| People v Marino |
| 2012 NY Slip Op 06621 [99 AD3d 726] |
| October 3, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v ErinMarino, Respondent. |
—[*1] Foley Griffin, LLP, Garden City, N.Y. (Brian J. Griffin and Richard J. Barbuto of counsel),for respondent.
Appeal by the People from an order of the Supreme Court, Nassau County (Peck, J.), enteredMarch 8, 2011, which granted that branch of the defendant's motion pursuant to CPL 330.30 (3)which was to set aside the verdict convicting her of aggravated vehicular assault, vehicularassault in the first degree, aggravated driving while intoxicated, reckless driving, operating amotor vehicle while under the influence of alcohol, and speeding, after a nonjury trial, and toorder a new trial as to those counts of the indictment on the ground of newly discoveredevidence.
Ordered that the order is reversed, on the law, the facts, and as a matter of discretion in theinterest of justice, that branch of the defendant's motion pursuant to CPL 330.30 (3) which was toset aside the verdict convicting her of aggravated vehicular assault, vehicular assault in the firstdegree, aggravated driving while intoxicated, reckless driving, operating a motor vehicle whileunder the influence of alcohol, and speeding, and to order a new trial as to those counts of theindictment is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court,Nassau County, for further proceedings consistent herewith.
On June 25, 2009, at 11:30 a.m., the defendant drove her vehicle erratically and at a veryhigh rate of speed northbound on Route 107, in Glen Cove. As she neared the intersection ofRoute 107 and Town Path Road, she lost control of her vehicle and collided with several vehiclesstopped at a traffic light. Occupants of those vehicles suffered injuries of varying severity.Paramedics, police officers, and medical personnel later described the defendant as appearing"very," "high[ly]" or "severe[ly]" intoxicated. Tests on blood samples taken from the defendant ata hospital one hour after the incident revealed a blood alcohol content of approximately .24%.
The defendant was charged by indictment with various crimes, several of which contained asan element that the defendant operated a motor vehicle "while such person has .18 of one percentum or more by weight of alcohol in such person's blood" (Penal Law § 120.04-a [1]).At a nonjury trial conducted in August 2010, the People's evidence as to the defendant's bloodalcohol content was presented by Margaret Fisher, a "Police Forensic Scientist" at the NassauCounty Police Department's Forensic Evidence Bureau (hereinafter the Crime Lab). Fishertestified as to her testing of the defendant's blood, and the computer-generated results wereentered into evidence. At [*2]the conclusion of the trial, the courtconvicted the defendant of aggravated vehicular assault (Penal Law § 120.04-a [1]),vehicular assault in the first degree (Penal Law § 120.04 [1]), aggravated driving whileintoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]), reckless driving (Vehicle andTraffic Law § 1212), operating a motor vehicle while under the influence of alcohol(Vehicle and Traffic Law § 1192 [3]), and speeding (Vehicle and Traffic Law §1180 [a]). The first three charges required proof that the defendant's blood alcohol content was atleast .18%. The court had no doubt that the People proved that the defendant's blood alcoholcontent met this threshold; in rendering its verdict as to one of the charges that required proof ofthe defendant's blood alcohol content, the court told the defendant: "[t]here is no question in mymind that you are guilty of that."
Several months after the defendant was convicted, but before she was sentenced, theAmerican Society of Crime Laboratory Directors (hereinafter the ASCLD), an accreditingagency, placed the Crime Lab on probation. In a report, the ASCLD cited the Crime Lab formany violations of standards applicable to crime laboratories, the vast majority of which relatedto sections other than the blood alcohol section. Only two violations related specifically to bloodalcohol testing. First, the pipette—a measuring device analogous to a medicinedropper—that was used to draw quantities of various liquids had not been calibrated since2007, and the Crime Lab did not have a policy specifying the frequency of calibration of itspipette. Second, no documentation established that the supervisor of toxicology, who performedthe technical reviews of the blood alcohol tests, "has expertise gained through training andexperience in blood alcohol analysis."
The defendant moved pursuant to CPL 330.30 (3), inter alia, to set aside the verdict based onnewly discovered evidence, and the Supreme Court directed a hearing. In February 2011, as thehearing was getting under way, the Crime Lab was closed by the Nassau County Executive at therequest of the Nassau County District Attorney. In a joint press release with the CountyExecutive, the District Attorney stated that she had requested the closure of the entire Crime Labbecause of the flaws identified in the report, and particularly because of possible misconduct inthe drug-testing section of the Crime Lab that was disclosed after the report was issued. TheDistrict Attorney cautioned in the press release that no evidence had been found "of wrong doingor compromised analysis outside of the drug chemistry section of the lab. It is out of anabundance of caution and in light of [the additional information disclosed after the issuance ofthe ASCLD report] that the County Executive and I have made the decision for a full andimmediate lab closure." The press release was admitted into evidence at the hearing on thedefendant's motion. Additionally, the defendant introduced the ASCLD report regarding theCrime Lab's failure since 2007 to check the calibration of the pipette. The People adducedevidence that the pipette was tested by an independent laboratory in 2010 after the ASCLDissued its report and was found to be in proper calibration. The defendant did not presentevidence that the calibrations of the pipette in 2007 and 2010 had been faulty. Moreover,witnesses testified that in the event a pipette was out of calibration, the accuracy of a bloodalcohol test of the kind performed at the Crime Lab would not be compromised; so long as thesame pipette was used for all measurements for a particular sequence, any inaccuracy incalibration would be constant throughout the sequence and would be factored out in thecalculation of the results. Any problems in the testing would be visible in the graphed gaschromatography results. The same pipette had in fact been used in all of the measurements usedto determine the defendant's blood alcohol content, and no problems were revealed in thegraphed results. The defendant presented no evidence to challenge these assertions specifically,or to show generally that the long interval between pipette calibrations cast doubt on the accuracyof the results of the tests of the defendant's blood alcohol content.
Further, we note that the defendant's challenge to calibration was with respect to the pipetteonly. She never challenged the admissibility of the blood alcohol evidence on the ground that thegas chromatograph used to analyze the blood samples themselves, had not been calibrated (cf. People v Baker, 51 AD3d1047, 1048-1049 [2008]). In fact, at trial, Fisher had testified as to the calibration of the gaschromatograph, and those calibration records were introduced into evidence at trial.[*3]
Toward the end of the hearing, the People disclosed that,in October 2010, two months after the defendant's trial and 14 months after Fisher analyzed thedefendant's blood, Fisher had committed an error in recording the results of nine blood alcoholresults in cases unrelated to the defendant's. In reporting the results of the nine tests, Fisher haderred in transcribing them and consequently attributed them to the wrong defendants. During areview of the performance of the Crime Lab, Fisher herself had discovered the error and broughtit to the attention of her supervisor.
Following the hearing, the Supreme Court granted that branch of the defendant's motionwhich was to set aside the verdict as to all counts of which she was convicted, even those that didnot require evidence of a specific blood alcohol content threshold. The court did not mention theCrime Lab's failure to calibrate the pipette and noted, only in passing, the errors Fisher made 14months after she tested the defendant's blood. Instead, it emphasized the press release issued bythe County Executive and the District Attorney and similar statements about the Crime Lab byvarious assistant district attorneys. While acknowledging that the Crime Lab had been closedbecause of deficiencies in the testing of controlled substances, the court stated that "the shutdown collaterally impacted other areas such as ballistics, fingerprints, and blood alcohol," and itheld that the "public position of the District's [sic] Attorney would be a relevant area ofexamination and cross examination" at a new trial. The People appeal.
A defendant seeking a new trial on the ground of newly discovered evidence must establishall of the following six elements with respect to the "new" evidence: " '1. It must be such as willprobably change the result if a new trial is granted; 2. It must have been discovered since thetrial; 3. It must be such as could have not been discovered before the trial by the exercise of duediligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue;and, 6. It must not be merely impeaching or contradicting the former evidence' " (People vSalemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956], quoting Peoplev Priori, 164 NY 459, 472 [1900] [internal quotation marks omitted]; see People v Tankleff, 49 AD3d160, 179 [2007]). Moreover, "the defendant has the burden of proving by a preponderance ofthe evidence every fact essential to support the motion" (CPL 330.40 [2] [g]; see People vTankleff, 49 AD3d at 179-180).
Here, it is not disputed that the new evidence was discovered after the trial, that it could nothave been discovered earlier with the exercise of due diligence, and that it was not cumulative toevidence already presented. Moreover, the content of the District Attorney's and CountyExecutive's press release and the fact of Fisher's transcription errors in unrelated cases is notdisputed. We conclude, however, that the defendant failed to meet her burden of establishing thatthe new evidence would probably change the result if a new trial is granted (see People vSalemi, 309 NY at 216).
First, the press release and statements by other assistant district attorneys regarding the CrimeLab did not relate to blood alcohol testing, but to a different section of the lab entirely. Indeed,the press release itself recited that the District Attorney had found "no evidence of wrong doingor compromised analysis outside of the drug chemistry section of the lab." Consequently, thedefendant has not demonstrated that the press release and other statements are relevant to theblood alcohol section of the Crime Lab generally, or to the testing of the defendant's blood inparticular. Thus, the defendant has failed to demonstrate that those statements are material to theissues at her trial (cf. People vWilliams, 19 AD3d 228, 230 [2005], affd 7 NY3d 15 [2006]).
Second, Fisher's transcription error in recording certain tests in unrelated cases after thedefendant's trial was merely general impeachment evidence. There was no allegation that Fishercommitted this type of error on other occasions or that there were other problems with herperformance in blood alcohol testing. Moreover, even at the hearing, the defendant made noallegation, nor did she seek to prove, that the blood alcohol results were other than hers. [*4]Consequently, the evidence regarding Fisher's errors in other caseswas not material to the issue in the defendant's case (see People v Williams, 19 AD3d at230; People v Reyes, 255 AD2d 261 [1998]).
Finally, the defendant failed to establish that the evidence regarding the Crime Lab's failureto calibrate the pipette since 2007 or to have a policy as to the frequency of calibration wouldprobably change the result at a retrial. The ASCLD considers calibration an "essential"requirement for accreditation of crime labs. However, the ASCLD did not find that the pipette inthe blood alcohol was improperly calibrated in the sense that it was inaccurate or imprecise in itsmeasurements; it found that the pipette simply had not been calibrated. Nonetheless, the evidenceat the hearing was that this failure was not significant with respect to the defendant's conviction.First, the pipette was used only for blood alcohol testing and was not used with substances thatwere likely to bring it out of calibration. Second, the pipette was tested by an independentlaboratory in 2010 after the ASCLD issued its report and was found to be in calibration. Awitness testified at the hearing that an instrument that goes out of calibration does not recalibrateitself. This testimony tended to negate any possible inference that the Crime Lab's failure tocalibrate the pipette between 2007 and 2010, by itself, cast doubt on the accuracy of bloodalcohol analyses during that period. Third, and in any event, unrebutted testimony at the hearingexplained that the accuracy of the blood alcohol results would not have been affected, given themethod used at the Crime Lab for testing blood alcohol content, even if the pipette had been outof calibration. Finally, Elizabeth Spratt, an independent expert, performed a technical review ofthe results of Fisher's testing of the defendant's blood alcohol testing, and found no error.
In sum, on the particular facts of the record of this hearing, the defendant failed to meet herburden of establishing that the new evidence cast doubt on the accuracy of the results of herblood alcohol testing such that the result would probably be different at a retrial (see People vSalemi, 309 NY at 215; People v Tankleff, 49 AD3d at 179). Consequently, thatbranch of the defendant's motion which was to set aside the verdict and for a new trial on theground of newly discovered evidence should have been denied. Dillon, J.P., Balkin, Leventhaland Belen, JJ., concur.