Opinion
Decided May 15, 1984
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Andrew F. Siedlecki, J.
Peter A. Gorton for appellant.
Robert J. Simpson, District Attorney ( Robert J. Eberz of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, and a new trial ordered.
Defendant did not request a missing witness charge as to the prosecution's failure to call Deputy Shirley to testify and no reviewable issue is presented as to that matter. The prosecution, however, was not entitled to the charge, to which defendant objected, which expressly forbade the jury from drawing any negative inference from the prosecution's failure to call Deputy Shirley. Thus, the trial court's instruction on this issue was error.
Additionally, it was error on the part of the trial court, to which defendant took exception, to instruct the jury in effect that they could ignore the failure of the police to have administered the breathalyzer test in accordance with the rules and regulations of the Tioga County Sheriff's Department (Vehicle and Traffic Law, § 1194).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed and a new trial ordered in a memorandum.