Cite as: The People v. Jaclyn Conneely, 2011-2361 N CR, NYLJ 1202582974574, at *1 (Sup., App. Tm., Decided December 21, 2012)

Before: Molia, J.P., Nicolai, Iannacci, JJ.

Decided: December 24, 2012

 

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The above named appellant having appealed to this court from an ORDER of the FIRST DISTRICT COURT OF NASSAU COUNTY dated JULY 29, 2011 and the said appeal having been argued by DOUGLAS NOLL, ESQ., counsel for the appellant and no brief having been submitted for the respondent and due deliberation having been had thereon; it is hereby,

ORDERED AND ADJUDGED that the order is reversed, on the facts and law, defendant's motion is denied, and the judgments of conviction are reinstated.

Molia, J.P., Nicolai and lannacci, JJ., concur.

 

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Appeal from an order of the District Court of Nassau County, First District (Sharon M.J. Gianelli, J.), dated July 29, 2011. The order, upon a motion by defendant to vacate a judgment convicting her, after a nonjury trial, of driving while intoxicated per se and to dismiss the accusatory instrument, granted defendant's motion, vacated that judgment of conviction as well as a judgment convicting defendant of failing to maintain a lane, and ordered a new trial as to both charges (see People v. Conneely, 35 Misc 3d 430 [2011]).

ORDERED that the order is reversed, on the facts and law, defendant's motion is denied, and the judgments of conviction are reinstated.

 

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Defendant was charged in separate accusatory instruments with driving while intoxicated per se (Vehicle and Traffic Law §1192 [2]) and failing to maintain a lane (Vehicle and Traffic Law §1128 [a]). Following a nonjury trial, defendant was convicted of both charges. Defendant subsequently moved pursuant to CPL 440.10 (1) (g) to vacate the judgment convicting her of driving while intoxicated per se based upon newly discovered evidence, namely, the "well documented problems with the Nassau County Police Department Laboratory" (Lab) which, according to defendant, constituted unproduced Brady material. Defendant asserted that the People's case relied "in large part" on the results of an Intoxilyzer 5000 breath testing device, which measured defendant's blood alcohol content as. 13 of one per centum by weight. Defendant argued that the probative value of this evidence was seriously undermined by the problems at the Lab and, thus, the People had failed to meet their burden of proof. The District Court agreed with defendant's contentions, vacated the judgment convicting defendant of driving while intoxicated per se as well as the judgment convicting her of failing to maintain a lane, and ordered a new trial with respect to both charges. The People appeal and we reverse.

In People v. Marino (99 AD3d 726 [2012]), the Appellate Division, Second Department reversed an order, upon which the District Court had principally relied, which had vacated the defendant's convictions for, among other charges, aggravated driving while intoxicated (Vehicle and Traffic Law §1192 [2-a] [a]), based on an analysis

 

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of samples of defendant's blood at the Lab. The Supreme Court, Nassau County, had ruled that a report of the American Society of Crime Laboratory Directors documenting improprieties in the use of certain testing instruments, evidence of labeling errors at the Lab, a press release announcing the indefinite closure of the Lab, and statements by the Nassau County District Attorney and certain of her representatives concerning the operation of the Lab, constituted information so favorable to the defense, with respect to the integrity of the blood alcohol analysis, as to satisfy the requirements of newly discovered evidence (see People v. Salemi, 309 NY 208, 216 [1955]). The People had produced a copy of the aforementioned report as a part of their voluntary disclosure package.

In reversing the Supreme Court's order, the Appellate Division concluded that, on the facts, the defendant had failed to meet her burden of established that the evidence would probably change the result if a new trial were to be granted. The court emphasized that the report made no findings that would support an inference that the irregularities identified would have materially implicated the results of blood sample testing in the time period at issue, much less the reliability of the tests of the defendant's blood, and that the press release and other public statements by representatives of the District Attorney addressed matters that were not relevant to the operation of the Lab's blood alcohol section.

 

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In this case, defendant's blood alcohol test occurred at an entirely different facility, the Central Testing Section at the police department headquarters in Mineola, and by means of a breathalyzer machine, the maintenance and calibration of which were not implicated by whatever testing irregularities were identified at the Lab or referenced by statements of public officials in relation to the Lab and its closure. In light of the People's trial proof of defendant's intoxication, principally the breathalyzer test results, defendant failed to establish that, had the information been available at the trial, the result would probably have been different.

Accordingly, the order is reversed, defendant's motion is denied, and the judgments of conviction are reinstated.

Molia, J.P., Nicolai and lannacci, JJ., concur.