content.

During cross-examination of the People‘s expert, defense counsel elicited that the expert relied upon only one alcohol test in performing his calculations and in forming his opinion. Defense counsel contended this was insufficient, since the expert could not determine based upon only one test if the defendant‘s blood alcohol level was increasing after the accident as a result of absorption of alcohol the defendant previously consumed. The defendant claims that pursuit of this line of inquiry was erroneously curtailed when the Supreme Court ruled that further