Appeal from judgments of the Criminal Court of the City of New York, Queens County (Ira H. Margulis, J.), rendered September 27, 2011. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se, driving while ability impaired, and driving across hazardous roadway markings, respectively. The appeal from the judgments of conviction brings up for review so much of an order of the same court (Stephanie L. Zaro, J.) dated April 10, 2011 as denied the branches of defendant's motion seeking certain discovery and to suppress a statement.

ORDERED that the judgments convicting defendant of driving while intoxicated per se and driving while ability impaired are affirmed; and it is further,

ORDERED that the judgment convicting defendant of driving across hazardous roadway markings is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument charging that offense is dismissed, and the fine, if paid, is remitted.

In June 2010, defendant was charged, in separate accusatory instruments, with, among other things, driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), and driving across hazardous roadway markings (Vehicle and Traffic Law § 1128 [d]). Defendant subsequently moved to, among other things, suppress a statement he had made to the police. In March 2011, a suppression hearing was held, after which defense counsel argued that defendant's statement was the product of a custodial interrogation. The judicial hearing officer, finding that defendant had not been free to leave, because the officer was investigating a traffic infraction, but that he was not under arrest, and that the question, based on defendant's physical indication, was investigatory in nature, recommended that defendant's motion be denied. By order dated April 10, 2011, the Criminal Court (Stephanie L. Zaro, J.) adopted the findings of fact and conclusions of law of the judicial hearing officer and denied the branch of defendant's motion seeking to suppress his statement. The court also denied the branch of defendant's motion, pursuant to CPL 240.20 (1), which sought disclosure of

Following a jury trial, defendant was convicted of driving while intoxicated per se, driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), and driving across [*2]hazardous roadway markings. On his conviction of driving while intoxicated, defendant was sentenced to three years' probation, a drinking driver program, an ignition interlock for three years and a $500 fine. On his conviction of driving while ability impaired, defendant was sentenced to a conditional discharge. On his conviction of driving across hazardous roadway markings, defendant was sentenced to a $100 fine.

On appeal, defendant contends that his statement should have been suppressed; that the evidence was legally insufficient to support his conviction of violating Vehicle and Traffic Law § 1128 (d) and the verdict convicting him of that offense was against the weight of the evidence; that he was denied his due process right to a fair trial because, among other things, the Criminal Court improperly denied the branch of his discovery motion seeking to obtain maintenance and repair reports, and improperly assumed the role of an advocate by assisting the prosecutor to lay foundations for the admission of various of the People's exhibits into evidence; that the verdicts convicting him of driving while intoxicated per se and driving while ability impaired were against the weight of the evidence; and that the sentences were excessive.

A review of the record indicates that, at the suppression hearing, the police officer testified, among other things, that, at about 2:30 a.m., he had observed defendant driving a vehicle which made a right turn at a high rate of speed with the driver's side tires crossing over the double yellow lines on the roadway. After defendant had stopped his car, the officer approached the passenger's side window of defendant's vehicle, which was rolled down, smelled the odor of alcohol emanating from the vehicle, and observed that defendant's eyes were watery and bloodshot. The officer then requested that defendant exit the vehicle, after which the officer observed that defendant was unsteady on his feet. At the scene, at about 2:50 a.m., the officer asked defendant if he had had anything to drink, to which defendant replied that he had drunk one beer. The officer further observed that defendant's speech was slurred. The foregoing testimony supports the Criminal Court's determination that the officer's question regarding whether defendant had had anything to drink was investigatory and not custodial interrogation (see People v Spencer, 289 AD2d 877, 879 [2001]). "Upon smelling the odor of alcohol on defendant's breath, the Trooper could investigate any possible crime related to defendant's intoxication" (People v Shaffer, 95 AD3d 1365, 1366 [2012]). Consequently, defendant's suppression motion was properly denied.

The officer's trial testimony—that he had observed the driver's side tires of defendant's vehicle cross over the double yellow lines on the roadway—however, failed to establish a violation of Vehicle and Traffic Law § 1128 (d) (see People v Hirsch, 29 Misc 3d 144[A], 2010 NY Slip Op 52215[U] [App Term, 9th & 10th Jud Dists 2010]; People v Sykes, 27 Misc 3d 133[A], 2010 NY Slip Op 50703[U] [App Term, 9th & 10th Jud Dists 2010]; cf. Vehicle and Traffic Law § 1126 [a]). "[I]t is not inherently unlawful to cross such lines, and thus, such lines do not represent markings which indicate portions of a roadway where crossing such markings would be especially hazardous' in violation of Vehicle and Traffic Law § 1128 (d)" (People v Sykes, 27 Misc 3d 133[A], 2010 NY Slip Op 50703[U]).

Although defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]), as a matter of discretion in the interest of justice, we reach the issue and find that, in view of the foregoing, the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), was legally insufficient to support a conviction of Vehicle and Traffic Law § 1128 (d). Consequently, the judgment convicting defendant of violating Vehicle and Traffic Law § 1128 (d) is reversed and the accusatory instrument charging that offense is dismissed (see CPL 470.20 [5]).

As the Court of Appeals stated in People v Mertz (68 NY2d 136 [1986]), "[w]hile the scientific reliability of breathalyzers in general is no longer open to question, there must still be either proper foundation testimony . . . or a proper certificate to establish

Defendant's contention regarding the court's questioning of witnesses in order to

With respect to defendant's contentions that the verdicts convicting him of driving while intoxicated per se and driving while ability impaired were against the weight of the evidence, upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we are satisfied that the verdicts were not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

A review of the record indicates that the sentences imposed upon defendant's convictions of driving while intoxicated per se and driving while ability impaired were neither harsh nor excessive (see People v Suitte, 90 AD2d 80 [1982]). A sentence should not be disturbed unless there is a clear showing that the sentencing court abused its discretion or that extraordinary circumstances exist which require a modification of the sentence (see People v Hodges, 13 AD3d 979 [2004]; People v Dolphy, 257 AD2d 681 [1999]). Inasmuch as defendant has not shown that any extraordinary circumstances exist, we find no basis to disturb the sentences imposed upon the two aforementioned convictions.

Defendant's remaining contentions lack merit or are unpreserved for appellate review.

Accordingly, the judgments convicting defendant of driving while intoxicated per se and driving while ability impaired are affirmed. The judgment convicting defendant of violating Vehicle and Traffic Law § 1128 (d) is reversed and the accusatory instrument charging that offense is dismissed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.