People v. North

CourtNew York Town Court
Writing for the CourtSHERWOOD L. BESTRY
Citation96 Misc.2d 637,409 N.Y.S.2d 482
Decision Date28 August 1978
PartiesPEOPLE of the State of New York, Plaintiff, v. Robert W. NORTH, Defendant.

Page 482

409 N.Y.S.2d 482
96 Misc.2d 637
PEOPLE of the State of New York, Plaintiff,
v.
Robert W. NORTH, Defendant.
Amherst Town Court, Erie County.
Aug. 28, 1978.

Page 483

Edward C. Cosgrove, Dist. Atty. by Manuel S. Wortzman, Asst. Dist. Atty. of Erie County, for the People.

John E. Nicholas, Jr., Clarence, for defendant.

DECISION AND ORDER

SHERWOOD L. BESTRY, Justice.

Defendant, charged with a violation of section 1192, subd. 3, of the Vehicle and Traffic Law (Driving While Intoxicated), moves pursuant to section 240.20, subd. 3, of the Criminal Procedure Law for a "discovery" of the blood sample taken from the defendant, after his arrest, pursuant to section 1194 of the Vehicle and Traffic Law.

The blood sample was defendant's property prior to being extracted. We rule that the blood sample is not exempt property as that term is defined in subd. 3, section 240.10 of the Criminal Procedure Law.

The People's witness, a chemist, on trial, will testify as to the alcoholic content of said sample, and will be offered as an expert witness.

The defendant should have the right to call his own expert witness to testify as to the result of any scientific tests he has made with reference to alcoholic content of the blood sample.

There is no difference between the right to challenge the reliability of the People's chemical test here, than was present with respect to drugs in People v. White, 40 N.Y.2d 797, 390 N.Y.S.2d 405, 358 N.E.2d 1031.

This Court does not know whether the mere passage of time will cause a change in the alcohol content of the blood, but that is a scientific matter, proof of which can be offered at the trial.

However, the physical evidence (the blood sample) is subject to damage or alteration. (See People v. Innes, 69 Misc.2d 429, p. 431, 326 N.Y.S.2d 669, p. 671.)

Therefore, the motion of the defendant is granted upon certain conditions. The People shall furnish to the defendant's attorney, a portion of the blood sample, of sufficient quantity to enable defendant's expert to perform independent testing, but that portion of the entire sample shall not be so large as to, in any way, chemically alter or modify the remainder to be retained by the People.

In the event that furnishing a portion of said sample will alter or modify the remaining portion, chemically, then the People shall furnish the defendant an opportunity to have his expert travel to the laboratory where said blood is situated, and make his independent test...

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2 practice notes
  • Quinn v. Aetna Life & Cas. Co., No. 78 C 1628.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 28, 1979
    ...of action for injunction as a result of the fact that they may be injured by defendant's actions and have no adequate remedy at law. 409 N.Y.S.2d at 482. Following the state court decision plaintiffs consented to an order severing their claims against Aetna from their claims against the mag......
  • People v. Karpeles
    • United States
    • New York City Court
    • December 21, 1989
    ...authority; rather, they appear to have been grounded on the courts' general, supervisory power to assure fair procedure. People v. North, 96 Misc.2d 637, 409 N.Y.S.2d 482 (Amherst Town Court, Erie Cty.) (independent test of blood samples); People v. Inness, 69 Misc.2d 429, 326 N.Y.S.2d 669 ......
2 cases
  • Quinn v. Aetna Life & Cas. Co., No. 78 C 1628.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 28, 1979
    ...of action for injunction as a result of the fact that they may be injured by defendant's actions and have no adequate remedy at law. 409 N.Y.S.2d at 482. Following the state court decision plaintiffs consented to an order severing their claims against Aetna from their claims against the mag......
  • People v. Karpeles
    • United States
    • New York City Court
    • December 21, 1989
    ...authority; rather, they appear to have been grounded on the courts' general, supervisory power to assure fair procedure. People v. North, 96 Misc.2d 637, 409 N.Y.S.2d 482 (Amherst Town Court, Erie Cty.) (independent test of blood samples); People v. Inness, 69 Misc.2d 429, 326 N.Y.S.2d 669 ......

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