People v. Colon

• Decision Date: 13 February 1992
• Citation: 180 A.D.2d 876,580 N.Y.S.2d 95
• Parties: The PEOPLE of the State of New York, Respondent, v. Russell A. COLON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 95

580 N.Y.S.2d 95

180 A.D.2d 876

The PEOPLE of the State of New York, Respondent, v. Russell A. COLON, Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 13, 1992.

Carol M. Dillon, Amsterdam, for appellant.

Guy P. Tomlinson, Dist. Atty., (James E. Conboy, of counsel), Fonda, for respondent.

Before WEISS, P.J., and LEVINE, MERCURE and MAHONEY, JJ.

MAHONEY, Justice.

Appeals from two judgments of the County Court of Montgomery County (Aison, J.), rendered January 4, 1991 and February 25, 1991, upon a verdict convicting defendant of the crimes of driving while intoxicated (two counts) and aggravated unlicensed operation of a motor vehicle, and the traffic offense of failure to keep right.

On September 5, 1987 at approximately 3:00 A.M., Deputy Sheriff Gary Johnson observed defendant's vehicle making a wide right-hand turn from State Route 5 onto State Route 30A in the Village of Fonda, Montgomery County. Johnson stopped the vehicle after it crossed over into the oncoming lane and then proceeded to travel in that lane. Based upon Johnson's observations of defendant, defendant's apparent admissions and a field sobriety test, it was Johnson's opinion that defendant was intoxicated. He was arrested and taken to the Sheriff's Department where a breathalyzer test was administered with the usual procedures. The test revealed defendant's blood alcohol content to be .16%. Inasmuch as he had a prior conviction for driving while intoxicated (hereinafter DWI), defendant was subsequently indicted, inter alia, on two felony DWI counts (Vehicle and Traffic Law former § 1192 [2], [3], [5].

Thereafter, having initially denied defendant's request for assigned counsel, County Court conducted several hearings, before and after arraignment, regarding defendant's progress in obtaining an attorney. At the conclusion of each hearing, the court administered Parker warnings (see, People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313) to defendant. At the fifth scheduled hearing, when defendant failed to appear, a bench warrant was issued for his arrest. Desirous of moving the matter to trial, and after learning that previously assigned counsel was not willing to represent defendant and did not know his whereabouts, the court assigned new counsel for defendant, conducted an absentia hearing and, after determining that due diligence had been exercised in attempting to locate defendant, ordered that his trial proceed in absentia. Defendant was ultimately convicted of both DWI charges. This appeal ensued.

Initially, we note that defendant was properly tried and sentenced in absentia. In situations such as the one herein where defendant has previously voluntarily absconded from the jurisdiction, resulting in the issuance of a bench warrant for his arrest, and cannot, by the exercise of reasonable efforts, be located, the failure to actually notify defendant of the date that his trial was to begin does not constitute a deprivation of his right to be present at trial (see, People v. Delvalle, 167 A.D.2d 661, 563 N.Y.S.2d 244, lv. denied 77 N.Y.2d 837, 567 N.Y.S.2d 206, 568 N.E.2d 655). Because the record reveals that diligent efforts were made to locate defendant, but to no avail, we see no error in County Court's ruling in this regard (cf., People v. Edmonds, 151 A.D.2d 829, 542 N.Y.S.2d 804).

We disagree, however, with County Court's resolution of defense counsel's motion to suppress the breathalyzer test results. During jury selection, defense counsel orally moved to suppress the results of the breathalyzer test on the ground that the prosecution's foundational evidence was insufficient to satisfy the standards set forth in People v. Freeland, 68 N.Y.2d 699, 506 N.Y.S.2d 306, 497 N.E.2d 673. This position was based upon the fact that the breath analyzer ampule used in defendant's test (and various other calibration tests) came from lot No. 0916 and was manufactured by Systems Innovation Inc. (hereinafter SII), the same lot number and manufacturer of the ampule used in the breathalyzer test at issue in People v. Serrano, 142 Misc.2d 1087, 539 N.Y.S.2d 845. In Serrano, investigatory reports performed by the Pennsylvania Auditor General and testimony from a former SII employee established that the chemical solution in lot No. 0916 ampules did not come from one homogeneous batch of solution. Rather, the solution came from numerous, individually mixed five-gallon jugs which were never combined at any point during the production or sampling process so as to insure that all lot No. 0916 ampules were of the exact same chemical constitution, thus raising questions concerning whether the subject chemicals were of the "proper kind and mixed in the proper proportions" (People v. Freeland, supra, 68 N.Y.2d at 700, 506 N.Y.S.2d 306, 497 N.E.2d 673) to meet the prerequisite showing for admissibility of the breathalyzer results. County Court denied the motion on the ground of untimeliness and, alternatively, on the merits summarily denied the motion and the alternative request for a hearing, concluding that defendant failed to present sufficient factual allegations to warrant the requested relief. ¹

In view of the unique circumstances involved herein, namely, the confusion surrounding defendant's attainment of counsel, the assignment of counsel less than a week before the commencement of trial, the fact that the problems with SII's preparation and safeguarding of the chemicals did not become widely known until 1989 with the advent of People v. Serrano (supra ) (more than one year after arraignment), and in the interest of justice, we believe that County Court abused its discretion in denying the motion as untimely (see, CPL 255.20[3]; cf., People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269).

Addressing the substance of the motion,...