Opinion
2019-1049 N CR
12-09-2021
The PEOPLE of the State of New York, Respondent, v. Stephen HEALD, Appellant.
Bekoff, Feinman, LoPiccolo & Kauffman, PC (Justin Feinman of counsel), for appellant. Nassau County District Attorney (Sarah S. Rabinowitz and Benjamin A. Kussman of counsel), for respondent.
Bekoff, Feinman, LoPiccolo & Kauffman, PC (Justin Feinman of counsel), for appellant.
Nassau County District Attorney (Sarah S. Rabinowitz and Benjamin A. Kussman of counsel), for respondent.
PRESENT: TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was arrested on June 17, 2017 and charged in a simplified traffic information with common-law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3] ). The City Court did not administer the oath of truthfulness to prospective jurors prior to the start of jury selection, as required by CPL 270.15 (1) (a). However, this issue "is unpreserved for appellate review" as "defendant did not draw the [City] Court's attention to the alleged error" ( People v Mack , 135 AD3d 962, 963-964 [2016] ; see People v Lyons , 94 AD3d 1020, 1020 [2012] ; People v Hampton , 64 AD3d 872, 877 [2009] ), and we decline to reach it as a matter of discretion in the interest of justice.
Prior to the second day of jury selection, defendant attempted to present the judge, through a court clerk, with a gavel engraved with the judge's name. Defendant explained that he intended it to be merely a joke gift. Defense counsel moved the judge to recuse himself, which the prosecutor joined. Judge McCord, in denying the motion, noted that "what occurred here today will not in any way prevent me [from] address[ing] this case in a fair and impartial ma[nn]er for all parties and that is the most important thing." Recusal was not mandatory in this situation (see Judiciary Law § 14 ). Although discretionary recusal is the correct course of action where a judge's "impartiality might reasonably be questioned" ( 22 NYCRR 100.3 [C] [1]), here nothing about the City Court's conduct before, during or after the trial belied that court's reasonable determination that defendant's act would not impact, in any manner, its ability to be fair. Thus, the court did not improvidently deny defendant's recusal motion.
According to undisputed trial evidence, while in post-arrest police custody, defendant complained of pain and was transported to a hospital where he authorized a nurse to draw blood for medical purposes. During that time, defense counsel called the police station seeking to speak with defendant, but the two were not then able to speak directly. Due to this miscommunication, an officer told defendant at the hospital that his attorney wanted him to refuse all testing. Defendant asserts, and the People concede correctly, that this constituted a violation of his limited right to counsel. However, this error was harmless. In particular, contrary to defendant's contention, this error did not mandate trial suppression of the 0.21% BAC result obtained upon analysis of the blood sample. Defendant either agreed to allow the hospital staff to draw his blood before his attorney attempted to contact him, or agreed after he was told his attorney wanted him to refuse. Moreover, the blood sample was procured from the hospital via the independent means of a judicial subpoena.
Defendant's preserved assertion on appeal that, because the prosecution did not admit maintenance and calibration records into evidence, the foundational requirement that the gas chromatograph be in working order was not satisfactorily demonstrated, is unavailing. Certainly, "[i]n criminal matters the scientific reliability and accuracy of a machine measuring blood alcohol content for forensic purposes must be established before such test results may be admitted in evidence" ( People v Campbell , 73 NY2d 481, 485 [1989] ). However, testimonial and documentary evidence by the Nassau County Medical Examiner's Office forensic scientist who analyzed defendant's blood sample, satisfied this prerequisite. Defendant's claim is further undermined by defense expert witness Dr. Dominic Labianca, a chemist with extensive research experience concerning the BAC analysis of breath and blood samples, who, by his testimony, agreed that the gas chromatograph instrument was calibrated and in working order, and that the procedure followed by the Medical Examiner's Office in analyzing defendant's blood sample was sound.
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, P.J., EMERSON and DRISCOLL, JJ., concur.