Appeal from judgments of the District Court of Nassau County, First District (David Goodsell, J.), rendered September 30, 2011. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated (per se), driving while intoxicated (common law), and turning without signaling, respectively.

ORDERED that the judgments of conviction are affirmed.

Defendant appeals from judgments convicting him, upon jury verdicts, of driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), and turning without signaling (Vehicle and Traffic Law § 1163 [a]), respectively.

Defendant never moved to dismiss the accusatory instrument charging him with driving while intoxicated (per se) on the ground that it contained hearsay allegations (see CPL 100.40 [1] [c]). Thus, defendant's contention regarding hearsay allegations in that accusatory instrument is unpreserved for appellate review (see People v Keizer, 100 NY2d 114, 121 [2003] People v Casey, 95 NY2d 354, 362-363 [2000]).

Defendant contends that the District Court erred in permitting the People to present evidence of prior bad acts. He asserts that the court should not have admitted evidence that he was 20 years old and had been drinking when he was apprehended; that he had driven in the wrong direction on a one-way street before he stopped the vehicle he was driving at the direction of a police officer; that a passenger in the vehicle, who owned the car, had possessed a large amount of marijuana; and that the other passengers in the vehicle had been extremely drunk. We find these contentions either unpreserved, or without merit. In any event, any error in admitting this evidence was harmless, as the proof of defendant's guilt was overwhelming. Thus, there was no significant probability that the error contributed to his conviction (see People v Arafet, 13 NY3d 460, 468 [2009] People v Chapman, 101 AD3d 406 [2012] People v Walker, 84 AD3d 842, 843 [2011]).

Defendant's claim that the charges should have been dismissed after the suppression hearing due to a lack of probable cause is unpreserved for appellate review, as the specific arguments raised on appeal to support this contention were not presented to the District Court (see People v Vasquez, 66 NY2d 968, 970 [1985] People v Fowler, 101 AD3d 898 [2012]). In addition, defendant's claim is based on trial testimony. It is well settled that a defendant may not rely on trial testimony to challenge a suppression ruling where, as in this case, he failed to move to reopen the suppression hearing (see People v Abrew, 95 NY2d 806, 808 [2000] People v Gonzalez, 55 NY2d 720, 721 [1981] People v Fowler, 101 AD3d at 899). In any event, defendant's arrest was based on probable cause. Under the totality of the circumstances, including the arresting officer's observation of defendant's bloodshot and glassy eyes, defendant's admission that he had consumed alcohol, his inability to correctly perform several standard field sobriety tests, and the result of his breath test, the arresting officer had reasonable grounds to believe that defendant had been driving in violation of Vehicle and Traffic Law § 1192 (see [*2]People v Mojica, 62 AD3d 100, 114 [2009] People v Francis, 44 AD3d 788, 789 [2007] People v Wright, 8 AD3d 304, 306 [2004] People v Kowalski, 291 AD2d 669, 670 [2002]).

Contrary to defendant's contention, calibration and maintenance records for the device used to administer defendant's breath test and measure his blood alcohol content were admitted into evidence without objection. The People laid a proper foundation for the admission of the records (see CPLR 4518 [a]). Moreover, as defendant extensively cross-examined the police officer who had administered the breath test and was responsible for the calibration and maintenance of the breath testing instrument, it is clear that defendant had received the records a sufficient time prior to the cross-examination of the officer to present a competent defense (see People v Heidelmark, 214 AD2d 767, 769 [1995] cf. People v Corley, 124 AD2d 390, 391 [1986] People v English, 103 AD2d 979, 980 [1984]). Defendant's claim that the admission of the maintenance records and records of the simulator used with the device, which included information regarding the simulator solution, violated Crawford v Washington (541 US 36 [2004]) and Melendez-Diaz v Massachusetts (557 US 305 [2009]), is without merit (see People v Pealer, 20 NY3d 447, 451-456 [2013]).

Defendant's claim that reversal is required because the People did not provide him with "the most recent record of inspection, or calibration or repair" of the instrument used to administer his breath test (CPL 240.20 [1] [k]) is based on a claim that he obtained information from Freedom of Information Law requests that the device in question malfunctioned and was overhauled several months after the test. This claim is based on evidence not contained within the record, which cannot be considered on direct appeal.

Defendant's contention that the jury's verdict was inconsistent and/or repugnant is unpreserved for appellate review, as he did not move to vacate the judgment on this ground in the District Court before the jury was discharged (see People v Alfaro, 66 NY2d 985, 987 [1985] People v Satloff, 56 NY2d 745, 746 [1982] People v Osborne, 60 AD3d 1310, 1311 [2009] People v DeRojas, 196 Misc 2d 171, 173 [App Term, 9th & 10th Jud Dists 2003]). In any event, defendant's contention is without merit, as the elements of aggravated driving while intoxicated, driving while intoxicated per se, and common-law driving while intoxicated, as charged by the District Court, were not inconsistent (see People v Muhammad, 17 NY3d 532, 539 [2011]).

The District Court did not improvidently exercise its discretion in limiting the defense's cross-examination of police witnesses, including as to whether they had a financial incentive to testify falsely in order to earn overtime pay (see Delaware v Van Arsdall, 475 US 673, 679 [1986] People v Shields, 100 AD3d 549, 550 [2012] People v Rivera, 98 AD3d 529 [2012]). Nor did the District Court improvidently exercise its discretion in limiting the testimony of defendant's expert (see People v Lee, 96 NY2d 157, 162 [2001] People v Cronin, 60 NY2d 430, 433 [1983]).

Defendant's remaining contentions are similarly without merit.

Accordingly, the judgments of conviction are affirmed.

Marano, J.P., Nicolai and LaSalle, JJ., concur.
Decision Date: January 31, 2014