People v. Shepherd

CourtNew York Town Court
Writing for the CourtJOHN J. ARK
Citation460 N.Y.S.2d 722,118 Misc.2d 365
Decision Date25 March 1983
PartiesThe PEOPLE of the State of New York, v. David C. SHEPHERD.

Page 722

460 N.Y.S.2d 722
118 Misc.2d 365
The PEOPLE of the State of New York,
v.
David C. SHEPHERD.
Brighton Town Court, Monroe County.
March 25, 1983.

Donald O. Chesworth, Jr., Dist. Atty., for the People; Gregory J. Huether, Asst. Dist. Atty., of counsel.

Page 723

Friedman & Greenfield, P.C., Rochester, for defendant; Mark A. Drexler, Rochester, of counsel.

OPINION OF THE COURT

JOHN J. ARK, Justice.

DECISION

On November 18, 1982, the defendant, DAVID C. SHEPHERD was arrested by a New York State Trooper and charged with operating a motor vehicle while intoxicated in violation of § 1192 of the New York Vehicle and Traffic Law, and other related traffic charges. Mr. Shepherd allegedly committed this crime on Interstate 590 in the Town of Brighton. Subsequent to his arrest, Mr. Shepherd was driven to the Henrietta, New York State Police (hereinafter "NYSP") substation where a sample of his breath was tested in a Smith & Wesson Model 900 Breathalyzer. The NYSP then prepared one or more reports alleging that Mr. Shepherd's blood alcohol content had been measured at .18 percent by weight.

On January 13, 1983, the defendant demanded, inter alia, that the State provide him with a sample of his breath taken at the time of his arrest. The State replied that no attempt has been made to save the breath sample tested and no separate breath sample was saved or preserved for later analysis. The defense then moved for an order suppressing the evidence of the Breathalyzer test result on the ground that the failure of the NYSP to preserve a sample of the defendant's breath constituted a violation of the defendant's right to due process.

On March 10, 1983, a hearing was held at which the defendant presented an expert witness, Dr. D.R. Wilkinson, Professor, Department of Chemistry, Delaware State College, Dover, Delaware, and co-author of The Trapping, Storing, and Subsequent Analysis of Ethanol in In-Vitro Samples Previously Analyzed by a Nondestructive Technique, 26 Journal of Forsenic Sciences No. 4, Oct. 1981 p. 671. At the hearing, Dr. Wilkinson essentially reiterated his findings in the above referred to Article and was cross-examined by the prosecution. In large measure, Dr. Wilkinson's research established the reliability of the original breath tests done by the police through the testing of the second sample by chemists.

After the hearing, this Court is convinced that during an arrest for driving while intoxicated, where a breath test has been administered it is both practical and cost effective for the police to save a sample of a defendant's breath (or its alcohol content) for future scientifically reliable independent analysis. However, the question then becomes, do the People have a Constitutional duty to save a sample of the defendant's breath alcohol?

The United States Supreme Court decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) is the leading case outlining the prosecution's duty to preserve and disclose to defense counsel all material which, if presented at trial, would assist in the search for truth. In part, Brady holds:

"[T]he suppression by the prosecution of evidence favorable to any accused upon request violated due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 86, 83 S.Ct. at 1196.

Judge Skelly Wright articulated a principle implicit in Brady with his decision in U.S. v. Bryant, 439 F.2d 642 (D.C.Cir.1971). The Bryant case concerned a defense demand for disclosure of a tape recording made by government agents of motel room conversations between the defendants and an undercover agent allegedly concerning a sale of narcotics. The prosecution claimed it lost the tape. Although neither the Court nor the defense counsel knew whether or not the tape contained exculpatory evidence, the Court did know that the missing tape was "absolutely crucial to the question of (defendant's) guilt or innocence." 439 F.2d at 648. The Court decided at 651 that

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[T]he duty of disclosure attaches in some form once the government has first gathered and taken possession of evidence. Otherwise, disclosure might be avoided by destroying vital evidence before prosecution begins or before defendants hear of its existence. Hence, we hold that before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation. Only if the evidence is carefully preserved during the early stages of investigation will disclosure be possible later.

The Bryant decision is often applied in New York. See e.g., People v. Saddy, 84 A.D.2d 175, 178, 445 N.Y.S.2d 601 (2d Dept.1981); People v. Watkins, 67 A.D.2d 741, 742, 412 N.Y.S.2d 235 (3d Dept.1979); People v. Perez, 50 A.D.2d 908, 377 N.Y.S.2d 564 (2d Dept.1975). Furthermore, this duty holds regardless of whether the material is clearly exculpatory or simply may have been. Bryant, supra. The alcohol content of the...

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8 practice notes
  • People v. Molina
    • United States
    • New York City Court
    • October 7, 1983
    ...a mandate for the preservation of breath samples. The only two reported New York cases have split on this issue. Cf. People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722 with People v. Rich, 118 Misc.2d 1057, 462 N.Y.S.2d 163. As a general proposition, Bryant has been applied by the lower ......
  • People v. Torres
    • United States
    • New York City Court
    • June 18, 1984
    ...original and preserved for the defendant's independent testing (People v. Molina, supra; People v. Richter, supra; People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722 People v. Page 777 Darbouze, 122 Misc.2d 654, 471 N.Y.S.2d 993 ). While the process of preserving a second sample is withi......
  • People v. Darbouze
    • United States
    • New York City Court
    • January 20, 1984
    ...the breath trapping requirement by statute.) In New York, the Brighton Town Court, Monroe County (1983) in People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722, stated that where evidence produced by the breathalyzer test cannot be disclosed because of its intentional but nonmalicious dest......
  • People v. Amores, AP-3
    • United States
    • New York City Court
    • April 14, 1989
    ...70 N.Y.2d 375, 521 N.Y.S.2d 212, 515 N.E.2d 898; People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650; People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722, affd. 130 Misc.2d 284, 496 N.Y.S.2d 205, reversed 68 N.Y.2d 841, 508 N.Y.S.2d 173, 500 N.E.2d Recently, the court in Peop......
  • Request a trial to view additional results
8 cases
  • People v. Molina
    • United States
    • New York City Court
    • October 7, 1983
    ...a mandate for the preservation of breath samples. The only two reported New York cases have split on this issue. Cf. People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722 with People v. Rich, 118 Misc.2d 1057, 462 N.Y.S.2d 163. As a general proposition, Bryant has been applied by the lower ......
  • People v. Torres
    • United States
    • New York City Court
    • June 18, 1984
    ...original and preserved for the defendant's independent testing (People v. Molina, supra; People v. Richter, supra; People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722 People v. Page 777 Darbouze, 122 Misc.2d 654, 471 N.Y.S.2d 993 ). While the process of preserving a second sample is withi......
  • People v. Darbouze
    • United States
    • New York City Court
    • January 20, 1984
    ...the breath trapping requirement by statute.) In New York, the Brighton Town Court, Monroe County (1983) in People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722, stated that where evidence produced by the breathalyzer test cannot be disclosed because of its intentional but nonmalicious dest......
  • People v. Amores, AP-3
    • United States
    • New York City Court
    • April 14, 1989
    ...70 N.Y.2d 375, 521 N.Y.S.2d 212, 515 N.E.2d 898; People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650; People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722, affd. 130 Misc.2d 284, 496 N.Y.S.2d 205, reversed 68 N.Y.2d 841, 508 N.Y.S.2d 173, 500 N.E.2d Recently, the court in Peop......
  • Request a trial to view additional results

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