People v. Quinn

• Decision Date: 24 October 1991
• Citation: 580 N.Y.S.2d 818,153 Misc.2d 139
• Parties: The PEOPLE of the State of New York v. Mary QUINN, Defendant.
• Court: New York District Court

Page 818

580 N.Y.S.2d 818

153 Misc.2d 139

The PEOPLE of the State of New York v. Mary QUINN, Defendant.

District Court, Suffolk County First District.

Oct. 24, 1991.

James M. Catterson, Jr., Dist. Atty. of Suffolk County by Joseph Lombardo, Richard Frankel, Riverhead, for the People.

Siben & Siben by Ira Kash, Bay Shore, for defendant.

PETER G. DOUNIAS, Judge.

Defendant Mary Quinn stands charged with Operating a motor vehicle while under the influence of a drug, to wit, cocaine, in violation of Vehicle and Traffic Law § 1192(4). At issue before the Court is whether certain evidence sought to be introduced at trial by the People meets the standards of admissibility set forth in Frye v. U.S., 293 F. 1013 [DC Circuit 1923] and People v. Middleton, 54 N.Y.2d 42, 444 N.Y.S.2d 581, 429 N.E.2d 100 [1981]. The pertinent facts are as follows:

Defendant was arrested in the early morning hours of August 1, 1988 by Troopers Brian M. Kennedy and E.S. Mlodynia of the New York State Police. After transport to a facility in East Islip, defendant submitted to a twelve step "Drug Influence Evaluation" administered by Trooper Kennedy. Trooper Kennedy was and is a "Drug Recognition Expert" ("DRE"), trained under the auspices of the International Association of Chiefs of Police and the DRE Coordinators of the State of New York.

The first segment of the evaluation or "protocol", as it is called, required a measurement of defendant's blood alcohol concentration. Defendant's BAC was .00. The second segment called for an interview of the arresting officer. As the arresting officer, Trooper Kennedy accordingly outlined the details leading up to and immediately following defendant's arrest. He also noted defendant's wide-eyed, anxious appearance immediately after arrest and an abnormal dilation of her pupils in low light. The third component of the protocol consisted of a "cursory" evaluation of the subject including a notation of her appearance, an initial taking of her pulse and a series of questions. Defendant was asked "What have you eaten and when?" to which she replied "Pizza at 12 p.m." She was asked "Have you been drinking and how much?", to which she replied that she had not been drinking. When asked what time she thought it was without looking at her watch, she estimated 1:30 a.m. (It was approximately 1:30.) She further told Trooper Kennedy that she had last slept the day before for 8 hours, that she was neither sick nor injured, nor epileptic or diabetic; that she did not take insulin; that she had no physical defects and was not currently under the care of a doctor or dentist. To the question, "Are you taking any medication or drugs?" defendant answered, "Just coke." At this stage of the evaluation, defendant's pulse was 110 beats per minute. Her pupils were equal in size and measured eight millimeters in room light. Trooper Kennedy also observed that defendant's speech was rapid, that her breath was stale, that her face was flushed and that she had a wide-eyed appearance.

The fourth component of the evaluation was a check of defendant's eyes for horizontal and vertical gaze nystagmus. Nystagmus is an involuntary jerking of the eyeball. The test for horizontal gaze nystagmus is performed by requiring the subject to focus on a stimulus, here a pen, which is passed horizontally back and forth across the subject's field of vision. As the subject's eyes focus upon the moving stimulus, a notation is made as to whether or not they smoothly pursue it. Then the stimulus forces the eyes to the limit of their range, called the maximum angle of deviation, both right and left. A notation is made as to whether nystagmus is present at the maximum angle and a further notation is made if nystagmus appears at an angle less than maximum. The test for vertical nystagmus is similar, differing only in that the stimulus is moved vertically and measures nystagmus appearing at vertical rather than horizontal angles. Finally, the stimulus is moved inward toward the bridge of the subject's nose to test the eyes' ability to converge.

Trooper Kennedy, noting that defendant was unable to focus her attention on the stimulus, reported that no nystagmus of any sort was observable. He also noted that her eyes converged property.

The next portion of the drug influence evaluation was devoted to four so-called psychophysical or "divided attention" tests. In the first of these, the Rhomberg test, defendant was instructed to stand with her hands at her sides and feet together, to tilt her head back, close her eyes and estimate, without counting out loud, the passing of 30 seconds. When asked, defendant said she understood these directions but estimated that 30 seconds had passed after only five seconds. Defendant had failed her first test.

The next test performed was the "walk and turn". Defendant was instructed to place her left foot in front of her right, heel touching toe, hands at her sides, and watch Trooper Kennedy demonstrate the procedure. Then, defendant performed the test herself, taking nine steps forward, again heel to toe with her arms at her sides, turning, then taking nine steps back. During both the instructional phase and the actual test itself, defendant could not keep her balance, stopping frequently and stepping off the line. Trooper Kennedy concluded that she had failed this test as well.

Defendant also failed the "one leg stand". This test required defendant to raise one foot six inches off the ground with her hands at her sides while counting to 30 in thousands, i.e. one-one thousand, two-one thousand, etc. Both left and right were tested. Defendant swayed and raised her arms to keep her balance. She also counted in ones instead of thousands as instructed.

The fourth divided attention test was the "finger to nose". Defendant was instructed to extend her arms outward, palms up, to tilt her head and close her eyes, and to touch her nose with whatever finger Trooper Kennedy directed her to. This test, Kennedy reported, the defendant passed.

The next component of the protocol required a set of vital signs. Defendant's pulse was 120 beats per minute. Her blood pressure registered 152 over 100, and her temperature was 99.9 degrees Fahrenheit.

Then defendant submitted to a "darkroom evaluation". After 90 seconds in "near darkness", Trooper Kennedy measured the size of her pupils using a tool called a pupilometer (People's Exhibits 15 and 16 in evidence). They measured seven millimeters. Creating "indirect" lighting by shining a penlight across defendant's nose, Trooper Kennedy took a second measurement of defendant's pupils. In indirect light, they measured six and one half millimeters. In response to direct light, Trooper Kennedy reported that defendant's pupils "pulsated" from five to five and one half millimeters, a phenomenon known as hippus. While in the darkroom Trooper Kennedy also looked for signs of oral and nasal drug ingestion and observed that defendant's nose was "very irritated and runny". A check of defendant's arms was negative for "tracks" or needle marks. She exhibited muscular rigidity and tremors and had a very tense appearance. Defendant was asked again if she had used drugs and when. She replied, "Coke. Two eightballs", and that she had used them at about 11:00 p.m. She was asked if she would submit to a blood test and ultimately did.

All data, observations and results gleaned from defendant's examination were recorded on a pre-printed form, People's Exhibit 28 in evidence. Finally, Trooper Kennedy was ready to complete the last portion of the protocol, to render his opinion as to whether or not defendant was impaired and if so, by what classification of drug. With reference to a "drug classification chart" (see People's Exhibit 3 in evidence), Kennedy concluded that defendant was impaired by the use of cocaine. Toxicological analysis of defendant's blood confirmed his opinion, adding that she had used diazepam (Valium) as well.

In a prosecution for violation of Vehicle and Traffic Law § 1192(4), it is of course the People's burden to prove beyond a reasonable doubt that a defendant was driving while impaired by the use of a drug (see People v. Wiley, 59 Misc.2d 519, 299 N.Y.S.2d 704). Accordingly, the People herein seek to offer the observations and measurements made by Trooper Kennedy during defendant's drug influence evaluation and his opinion at defendant's trial. After a lengthy hearing, the Court has been requested to rule on three issues: the admissibility under Frye of the results of the drug influence protocol as a whole; the admissibility under Frye of the horizontal gaze nystagmus component by itself; and a ruling as to Trooper Kennedy's qualification to accurately administer the evaluation and give his opinion at trial. It has been held that evidence of horizontal gaze nystagmus (HGN) sought to be introduced as indicia of intoxication is inadmissible without a showing that its underlying principles meet the Frye standard (see People v. Erickson, 156 A.D.2d 760, 549 N.Y.S.2d 182 [3d dept. 1989]; People v. Torrey, 144 A.D.2d 865, 534 N.Y.S.2d 807 [3d dept. 1988]; People v. Saputo, No. 87-211 [App.Term, 9th & 10th Jud.Dists. 4/14/88], but no rulings have come to light. It appears further that the Drug Recognition protocol has not been addressed either. These are, then, all questions of apparent first impression in the State of New York.

Nine witnesses testified on behalf of the People. They are Richard Clark Studdard, formerly a sergeant with the City of Los Angeles Police Department and originator of the DRE program; Marcelline Burns, Ph.D., a research psychologist and director of the Southern California Research Institute; Sergeant Thomas Page of the City of Los Angeles Police Department, current Officer in Charge of the DRE Unit; Zenon Zuk, M.D.; David O. Peed, O.D.; Edward M. Briglia, Ph.D., Chief of the Toxicology Laboratory of the Medical Examiner for the County of Suffolk; ...