People v. Porter

• Decision Date: 23 December 1974
• Citation: 46 A.D.2d 307,362 N.Y.S.2d 249
• Parties: The PEOPLE of the State of New York, Respondent, v. William L. PORTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 249

362 N.Y.S.2d 249

46 A.D.2d 307

The PEOPLE of the State of New York, Respondent, v. William L. PORTER, Appellant.

Supreme Court, Appellate Division, Third Department.

Dec. 23, 1974.

George E. Abdella, Gloversville, for appellant.

Robert L. Maider, Dist. Atty., Johnstown, for respondent.

Before HARLIHY, P.J., and GREENBLOTT, COOKE, KANE and REYNOLDS, JJ.

COOKE, Justice.

At approximately midnight of May 26, 1973, the vehicle which defendant was driving was involved in a head-on collision with an automobile operated by Bonita Catucci on Route 30A in the City of Gloversville. Miss Catucci was killed and defendant seriously injured in the crash. At approximately 12:15 A.M. on May 27, 1973, defendant was taken to the emergency room of Nathan Littauer Hospital and, shortly thereafter, Lieutenant Ralbovsky arrived. He testified that defendant smelled of alcohol and that he informed defendant that he was going to be arrested for driving while intoxicated and requested him to submit to a blood test. Defendant refused at first and he was then warned that his failure to submit to the test would result in the automatic loss of his license. Dr. D'Errico also spoke to the defendant to impress upon him the seriousness of the situation and defendant consented to the test.

Barbara Svolos, a registered nurse, thereupon extracted a quantity of blood and placed it in a test tube which she immediately gave to the Lieutenant. There is evidence in the record that the blood sample was extracted at approximately 1:15 A.M. on May 27, 1973. Ralbovsky placed the test tube in his pants pocket and later took it to the police station where he sealed it and locked it in the 'money drawer'. Sometime later, he personally delivered the sealed test tube to the chemist, Charles Ackerbauer, and obtained a receipt. Ralbovsky subsequently received a Cartificate of Analysis from Ackerbauer stating that there was 0.21% Of alcohol, by weight, in the blood sample, and specifying the method of analysis.

On June 14, 1973 defendant was indicted by the Fulton County Grand Jury for manslaughter in the second degree, criminally negligent homicide, driving while intoxicated and operating a motor vehicle while having .10 of one per cent or more, by weight, of alcohol in his blood. On October 23, 1973, said indictment was dismissed, over defendant's objection, upon oral motion of the District Attorney, on the ground that a witness with exculpatory evidence, known to the prosecution, had not been called to testify before the Grand Jury which indicted defendant. Permission to resubmit the matter to the Grand Jury was granted and defendant was subsequently re-indicted on the same charges enumerated earlier with the exception of manslaughter in the second degree.

Prior to trial, defendant unsuccessfully moved to suppress the results of the blood test on grounds which have been resurrected on this appeal and are detailed later in this opinion. A jury trial commenced on May 8, 1974, during the course of which several witnesses, including Lieutenant Ralbovsky, Dr. D'Errico and Nurse Svolos, testified that defendant smelled of alcohol, was belligerent, and used abusive language while in the emergency room. There is also evidence in the record that, shortly before the fatal collision, defendant was speeding. Other witnesses testified that Bonita Catucci and her passenger, Jill Nadborny, had shared between five and ten marijuana cigarettes with three other persons shortly before the fatal accident. During the trial, an unforeseeable difficulty arose in proving the results of the blood test. The chemist who performed the test died on May 12, 1974 while the trial was in progress. Deprived of his testimony, the People sought to introduce in evidence his records of the analysis of the blood sample. The chemist's son, who had been employed in the laboratory for seven years and was then so employed, was called as a witness and he testified to his father's qualifications, stating that the latter had performed several hundred blood tests in the course of his business. He further testified that his father kept a log of every test he performed and placed a check mark next to each entry as payment for the services was received. He had observed his father perform at least a dozen tests and it was the latter's practice to record the results of the test immediately upon completion thereof. No other notes were made. The log book was then introduced into evidence over defendant's objection, the witness having identified the handwriting as that of his father. The entry dated May 27, 1973 with defendant's name written next to it states 'Narcotics Neg. Hallucinogens Neg. No test for marihuana'. Certain mathematical computations follow and at the extreme right hand side of the page is the figure 0.21%.

Upon Voir dire examination prior to the admission of said records into evidence, defendant's attorney pointed out that not all entries in the log appear in chronological order. The next witness called was a chemist employed at the New York State Police Laboratory who testified that he had performed over 5,000 blood tests and that the method of analysis used by Ackerbauer was a scientifically accepted method. He recognized the method of notation in the deceased chemist's records as a standard method and stated that, if the measurements recorded were taken accurately, the conclusion was merely a matter of mathematical computation.

At the conclusion of the trial, the jury returned a verdict of guilty of driving while intoxicated and defendant was sentenced to one year of imprisonment in the Fulton County Jail. Defendant raises a host of challenges to his conviction which can be classified into four basic arguments: first, that it was error to permit the District Attorney to resubmit the matter to the Grand Jury; second, that the blood sample was illegally obtained and the results of the blood test were erroneously admitted into evidence; third, that the Trial Judge improperly restricted the defense in its attempt to show bias on the part of Lieutenant Ralbovsky; and finally, that the verdict was against the weight of the evidence.

Since we are of the opinion that defendant's guilt of driving while intoxicated was amply established by the testimony of the witnesses at trial, it only remains to be considered whether such legal errors were committed as to deprive defendant of a fair trial.

The most substantial of defendant's arguments challenging his conviction relate to the taking of the blood sample and the introduction into evidence of records of the blood test. He claims that he did not voluntarily and expressly consent to the taking of the blood sample; that he had not been placed under arrest within two hours prior to the taking of the sample; that the chain of possession of the sample was not adequately established; and that the accuracy of the blood test could not be established by a business record without depriving him of his constitutional right to confrontation and cross-examination of witnesses against him.

Subdivision 1 of section 1194 of the Vehicle and Traffic Law deems the operation of a motor vehicle in this State to be consent to a chemical test for alcoholic content of the operator's blood. While defendant negated this consent by initially exercising his statutory right to refuse to submit to the test, he relented upon being informed of the consequences of his refusal. Defendant was conscious and coherent at the time of his consent which was expressly given according to the testimony of all present in the emergency room. His claim that he was not placed under arrest within two hours prior to the extraction of the blood sample is belied by the record which clearly indicates that he was arrested in the emergency room. It was not necessary or reasonable, under the circumstances, for the police officer to do more than exercise his lawful authority over def...