People v. Arthur

• Decision Date: 19 January 1984
• Citation: 471 N.Y.S.2d 412,99 A.D.2d 595
• Parties: The PEOPLE of the State of New York, Respondent, v. Wayne D. ARTHUR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 412

471 N.Y.S.2d 412

99 A.D.2d 595

The PEOPLE of the State of New York, Respondent, v. Wayne D. ARTHUR, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 19, 1984.

James R. Hickey, Jr., Ithaca, for appellant.

Benjamin J. Bucko, Dist. Atty., Ithaca (Robert C. Mulvey, Ithaca, of counsel), for respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Tompkins County, rendered July 15, 1982, upon a verdict convicting defendant of the crimes of driving while intoxicated, as a felony, and operating a motor vehicle while under the influence of alcohol, as a felony.

As a result of an automobile accident on August 19, 1981 in the Town of Newfield, Tompkins County, defendant was indicted for driving while intoxicated and operating a motor vehicle under the influence of alcohol pursuant to subdivisions 3 and 2 of section 1192 of the Vehicle and Traffic Law. After the accident, defendant was taken to the emergency room of a local hospital. During the course of the trial, the People introduced the results of a blood test performed by hospital personnel at the direction of an attending physician solely for diagnostic purposes. The test showed a blood alcohol level of .34 of 1%. After this evidence was received, it became apparent that this test result was not disclosed to defendant pursuant to his pretrial disclosure demand. County Court thereupon denied defendant's motion for a mistrial but granted his motion to exclude the evidence and cautioned the jury to disregard such evidence. Later in the course of the trial, the People introduced the result of a blood test performed at the request of the Sheriff's Department for the purpose of determining defendant's blood alcohol content. This test showed a blood level of .28 of 1%. The jury returned a verdict of guilty on both counts of the indictment. Defendant was given a sentence of one year of incarceration ^* and a $500 fine. This appeal by defendant ensued.

Initially, defendant argues that the People failed to establish a chain of custody of the blood sample for the blood test performed at the request of the police. The admission of fungible evidence such as a blood sample requires that the offering party establish "that it is the identical evidence and has not been tampered with" (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310). The fact that the evidence was or might have been accessible to others not called as witnesses casts suspicion on the integrity of the evidence (People v. Connelly, 35 N.Y.2d 171, 175), 359 N.Y.S.2d 266, 316 N.E.2d 706.

Here, the testimony indicates that a nurse took the blood sample in a self-sealing vial while in the presence of a deputy sheriff and handed it to the deputy who labelled it with defendant's name. The deputy took the vial back to his office and sealed it in a container. He then gave it to another officer for the purpose of mailing it to a State Police laboratory for analysis. Another officer testified that he completed the paperwork for mailing...