Constantine, Application of
| Decision Date | 17 February 1989 |
| Citation | 538 N.Y.S.2d 395,142 Misc.2d 728 |
| Parties | In the Matter of the Application of Thomas A. CONSTANTINE, Superintendent of the Division of State Police, for an Order vacating a prior Order of this Court which granted a Subpoena in the criminal action. The PEOPLE of the State of New York, v. Mark P. LETO, Pending in Schodack Town Justice Court, County of Rensselaer. |
| Court | New York Supreme Court |
Robert T. Dillon, Albany, for New York State Police.
Gerstenzang, Weiner & Gerstenzang, (Peter Gerstenzang, of counsel), Albany, for Mark P. Leto.
James B. Canfield, Rensselaer County Dist. Atty. (Michael L. Desautels, Asst. Dist. Atty., of counsel), Troy, for County of Rensselaer.
This is a motion by the petitioner Thomas A. Constantine, Superintendent of the Division of State Police, for an order vacating a prior order of this Court which granted a subpoena duces tecum directing petitioner to produce the New York State Police Breath Test Operator's Training Course Manual in a criminal action entitled: "In the Matter of People against Mark P. Leto."
On December 7, 1988, this Court issued a subpoena duces tecum directing the New York State Police to produce "a certain New York State Police Breath Test Operator's Training Course Manual" and specifically that edition which was used to train Trooper E.J. Demczar who was first certified as a breathalyzer operator on February 5, 1988 and who was the arresting officer in the criminal case referred to above which was a trial of respondent Leto on Driving While Intoxicated (DWI) charges.
The respondent, Superintendent of the Division of State Police, contends that the subpoena duces tecum may only be used to obtain material which is discoverable under Article 240 Criminal Procedure Law, but not possessed by the prosecutor, or which constitutes evidence, and that the manual in question is not evidence and not discoverable pursuant to Section 240.20 CPL.
This Court cannot agree with the contentions of the petitioner. The manual in question is a specific set of instructions and procedures for the proper performance of chemical and psychophysical tests. It constitutes the most comprehensive evidence in regard to State Police procedure for the arrest and testing of DWI defendants. It is certainly direct evidence of both the procedures that should be followed as well as the consequences of not following those procedures. In the case at hand, the issue is whether the defendant...
To continue reading
Request your trial
-
Constantine v. Leto
... ... Petitioner submitted an application to Supreme Court to quash the subpoena duces tecum. Supreme Court denied the motion, stating that respondent was entitled to access to the manual for the purpose of proving what the proper testing procedures were and, if appropriate, to prove that proper procedures were not followed. 142 Misc.2d ... ...
-
Pre-trial discovery
...of proving what the proper procedures in testing were and that his accusers failed to follow those procedures, if that be the case. 538 N.Y.S.2d 395 at 396. As a result, the Supreme Court held that the training manual was both appropriately discoverable and was necessary evidence to aid the......