
    [731 NYS2d 326]
    The People of the State of New York, Respondent, v Michael Gertz, Appellant.
    Supreme Court, Appellate Term, Second Department,
    July 3, 2001
    APPEARANCES OF COUNSEL
    
      Larkin, Axelrod, Trachte & Tetenbaum, L. L. P., Newburgh (John Ingrassia of counsel), for appellant. Francis D. Phillips, II, District Attorney of Orange County, Goshen (David R. Huey and Andrew R. Kass of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment of conviction for driving while intoxicated reversed on the law and facts, and said accusatory instrument dismissed.

Judgment of conviction for driving while ability impaired affirmed.

Contrary to the People’s argument, defendant’s motion to dismiss properly preserved the issue regarding the legal sufficiency of the evidence establishing defendant’s guilt of driving while intoxicated for appellate review. In order to prove a violation of Vehicle and Traffic Law § 1192 (2), the chemical analysis must be accomplished pursuant to section 1194 of the Vehicle and Traffic Law. Vehicle and Traffic Law § 1194 (4) (a) provides that a medical technologist, under the supervision and direction of a physician, is authorized to withdraw blood for testing of its alcoholic content (see, e.g., People v Olmstead, 233 AD2d 837). In the instant case, the People did not establish that a physician directed the medical technologist to draw defendant’s blood in the emergency room. The technologist merely testified that he received a call to draw blood and that a doctor was on duty in the emergency room. Since, the proof failed to show that a physician directed and supervised the taking of the blood sample, the evidence was not legally sufficient to establish defendant’s guilt of violating section 1192 (2) beyond a reasonable doubt (see, People v Moser, 70 NY2d 476; People v Olmstead, supra).

However, the testimony of Police Officer Weeden, that defendant had slurred speech, glassy eyes, his breath smelled of alcohol and the accident involved no other vehicle, was sufficient to establish defendant’s guilt beyond a reasonable doubt of the charge of driving while impaired (Vehicle and Traffic Law § 1192 [1]). Any attempt by defendant to show an innocent explanation for his slurred speech, bloodshot eyes and alcoholic odor would have merely created factual issues which the jury resolved against him (People v Reynolds, 133 AD2d 499).

Colabella, J.,

dissents in part and votes to affirm both judgments in the following memorandum: Defendant’s contention on appeal that the results of the blood sample were improperly admitted into evidence is unpreserved for appellate review (CPL 470.05; People v Feldman, 219 AD2d 665). A timely objection by defendant would have alerted the People to recall the medical technologist in order to establish that a physician directed him to draw blood from the defendant (Vehicle and Traffic Law § 1194 [4] [a]). Moreover, given the nature of the testimony adduced by the People, there is no basis for a reversal in the interest of justice (CPL 470.15 [6]). Therefore, the judgment convicting defendant of driving while intoxicated should be affirmed. I am in agreement with the majority’s affirmance of the judgment convicting defendant of driving while impaired.

Floyd, P. J., and Coppola, J., concur; Colabella, J., dissents in part and concurs in part in a separate memorandum.  