People v. Morgan

• Decision Date: 20 November 1962
• Citation: 236 N.Y.S.2d 1014
• Parties: PEOPLE of the State of New York, v. Charles MORGAN, Jr., Defendant-Appellant.
• Court: New York County Court

Page 1014

236 N.Y.S.2d 1014

PEOPLE of the State of New York, v. Charles MORGAN, Jr., Defendant-Appellant.

Suffolk County Court.

Nov. 20, 1962.

Bernard C. Smith, Dist. Atty. of Suffolk County, Riverhead, for the people.

Davidow & Davidow, Patchogue, for defendant-appellant.

HENRY TASKER, Judge.

Defendant was convicted of Operating a Motor Vehicle While in an Intoxicated Condition (Vehicle and Traffic Law, § 1192, subd. 2) after trial before a Justice of the Peace, Town of Brookhaven, sitting as a Court of Special Sessions without a jury. He appeals to this Court.

The first four assignments of error relate to the failure of the Court below to advise defendant as required by various sections of the Code of Criminal Procedure, and to afford him a jury trial. The facts set forth in such assignments are belied by the Justice's return and the transcript, which are binding on this Court. (People v. Mason, 307 N.Y. 570, 122 N.E.2d 916).

Assignments of error numbered 7 through 10 relate to the general qualification of the expert witness who testified on behalf of the People; to his specific qualification to transpose the alcohol content of a sample of defendant's urine into a blood alcohol percentage; and to other matters relating to the samples of urine, the condition of the containers, and the chain of possession of the samples. Appropriate objection was taken at the trial with respect to all of the foregoing matters.

Ordinarily, the qualification of an expert witness is to be determined by the trial court, and is not open to review in the absence of a serious mistake, an error of law or an abuse of discretion, (Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 34 N .E.2d 367). However, in this case, the learned Justice of the Peace permitted the People's expert, a police detective whom he held was qualified to perform the quantitive chemical analysis of a sample of defendant's urine, to transpose or interpret the alcohol content of the urine sample, to the blood alcohol percentage required by the statute (Vehicle and Traffic Law, § 1192). Appropriate objection was taken to this testimony. Thereafter, when defendant's attorney on two occasions attempted to inquire into the witness' expert knowledge of body functions and fluids, the Court, upon objection by the prosecutor, limited the cross-examiner to questions relating to the chemical analysis of the sample. The Court stated that the witness was not a pathologist nor a medical doctor, but only qualified as a laboratory analyst.

The witness Dihrberg testified on direct examination that he had been a patrolman and a detective with the Islip Town Police Department for six years, doing routine police work; that he had been working in the Suffolk County Police Laboratory as a technician since October of 1959; that he had studied chemical analysis under Doctor Newman, Director of the Police Laboratory, for two and a half years; that he had studied chemistry at a State Hospital and that he had just completed a chemistry course at Hoffstra College. The nature and extent of these two courses of study were not described. He further testified that he had been trained by Dr. Newman in Chemical analysis of urine for two and one-half yeas, and that he had made over a hundred analyses of urine specimens.

Assuming without deciding that the witness was qualified to perform the chemical test in question and to ascertain the quantity of alcohol therein, this Court is unable to find that he was qualified within the limits of his own purported testimonial competence to make the transposition or interpolation from urine alcohol content to blood alcohol content. He was not a medical doctor, a pathologist, a biologist, a hemotologist, a physiologist, a biochemist, nor a toxicologist, nor had he had any training in any of these fields. The Court, in sustaining the People's objections on cross-examination, twice stated that the witness had been qualified only as a laboratory technician, and not as a pathologist or a 'medical man'.

It was error for the Court to permit the witness to testify with respect to the comparative alcohol content of body fluids, a subject clearly not within the scope of his personal technical competence as revealed by the record. (Meiselman v. Crown Heights Hospital, supra; Tarrock v. Kingston, 279 App.Div. 693, 108 N.Y.S.2d 16; People v. Davidson, 5 Misc.2d 699, 152 N.Y.S.2d 762; Fortune v. State, 197 Tenn. 691, 277 S.W.2d 381; Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93; see People v. Leis, 13 App.Div.2d 22, 213 N.Y.S.2d 138; People v. Offermann, 204 Misc. 769, 125 N.Y.S.2d 179.

Similarly, after having permitted the witness to testify as to matters clearly not within his competence, it was error for the Court below to limit cross-examination with respect to the witness' knowledge on the very matters in issue to which the expert had just testified.

Upon both of the grounds aforesaid, the judgment of conviction must be reversed and a new trial must be had.

The questions of qualification of the People's expert to conduct the chemical analysis to which he testified will arise upon the new trial here ordered and must also be passed upon.

The academic background of the witness Dihrberg, as revealed by this record and by his testimony on other occasions when he has testified as an expert in Courts of Special Sessions in this County, and attempted to testify as an expert in this Court, is somewhat limited. His entire professional education consists of a course of training as a Licensed Practical Nurse, (Education Law, § 6901, subd . 2, par. b; § 6906, subd. 1); (he studied for such license at Central Islip State Hospital for six months, in 1953), and the recently completed chemistry course at Hofstra College, the...