Appellate Court Hears Evidenciary Misfeasance

Panel Hears Case Where Judge Overturned Conviction Due to Lab Woes
The New York Law Journal by Andrew Keshner  -  November 2, 2011

Both sides faced tough questioning from a Brooklyn appellate panel yesterday in a case over whether evidence of missteps in the procedures of a now-closed crime lab justified a judge's decision to overturn a drunken-driving conviction.  Earlier this year, Nassau County Court Judge George R. Peck (See Profile) set aside Erin Marino's vehicular assault conviction for drunken driving that caused a multi-car collision, and ordered a new trial.  Judge Peck pointed out that the August 2010 conviction, after a bench trial, took place before evidence of faulty procedures and a possible cover-up led to the closure this past February of the Nassau County Police Department's Forensic Evidence Bureau, which had been put on probation two months earlier by a national accreditation board.  Of the 26 violations cited by the board, two pertained to the lab's blood-alcohol analysis.  In People v. Marino, 245N-2010, Judge Peck said that with "substantial evidence that testing misfeasance had occurred," the trier of fact, the judge himself, could have considered acquittal or a lesser charge if there were reasonable doubts about the lab result's validity (NYLJ, March 8).  But in oral arguments yesterday before the Appellate Division, Second Department, Nassau County Assistant District Attorney Yael V. Levy argued that revelations of the lab's shortcomings were "merely impeaching" in the face of the "overwhelming evidence" supporting Ms. Marino's guilt. That evidence, Ms. Levy said, included two reviews of the paperwork of Ms. Marino's results to confirm their accuracy and accounts of Ms. Marino's behavior from first responders arriving at the accident scene. "The trier of fact didn't analyze merely impeaching evidence in the context of all the evidence," Ms. Levy argued, noting that Judge Peck applied a lesser standard than the required probability standard of proof.  Ms. Marino's attorney, Brian J. Griffin of Foley Griffin in Garden City, countered that he had met the burden to set aside the conviction in the face of newly discovered evidence, given the totality of the circumstances.

Referencing the district attorney's public statements, court papers and a press release faulting the lab, and revelations of missteps by a lab analyst in other cases, Mr. Griffin said, "If you put that all together in here, we met that burden clearly."  Mr. Griffin said the panel had to determine if Judge Peck exercised an abuse of discretion in setting aside the conviction.  "It is not a minor burden," he said.  The panel, consisting of Justices Mark C. Dillon, Ariel E. Belen, John M. Leventhal and Ruth C. Balkin, challenged both sides.  For example, as Ms. Levy pressed her case, Justice Leventhal observed that the lab had already been put on probation once before, in 2006.  "You think this is merely impeaching?" he asked.  "Absolutely your honor. It doesn't have direct impact on this proceeding," Ms. Levy replied.  Justice Leventhal later said the revelation of the report after the trial "basically denied" the defense's right to cross examination, which could affected the verdict.  Justice Balkin also asked Ms. Levy why she did not consider Judge Peck's concerns with the lab's deficiencies "an integral factor."  Ms. Levy emphasized that subsequent reviews of Ms. Marino's lab result paperwork confirmed the accuracy of the initial testing.  Justice Belen challenged Mr. Griffin, pointing to lower court testimony that even if equipment was improperly calibrated, its use in a consistent method use would result in consistent results.  "I think we need to take a step back," Mr. Griffin said. "All experts say if you don't follow proper scientific procedure, the results are in question."  Meanwhile, Justice Leventhal pointed out that the lab did not calculate Ms. Marino's estimated speed nor did it observe her hit other cars.  Mr. Griffin responded that he was pressing for a retrial, not dismissal.  "The facts as I know, it's very strong this woman was drinking," Justice Leventhal later replied.  Ms. Marino, who is free on bail, had faced up to seven years in prison.  Her case is believed to be the first of several known post-conviction challenges stemming from the lab's closure.  In September, Acting Supreme Court Justice Joseph C. Calabrese in Nassau County rejected a challenge from defendant Germaine McCants, who was convicted of counts like third-degree criminal sale of a controlled substance (NYLJ, Sept. 14).  But in July, District Court Judge Sharon Gianelli in Nassau County ordered a new trial for Jaclyn Conneely based of newly discovered evidence of problems at the lab. Ms. Conneely was convicted on driving while intoxicated per se and a traffic infraction.  Those decisions are being appealed to the Appellate Division, Second Department, and the Appellate Term, Second Department, respectively.  Tammy J. Smiley and Robert A. Schwartz appeared on the brief for the district attorney's office.  Richard J. Barbuto, of Babylon, appeared of counsel with Mr. Griffin on Ms. Marino's brief.  Andrew Keshner can be contacted at akeshner@alm.com.