People v. Crandall

• Decision Date: 13 June 1996
• Citation: 644 N.Y.S.2d 817,228 A.D.2d 794
• Parties: The PEOPLE of the State of New York, Respondent, v. George S. CRANDALL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 817

644 N.Y.S.2d 817

228 A.D.2d 794

The PEOPLE of the State of New York, Respondent, v. George S. CRANDALL, Appellant.

Supreme Court, Appellate Division Third Department.

June 13, 1996.

Dennis M. Englert, Schenectady, for appellant.

James E. Conboy, District Attorney, Fonda, for respondent.

Before CREW, J.P., and WHITE, YESAWICH, PETERS and SPAIN, JJ.

CREW, Justice Presiding.

Appeals (1) from a judgment of the County Court of Montgomery County (Aison, J.), rendered September 7, 1993, upon a verdict convicting defendant of the crime of driving while intoxicated (two counts) and the violation of driving to the left of pavement markings, and (2) by permission, from an order of said court, entered April 11, 1994, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In the early morning hours of June 13, 1992, defendant was arrested in the Town of Glen, Montgomery County, for driving while intoxicated. Defendant was taken into custody, given a breathalyzer test and issued a uniform traffic ticket. Thereafter, he was indicted and charged with two counts of driving while intoxicated as a felony and one count of failure to keep right. Defendant was convicted of all three counts of the indictment following a jury trial and was sentenced accordingly. Defendant appeals from both the judgment of conviction and, by permission, from County Court's denial, without a hearing, of his motion to vacate the judgment of conviction.

Initially, defendant argues that County Court erred in admitting into evidence documents relating to ampoule analysis and simulator solution analysis because they were not furnished to him until the day of trial despite his CPL 240.20(1)(c) demand. We disagree. It is abundantly clear that where materials of the type we are dealing with here are not produced until the day of trial, it is reversible error for the trial court to admit such into evidence without granting a continuance in order to permit defendant's examination thereof (see, People v. Corley, 124 A.D.2d 390, 391, 507 N.Y.S.2d 491). Here, County Court offered to grant defendant an immediate continuance of unspecified length for that purpose and to consult with an expert if he were so inclined. County Court also offered defendant the opportunity of a hearing to contest the admissibility of the documents or, if none of those options were acceptable, the option of moving for a mistrial. The record reveals that, after reviewing the documents in question, defendant elected to proceed with the trial instead of invoking any of the options proffered by County Court and, having elected to do so, defendant cannot now be heard to complain.

Next, defendant argues that the police failed to assist him with advice or communication means with which he could arrange for an independent chemical test, which failure constitutes reversible error. Again, we disagree. While it is clear that a defendant is entitled to his or her own additional chemical test (see, Vehicle and Traffic Law § 1194[4][b] ), it is equally clear that the police are not required to arrange...