People v. Pfahler

• Decision Date: 31 January 1992
• Citation: 579 N.Y.S.2d 520,179 A.D.2d 1062
• Parties: PEOPLE of the State of New York, Respondent, v. Eric PFAHLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 520

579 N.Y.S.2d 520

179 A.D.2d 1062

PEOPLE of the State of New York, Respondent, v. Eric PFAHLER, Appellant.

Supreme Court, Appellate Division Fourth Department.

Jan. 31, 1992.

Jeffrey Sellers, Buffalo, for appellant.

Kevin M. Dillon by Rosanne Johnson, Buffalo, for respondent.

Before DENMAN, P.J., and CALLAHAN, GREEN, LAWTON and DAVIS, JJ.

MEMORANDUM:

On appeal from his conviction of second degree vehicular assault (2 counts), assault in the third degree and speeding, defendant's primary contention is that the court should have suppressed his blood test results because he was denied his right to counsel. The hearing evidence indicates that defendant was repeatedly advised of his Miranda rights and DWI warnings. Defendant indicated that he understood his rights and agreed to submit to a blood test. When defendant's attorney called the hospital and was informed that defendant was about to have a blood test, the attorney did not ask to speak to defendant and did not object to the blood test. The uncontroverted hearing evidence establishes that defendant was told that his counsel had called before he submitted to the test. Inasmuch as defendant's only right in this context is the right to consult with counsel before deciding whether to submit to the test, there was no denial of defendant's right to counsel (see, People v. Shaw, 72 N.Y.2d 1032, 1033-1034, 534 N.Y.S.2d 929, 531 N.E.2d 650; People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351).

Contrary to defendant's contention, the court did not err in imposing a sanction other than dismissal of the indictment for the destruction of the tape of the surreptitiously recorded telephone conversation. The determination of an appropriate sanction for the People's failure to preserve discoverable material is a matter within the trial court's discretion (People v. Kelly, 62 N.Y.2d 516, 521, 478 N.Y.S.2d 834, 467 N.E.2d 498; People v. Haupt, 128 A.D.2d 172, 515 N.Y.S.2d 537, affd 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129). To determine the appropriate sanction, the trial court must consider a number of factors, including the significance of the missing evidence in the context of the available proof, and the degree of prosecutorial fault, particularly whether the loss was intentional or inadvertent. In determining an appropriate sanction, "the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society" (People v. Kelly, supra, 62 N.Y.2d at 520, 478 N.Y.S.2d 834, 467 N.E.2d 498).

In the circumstances of this case, the court did not abuse its discretion in refusing to impose the drastic remedy of dismissal (People v. Haupt, 71 N.Y.2d 929, 931, 528 N.Y.S.2d 808, 524 N.E.2d 129, supra ), or in denying defendant's request for an adverse inference charge. In our view, the illegally recorded tape would not have greatly aided defendant either on his right to counsel claim or in his defense. In light of the overwhelming proof of intoxication, including the blood test indicating that defendant's blood alcohol content was .26%, it is unlikely that, as defendant contends, the tape would have established that defendant was not intoxicated. Given that the exculpatory value of the missing evidence is completely speculative (see, People v. Scattareggia, 152 A.D.2d 679,...