The People, Respondent,v.Brian Novak, Appellant.

Brief

N.Y.September 6, 2017

APL-20 16-00109 Time Requested: 10 minutes To Be Argued by Danielle Neroni Reilly, Esq. STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, -against- BRIAN NOVAK, Defendant-Appellant ****************************************************************** APPELLANT'S BRIEF SCHENECTADY COUNTY NO.: 2013-2628 ****************************************************************** Danielle N eroni Reilly, Esq. Attorney for Defendant-Appellant Office and P.O. Address 668 Madison Avenue Albany, New York 12208 Tel: (518) 366-6933 I (518) 453-0173 Fax: (518) 426-1526 Email: danineroni@aol.com TABLE OF CONTENTS APPELLANT'S BRIEF Table of Authorities... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... u Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . 1 Statement showing that this Court has Jurisdiction... ... ... ... ... ... ... ... ... ... 2 Preliminary Statement and Statement of Facts... ... ... ... ... ... ... ... ... ... ... ... 2 ARGUJ\;1ENT Point I County Court erred by refusing to recuse itself from the appeal of its own verdict... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3 Point II The prosecutor's information upon which Appellant was tried and convicted was jurisdictionally defective... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 6 Point HI The trial Court abused its discretion by refusing to impose any sanction for the People's Rosario violation... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 8 Point IV The trial Court erred in admitting evidence regarding the Horizontal Gaze Nystagmus (HGN) test without first establishing its scientific validity ... 11 Point V The evidence presented at trial was legally insufficient to support Appellant's conviction... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 14 CONCLUSION... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 18 TABLE OF AUTHORITIES Federal Cases Brady v. Maryland, 373 U.S. 83 (1963) .............................................. 8, 9 Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ........................... 3, 4, 5 Clemmons v. Wolfe, 377 F.3d 322 (3d Cir.2004) ................................... 4 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ................................ 11 In re Murchison, 349 U.S. 133 (1955) ................................................ 4, 5 Mayberry v. Pennsylvania, 400 U.S. 455 (1971) .................................... 5 McDaniel v. Brown, 130 S. Ct. 665 (2010) .......................................... 15 Moran v. Dillingham, 174 U.S.153 (1899) .......................................... 4 Offutt v. United States, 348 U.S. 11 (1954) .......................................... 5 Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339 (1913) ................ 4 Rice v. McKenzie, 581 F.2d 1114 (4th Cir.1978) .................................... 5 Russell v. Lane, 890 F.2d 947 (7th Cir. 1989) ........................................ 4 Tumey v. State of Ohio, 273 U.S. 510 (1927) ........................................ 5 United States v. Agurs, 427 U.S. 97 (1976) ........................................... 9 United States v. Wolfson, 558 F.2d 59 (2d Cir.1977) ............................... 4 Weddington v. Zatecky, 721 F.3d 456 (7th Cir. 2013) .............................. 4 Williams-Yulee v. Florida Bar, 135 S.Ct.1656 (2015) .............................. 4 State Cases Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014) ................... 12 Corradino v. Corradino, 48 N.Y.2d 894 (1979) ...................................... 3, 5 County of Nassau v. Canavan, 1 N.Y.3d 134 (2003) ................................ 7 Giordano v. Market America, Inc., 15 N.Y.3d 590 (2010) ......................... 11 Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) .................................... 12 People v. Angelo, 88 N.Y.2d 217 (1996) ............................................. 12 People v. Banch, 80 N.Y.2d 610 (1992) .......................................... 9, 10, 11 ii People v. Barber, 43 Misc. 3d 1225(A) (Town Ct. 2011) ........................ 11, 12 People v. Baron, 107 Misc.2d 59 (App. Term 1980) ................................ 6 People v. Battease, 74 A.D.3d 1571 (3d Dept. 2010) ............................... 14 People v. Bramble, 207 A.D.2d 407 (2d Dept. 1994) ............................... 9, 10 People v. Brockway, 277 A.D.2d 482 (3d Dept. 2000) .............................. 11 People v. Contes, 60 N.Y.2d 620 (1983) .............................................. 14 People v. Cortez, 149 Misc. 2d 886 (Crim. Ct. 1990) ............................... 10 People v. Consolazio, 40 N.Y.2d 446 (1976) ........................................ 10 People v. Cruz, 48 N.Y.2d 419 (1979) ................................................ 15 People v. Dreyden, 15 N.Y.3d 100 (2010) ............................................ 6, 7 People v. Erickson, 156 A.D.2d 760 (3d Dept. 1989) ............................... 11 People v. Finch, 19 :Misc.3d 840 (Dist. Ct. 2008) .................................... 7 People v. Fisher, 167 Misc.2d 850 (Crim. Ct. 1995) ................................. 7 People v. Flood, 25 Misc.3d 843 (Dist. Ct. 2006) ................................... 6, 7 People v. Gallup, 302 A.D.2d 681 (3d Dept. 2003) ................................. 12 People v. Greco, 12 Misc.3d 83 (App. Term 2006) .................................. 6, 7 People v. Green, 192 Misc.2d 296 (Dist. Ct. 2002) ............................... 6, 8 People v. Hagmann, 175 A.D.2d 502 (3d Dept. 1991) ........................... 15 People v. Harper, 37 N.Y.2d 96 (1975) ............................................. 6 People v. Heidelmark, 214 A.D.2d 767 (3d Dept. 1995) ......................... 11, 12 People v. Hines, 97 N.Y.2d 56 (2001) ............................................... 14 People v. Jackson, 18 N.Y.3d 738 (2012) ........................................... 7 People v. Karns, 130 Misc.2d 247 (City Ct. 1985) ................................. 10 People v. Kelly, 62 N.Y.2d 516 (1984) .............................................. 9 People v. Key, 42 N.Y.2d 98 (1977) ................................................ 6, 7 People v. LeGrand, 8 N.Y.3d 449 (2007) ........................................... 13 People v. Lee, 80 A.D.3d 877 (3d Dept. 2011) .................................... 14 111 People v. Ligon, 188 Misc.2d 477 (Dist. Ct. 2001) ................................. 6 People v. Marr, 177 A.D.2d 964 (4th Dept. 1991) .................................. 10 People v. McDonald, 27 A.D.3d 949 (3d Dept. 2006) .............................. 15 People v. Middleton, 54 N.Y.2d 42 (1981) .......................................... 13 People v. Moreno, 70 N.Y.2d 403 (1987) ............................................. 3 People v. Quarles, 168 Misc.2d 638 (City Ct. 1996) ................................... 6, 8 People v. Quinto, 18 N.Y.3d 409 (2012) ............................................. 6 People v. Rosario, 9 N.Y.2d 286 (1961) ............................................. 8 People v. Stirrup, 91 N.Y.2d 434 (1998) ............................................. 7 People v. Sweeney, 18 Misc.3d 1134(A) (City Ct. 2008) ......................... 9, 10 People v. Torres, 190 A.D.2d 52 (3d Dept. 1993) .............................. 9, 10, 11 People v. Vilardi, 76 N.Y.2d 67 (1990) .............................................. 10 People v. Wallace, 76 N.Y.2d 953 (1990) ....................................... 9, 10, 11 People v. Wenz, 12 Misc.3d 134(A), 820 N.Y.S.2d 845 (App. Term 2006) .... 17 People v. Wernick, 89 N.Y.2d 111 (1996) ........................................... 11 People v. Wesley, 83 N.Y.2d 417 (1994) ............................................. 12 People v. Williams, 32 Misc.3d 135(A), 936 N.Y.S.2d 61 (App. Term 2011) ... 6, 7 Statutes and Other Authorities 28 u.s.c. § 47 ............................................................................ 4 28 u.s.c. § 455 ........................................................................... 5 CPL § 1.20(17) .......................................................................... 7 CPL §1.20(39) ........................................................................... 7 CPL § 30.10(2)(d) ....................................................................... 6 CPL § 100.10 ........................................................................... 7 CPL § 100.50 ........................................................................... 6, 7 CPL § 240.20 ............................................................................ 10 CPL § 290.10 ............................................................................. 13 IV CPL § 350.10(2) .......................................................................... 3 CPL § 440.10(1)(a) ....................................................................... 7 CPL § 470.05(2) .......................................................................... 14 VTL § 1192(1) ............................................................................ 7 VTL § 1193(1)(a) ........................................................................ 7 22 NYCRR 100.3(E)(1) ................................................................. 5 v STATEMENT OF QUESTIONS PRESENTED 1. Did County Court err in deciding Appellant's appeal, since the same Judge had presided over Appellant's bench trial in this case? 2. Was Appellant tried and convicted on a jurisdictionally defective accusatory instrument? 3. Did the trial Court abuse its discretion by refusing to impose any sanction for the People's Rosario violation? 4. Did the trial Court improperly admit evidence regarding Horizontal Gaze Nystagmus (HGN) without first establishing its scientific validity? 5. Was the evidence presented at trial legally sufficient to prove beyond a reasonable doubt that Appellant was impaired by the use of alcohol? 1 COURT OF APPEALS HAS JURISDICTION TO HEAR APPEAL AND TO DETERNIINE QUESTIONS PRESENTED On May 16, 2016, the Court of Appeals, through Associate Judge Jenny Rivera, certified that there were questions of law involved and that said questions of law out to be reviewed by the Court of Appeals. A. 1. Appellant submits that this Court has jurisdiction to hear this appeal and to determine the questions presented since the issues are properly set forth in the record and involve questions of law. PRELIMINARY STATEMENT AND STATEMENT OF FACTS On or about August 8, 2012, Appellant was arraigned on Uniform Traffic Tickets ("UTT's") charging Driving While Intoxicated, along with several traffic infractions. A. 5. On or about August 2, 2013, the People filed a Prosecutor's Information accusing Appellant of the reduced charge of Driving While Ability Impaired ("DW AI"), in violation of VTL § 1192(1). Id. Prior to trial, defense counsel moved to dismiss the DW AI charge on the ground that defendant's arraignment thereon was held more than one year from the date of the alleged offense. A. 6. See CPL § 30.10(2)(d); People v. Ligon, 188 Misc.2d 477 (Dist. Ct. 2001). The Court ultimately denied the defense motion to dismiss, ruling that "there was an appropriate superseding information within the statutory time frame and it superseded what was a lawful charge lawfully commenced in this Court within the one year period, it goes back to the same conduct and date, [inaudible] gonna deny the motion to dismiss for Statute of Limitations purposes." A. 7-8. A bench trial was held on the reduced charge of DWAI on October 2, 2013, November 13, 2013, and December 9, 2013 at the conclusion of which, Appellant was convicted. Appellant then then appealed his conviction to the Schenectady County Court. Judge Sypniewski, who had in the interim been elevated to County Court, affirmed his prior verdict. A. 1-3. 2 County Court erred in failing to recuse itself from this appeal from its own verdict. Moreover, the Court erred in allowing defendant to be tried and convicted based upon a jurisdictionally defective accusatory instrument, despite defense counsel's timely objection. The Court further committed reversible error by refusing to impose any sanction upon the People for a Rosario violation; by improperly admitting untested scientific evidence without conducting a Frye hearing, and by convicting Appellant despite the lack of legally sufficient evidence that he operated a motor vehicle while impaired by alcohol. For all of the above reasons, this Court should reverse the order of the Schenectady County Court and reverse Appellant's conviction. ARGUMENT I. COUNTY COURT ERRED BY REFUSING TO RECUSE ITSELF FROM THE APPEAL OF ITS OWN VERDICT As set forth above, Appellant's bench trial was conducted before the Honorable Matthew J. Sypniewski in Schenectady City Court. Judge Sypniewski was later elected to County Court, and subsequently presided over this appeal in that capacity. A. 1-3. Appellant respectfully submits that this was an abuse of discretion. "[T]his court has noted that it may be the better practice in some situations for a court to disqualify itself in a special effort to maintain the appearance of impartiality." People v. Moreno, 70 N.Y.2d 403, 406 (1987) (citing Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979)). See also Caperton v. AT. Massey Coal Co., 556 U.S. 868, 877 (2009). Appellant respectfully submits that this is such a situation. In other words, where, as here, a Judge has presided as the trier of fact over an Appellant's criminal trial [see CPL § 350.10(2)], and Appellant thereafter challenges the Judge's conduct of the trial, that same Judge should not be in a position to review his rulings and verdict on appeal. "Having been a part of that process a judge cannot be, in the very nature of things, wholly 3 disinterested in the conviction or acquittal of those accused. While he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal." In re Murchison, 349 U.S. 133, 137 (1955). Indeed, in the federal system, such an occurrence is explicitly prohibited by statute. See 28 U.S.C. § 47 ("No judge shall hear or determine an appeal from the decision of a case or issue tried by him."). See also Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 343-344 (1913); United States v. Wolfson, 558 F.2d 59, 61 n.6 (2d Cir.1977). The federal courts have often noted that "[i]t is important to a litigant and to the fairness and public reputation of judicial proceedings that review of a case be conducted by 'a judge other than the judge who presided over the case at trial."' Weddington v. Zatecky, 721 F.3d 456, 461 (7th Cir. 2013) (quoting Clemmons v. Wolfe, 377 F.3d 322, 325 (3d Cir.2004)). See also Moran v. Dillingham, 174 U.S. 153, 156-157 (1899); Swann v. Charlotte-Mecklenburg Bd. of Ed., 431 F.2d 135 (4th Cir.1970). This "bedrock principle of a hierarchal judiciary" [Clemmons, 377 F.3d at 325] applies with equal force to state trials. Cf Russell v. Lane, 890 F.2d 947, 948 (7th Cir. 1989) (habeas petitioner had the right to have his petition "addressed to a judge ... who had no emotional commitment to vindicating state justice as administered in the petitioner's case."). As the Supreme Court has recently reaffirmed, there is a '"vital state interest' in safeguarding 'public confidence in the fairness and integrity of the nation's elected judges."' Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2015) (quoting Caperton, 556 U.S. at 889). Thus, it is the mere appearance or risk of bias or partiality that must be avoided, for "the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the Court has asked whether, 'under a realistic appraisal of psychological tendencies and human weakness,' the interest 'poses such a risk of actual bias or 4 prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.'" Caperton, 556 U.S. at 883-884 (emphasis added) (citations omitted). See also I d. at 886 ("[O]bjective standards may also require recusal whether or not actual bias exists or can be proved.") (emphasis added). "To say the least, it would be unbecoming for a judge to sit in [an appellate court] to participate in the determination of the correctness, propriety and appropriateness of what he did in the trial of the case. After rendering decisions, some judges remain open minded, and some are unreluctant to confess previous error, but a reasonable person has a reasonable basis to question the impartiality of a judge who sits in a[n] [appellate court] to review his own decision as a trial judge." Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir. 1978) (emphasis added). As the Supreme Court put it sixty years ago: [O]ur system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that 'Every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.' Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13. Murchison, 349 U.S. at 136. See also Mayberry v. Pennsylvania, 400 u.s. 455 (1971). Thus, "[t]hough there is no canon of judicial ethics which specifically requires disqualification under these circumstances," for the reasons set forth above "it [would have been] the better practice for the court to have disqualified itself and thus to maintain the appearance of 5 impartiality." Corradino, 48 N.Y.2d at 895. See 22 NYCRR 100.3(E)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.") (emphasis added); 28 U.S.C. § 455 (same). For all of the above reasons, County Court's actions were manifestly improper, and Appellant's conviction must be reversed. II. THE PROSECUTOR'S INFORMATION UPON WHICH DEFENDANT WAS TRIED AND CONVICTED WAS JURISDICTIONALLY DEFECTIVE Moreover, Appellant argues that the accusatory instrument accusing him of Driving While Ability Impaired was both untimely and jurisdictionally defective. See CPL §§ 30.10(2)(d), 100.50(2); People v. Ligon, 188 Misc.2d 477 (Dist. Ct. 2001); People v. Williams, 32 Misc.3d 135(A), 936 N.Y.S.2d 61 (App. Term 2011); People v. Greco, 12 Misc.3d 83, 84 (App. Term 2006); People v. Baron, 107 Misc.2d 59, 61 (App. Term 1980); People v. Flood, 25 Misc.3d 843, 845 (Dist. Ct. 2006); People v. Green, 192 Misc.2d 296 (Dist. Ct. 2002); People v. Quarles, 168 Misc.2d 638, 646 (Rochester City Ct. 1996). As this Court has long recognized, "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." People v. Kev, 42 N.Y.2d 98, 99 (1977) (citing People v. Harper, 37 N.Y.2d 96, 99 (1975)). Accord People v. Dreyden, 15 N.Y.3d 100, 103 (2010). For several interconnected reasons set forth below, Appellant respectfully submits that the accusatory instrument upon which he was tried and convicted did not meet this standard, and that his conviction must therefore be reversed. First, as defense counsel argued at trial, the accusatory instrument upon which Appellant was tried was untimely under the clear language of CPL § 30.10(2)(d). A. 6-8. That is, Appellant was arrested on July 17, 2012 and was charged with, among other charges, Driving While 6 Intoxicated, in violation of section 1192, subdivision 3, of the Vehicle and Traffic Law of the State of New York. A. 54. On or about August 2, 2013, the People, in an effort to circumvent Appellant's right to a trial by jury, filed a Prosecutor's Information charging the offense of Driving While Ability Impaired, in violation of section 1192, subdivision 1, of the Vehicle and Traffic Law of the State of New York. A. 62. CPL § 30.10(2)(d) mandates that "[a] prosecution for a petty offense must be commenced within one year after the commission thereof." See People v. Quinto, 18 N.Y.3d 409, 412 (2012). "A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court." CPL § 1.20(17). See also People v. Stirrup, 91 N.Y.2d 434, 438 (1998). CPL § 1.20(39) defines "petty offense" as "a violation or a traffic infraction," such as DW AI. See VTL §§ 1192(1); 1193(1)(a); County of Nassau v. Canavan, 1 N.Y.3d 134, 139 n.1 (2003); People v. Fisher, 167 Misc.2d 850, 853 (Crim. Ct. 1995). Given these well-established legal principles, the People were required to file the accusatory instrument charging DW AI within one year of the alleged commission of the offense in August 2012. Since they did not, the charge should have been dismissed. Moreover, even if the prosecutor's information were timely, it would still have been jurisdictionally defective. As noted above, it is well-settled that a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. See People v. Jackson, 18 N.Y.3d 738, 741 (2012); People v. Dreyden, 15 N.Y.3d 100, 103 (2010). For this reason, the issue may be raised at any time, even post-verdict. See CPL § 440.10(1)(a). A prosecutor's information may only be used in certain statutorily-enumerated circumstances. See CPL §§ 100.10(3); 100.50. These strictly limited circumstances do not include superseding a simplified traffic information, as was done in this case. See Baron, 107 Misc.2d at 60-61. 7 The Uniform Traffic Tickets with which Appellant was originally charged are considered simplified traffic informations under CPL § 100.10(2)(a). People v. Key, 45 N.Y.2d 111, 115 (1978). As courts have repeatedly held, a simplified traffic information is not the type of accusatory instrument that can be superseded by a prosecutor's information. See CPL § 100.50; People v. Williams, 32 Misc.3d 135(A), 936 N.Y.S.2d 61 (App. Term 2011); People v. Greco, 12 Misc.3d 83, 84 (App. Term 2006); People v. Baron, 107 Misc.2d 59, 61 (App. Term 1980); People v. Finch, 19 Misc.3d 840, 843 (Dist. Ct. 2008); People v. Flood, 25 Misc.3d 843, 845 (Dist. Ct. 2006); People v. Green, 192 Misc.2d 296 (Dist. Ct. 2002); People v. Quarles, 168 Misc.2d 638, 646 (Rochester City Ct. 1996). As such, in this case, the People's attempt to supersede the original simplified traffic informations by filing a prosecutor's information charging the defendant with DWAI was impermissible. Accordingly, the prosecutor's information filed with the Court on August 2, 2013 was a nullity and should therefore have been dismissed. Since the accusatory instrument upon which Appellant was tried and convicted was a nullity, the conviction must be vacated. III. THE TRIAL COURT ERRED ABUSED ITS DISCRETION BY REFUSING TO SANCTION THE PEOPLE FOR DISCOVERY VIOLATIONS On or about March 29, 2013, over six months prior to the commencement of Appellant's trial, defense counsel requested a copy of the video recording of Appellant's breath test. A. 44; 48. That video was never turned over to counsel. A. 44. At trial, defense counsel raised this issue, and the People acknowledged that "in March of this year ... there was a request made for the breath testing room video," but that they had been advised by the Schenectady Police Department that the video had been destroyed automatically within "[t]hree to five months" after Appellant's arrest. A. 45. However, as defense counsel noted, by motion dated December 11, 2012, the defense had requested "any videos that are currently available and those that become 8 available." A. 46. Despite this timely request, the trial court held that the video was not Rosario material [see People v. Rosario, 9 N.Y.2d 286 (1961)], and that there was "no basis to conclude that it's Brady [see Brady v. Maryland, 373 U.S. 83 (1963)] and without a specific request or at least some sort of inquiry ... [i]t doesn't appear that there's any facts to conclude that the item was destroyed following a specific request or in bad faith." A. 47. The Court therefore declined to "make a finding of a discovery violation and/or sanction." A. 48. Appellant respectfully submits that this was an abuse of discretion. "It is now axiomatic that where the People are in possession of discoverable material, they are duty bound to preserve such evidence and, in the event such evidence is lost or destroyed, sanctions will be imposed." People v. Torres, 190 A.D.2d 52, 54 (3d Dept. 1993) (emphasis added) (citation omitted). See also People v. Bramble, 207 A.D.2d 407, 408 (2d Dept. 1994) ("The People have an obligation to preserve evidence until a request for disclosure is made.") (emphasis added). As this Court has held, "[a] necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made. Any other rule would facilitate evasion of the disclosure requirements. Accordingly, where discoverable evidence gathered by the prosecution or its agent is lost, the People have a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss. Otherwise, sanctions will be imposed." People v. Kelly, 62 N.Y.2d 516, 520 (1984) (emphasis added) (citations omitted). "Depending upon the degree of prosecutorial fault and the resulting prejudice to the defendant, the court must then impose an appropriate sanction-preclusion of the witness' testimony or an adverse inference charge, for example." People v. Banch, 80 N.Y.2d 610, 616 (1992) (emphasis added). Where, as here, the People fail to exercise due care in preserving discoverable material 9 and the defendant is prejudiced by that failure, it is an abuse of discretion for the Court to decline to impose a sanction. People v. Wallace, 76 N.Y.2d 953, 955 (1990). Contrary to the trial court's assertions, this standard applies whether the People's failure to preserve evidence was intentional or negligent, or whether the prosecutor acted in good or bad faith. People v. Sweeney, 18 Misc.3d 1134(A) at *4 (Albany City Court 2008). See also Brady, 373 U.S. at 87; Torres, 190 A.D.2d at 55-56. The People's failure to preserve evidence is particularly egregious where, as here, the defense has made a specific request for evidence to be preserved and turned over. Bramble, 207 A.D.2d at 408. Cf United States v. Agurs, 427 U.S. 97, 106 (1976) ("When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable."); People v. Vilardi, 76 N.Y.2d 67, 77 (1990) ("Where the defense itself has provided specific notice of its interest in particular material, heightened rather than lessened prosecutorial care is appropriate."). "There is no question that the video recording of the defendant is discoverable." Sweeney, 18 Misc. 3d 1134(A) at *3 (citing People v. Marr, 177 A.D.2d 964 (4th Dept. 1991); People v. Karns, 130 Misc.2d 247 (City Ct. 1985); CPL §§ 240.20(1)(d), (g) and (h)). Thus, the People's failure to preserve the video and turn it over to defense counsel may not be excused on ground that it would have been of limited or of no use to the defense or that it was totally consistent with the police officers' prospective trial testimony. People v. Consolazio, 40 N.Y.2d 446, 454 (1976). Moreover, Appellant was in fact prejudiced by the People's failure to preserve the video, since it is likely that the video would have clarified the circumstances surrounding the stop and arrest of Defendant. Bramble, 207 A.D.2d at 408. See also People v. Cortez, 149 Misc. 2d 886, 896 (Crim. Ct. 1990) ("By destroying an official contemporaneous record which might have 10 differed from the officer's account at the hearing, the police have prevented defendant from meaningfully challenging the legality of the stop and arrest."). Although the nature of a sanction for the People's failure to preserve evidence is within the discretion of the trial court, the Court does not possess discretion to not impose a sanction. Banch, 80 N.Y.2d at 616; Wallace, 76 N.Y.2d at 955; Torres, 190 A.D.2d at 54. Where, as here, the defense has made a specific, timely request for evidence, and the People nevertheless fail to preserve that evidence, preclusion of the officer's testimony is the appropriate sanction. Bramble, 207 A.D.2d at 408. Significantly, defense counsel's request was not limited to those tapes the People planned to introduce at trial. Compare People v. Brockway, 277 A.D.2d 482, 486 (3d Dept. 2000). By failing to impose any sanction at all, the trial court clearly abused its discretion, and reversal is warranted. Bauch, 80 N.Y.2d at 616; Wallace, 76 N.Y.2d at 955; Torres, 190 A.D.2d at 54. IV. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE REGARDING THE HORIZONTAL GAZE NYSTAGMUS (HGN) TEST \-VITHOUT FIRST ESTABLISHING ITS SCIENTIFIC VALIDITY At Appellant's trial, the People were permitted to introduce evidence of Appellant's alleged performance on the Horizontal Gaze Nystagmus ("HGN") test, despite defense counsel's protestations that it "is a very unreliable test, it's very subjective." A. 50-51. See A. 19-26. This evidence was especially prejudicial to Appellant, as the HGN test was the only one out of three administered which he was alleged to have failed. A. 33-38. Appellant respectfully submits that "that [City] Court acted improperly in allowing testimony at trial concerning the field sobriety test known as 'Horizontal Gaze Nystagmus' without a proper foundation as to its scientific acceptance or reliability." People v. Erickson, 156 A.D.2d 760, 762-763 (3d Dept. 1989). Accord 11 People v. Heidelmark, 214 A.D.2d 767, 769 (3d Dept. 1995). See generally People v. Barber, 43 Misc. 3d 1225(A) (Town Ct. 2011). This Court "has often endorsed and applied the well-recognized rule of Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]." People v. Wernick, 89 N.Y.2d 111, 115 (1996). See also Giordano v. Market America, Inc., 15 N.Y.3d 590, 601 (2010) (noting that the Frye test "is familiar to New York lawyers and judges ... in making 'general acceptance' the test for admitting expert testimony about scientific principles or discoveries.") (citation omitted). "[T]he ~ test asks 'whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.' ... The focus [then moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial." Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 446-447 (2006) (internal quotation marks and citations omitted). See also People v. Angelo, 88 N.Y.2d 217, 222-223 (1996) ("[T]he customary admissibility test for expert scientific evidence ... looks to general acceptance of the procedures and methodology as reliable within the scientific community."). As an initial matter, "[u]nlike other field sobriety tests such as the walk-and-turn test and the one-leg stand, which simply test a person's motor coordination and ability to think and speak clearly, the HGN test deals with involuntary physiological movements of the eye and how such movements may be affected by the consumption of alcohol and/or drugs. As such, the HGN test if considered 'scientific' in nature, placing it within the ambit of Frye." People v. Barber, 43 Misc. 3d 1225(A) (Town Ct. 2011) (citations omitted) Furthermore, the Third Department has noted that "the courts of our State have not conclusively determined that HGN is generally 12 acceptable as reliable,"1 and has held that a trial Court errs "in allowing testimony concerning the HGN field sobriety test without a proper foundation as to its scientific acceptance or reliability." Heidelmark, 214 A.D.2d at 769 (citation omitted). Moreover, even where the Court "take[s] judicial notice of the reliability of the HGN procedure," it must still conduct "a foundational inquiry into whether the accepted techniques were actually employed in this case and the tester's qualifications." People v. Gallup, 302 A.D.2d 681, 684 (3d Dept. 2003) (citing People v. Wesley, 83 N.Y.2d 417, 436 (1994) (Kaye, C.J. concurring)). See also Cornell v. 360 W. 51st St. Realtv. LLC, 22 N.Y.3d 762, 780-781 (2014) ("Frye focuses on principles and methodology, but these are not entirely distinct from one another. Thus, even though the expert is using reliable principles and methods and is extrapolating from reliable data, a court may exclude the expert's opinion if there is simply too great an analytical gap between the data and the opinion proffered.") (internal quotation marks and citations omitted). People v. LeGrand, 8 N.Y.3d 449, 457-458 (2007). "This foundational inquiry also goes to admissibility of the evidence, not simply its weight." Wesley, 83 N.Y.2d at 436 (citing People v. Middleton, 54 N.Y.2d 42, 45,50 (1981)). Neither the Court nor the People made any effort in this case to establish the scientific validity or reliability of the HGN test generally, nor did the Court conduct any sort of inquiry into the way in which the test was actually performed. Instead, the arresting officer simply testified that nystagmus "[i]ndicates signs of intoxication," and proceeded to describe how he performed the test on Appellant. A. 19-24. Given the total lack of scrutiny given to this crucial- l With good reason. See Barber, 43 Misc.3d 1225(A) n.1 (''The initial 1977 National Highway Traffic Safety Administration (NHTSA) field sobriety test studies have been peer reviewed and attempts to duplicate the study results have been unsuccessful. See 'Field Sobriety Tests: Are they designed for failure?' by Cole S. Nowaczyk (1994) Perceptual and Motor Skills Vol. 79 Part I pp 99-104 and 'The Horizontal Gaze Nystagmus Test: Fraudulent Science in the American Courts' by J.L. Booker (2004) Science & Justice Vol. 41 pp 133-139; later studies by the NHTSA in 1981 and 1983 found the HGN TEST to be only seventy-seven percent accurate when not administered with !he walk and turn (WAT) and the one-leg stand (OLS) tests. Even then, the researchers found, when all three test (HGN, WAT and OLS) were combined, an eighty-three percent accuracy rate was established."). 13 indeed, determinative-scientific evidence, it should not have been admitted, and Appellant's conviction must be reversed. V. THE EVIDENCE PRESENTED AT TRIAL WAS LEGALLY INSUFFICIENT At the close of the People's proof, defense counsel moved for a trial order of dismissal pursuant to CPL § 290.10, "based on the People's failure to, and inability to prove a prima facie [case] with regards to each and every element with regards to all charges [against] Mr. Novak." A. 49. With respect to the most serious charge against defendant, Driving While Ability Impaired, in violation of Vehicle and Traffic Law § 1192(1), defense counsel specifically argued that there was insufficient evidence that Appellant was "impaired by the use of alcohol": Namely, based on the observations of Officer Gonzalez with regards to the impaired speech, there was testimony presented both on direct and cross, that Officer Gonzalez did indicate that Brian Novak understood all his questions and answered appropriately. Further, with regard to the impaired motor coordination which the officer noted on his sworn deposition, DWI bill of particulars, it's indicating there that he did have impaired motor coordination, however, with regards to the standardize[ d] tests, the walk and turn test and the one leg stand test, that Mr. Novak did pass two out of the three tests. However, with regard to those physical tests, he did pass both tests . . . . [F]urther, with regards to the driving while ability impaired by alcohol charge, with regards to any impairment, based on the observations made by Officer Gonzalez along with the field sobriety test, the only other test that was noted on the supporting deposition DWI bill of particulars, was the horizontal gaze nystagmus and I would just note for the record that although there [were] six clues that [Appellant is] alleged to have failed, this is a very unreliable test, it's very subjective. A. 50-51. The Court, however, "reviewing the evidence in the light most favorable to the People, which is what the Court must do," denied defense counsel's motion. A. 52-53. Immediately 14 thereafter, the defense rested, declining to put on a case. A. 53. Thus, this issue was properly preserved for appellate review. See CPL § 470.05(2); People v. Hines, 97 N.Y.2d 56, 61 (2001); People v. Lee, 80 A.D.3d 877, 878 n.1 (3d Dept. 2011); People v. Battease, 74 A.D.3d 1571, 1573 (3d Dept. 2010). The standard for reviewing the legal sufficiency of evidence in a criminal case is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Contes, 60 N.Y.2d 620, 621 (1983). An appellate court's reversal for insufficiency of the evidence is in effect a determination that the People's case against Appellant was so lacking that the trial court should have entered a judgment of acquittal. McDaniel v. Brown, 130 S. Ct. 665, 672 (2010). For the reasons that follow, such a determination is called for in this case. "To establish a prima facie case [for DW AI], the People were required to show that defendant operated a motor vehicle while his ability to do so was impaired by the consumption of alcohol." People v. McDonald, 27 A.D.3d 949 (3d Dept. 2006) (citations omitted). "[T]he question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." People v. Cruz, 48 N.Y.2d 419, 427 (1979). Defendant respectfully submits that the evidence presented by the People in this case was not legally sufficient to prove the elements of this charge, and that his conviction was also against the weight of the evidence. See People v. Hagmann, 175 A.D .2d 502, 505 (3d Dept. 1991). At trial, Officer Samuel Gonzalez testified that he was stopped at a red light at the intersection of Albany and Veeder Streets in the City of Schenectady when he observed a 15 motorcycle make a right turn onto Veeder. A. 9-10. Officer Gonzalez further testified that he couldn't recall whether the motorcycle came to a stop at the intersection, or even if the light was red or green.2 A. 11. After watching the motorcycle turn onto Veeder, Officer Gonzalez "tried to catch up to him ... and then once [he] got up to him [he] just kept following him until [they] got to Union [Street]." A. 12. Finally, the Officer testified that he couldn't recall whether he still had a visual of Appellant before he made the turn and began to follow him. A. 28-29. He estimated that the motorcyclist was traveling approximately 45 miles per hour in a 30 mile per hour zone. A. 13. After the motorcycle came to a stop at a red light at the intersection of Nott Terrace and Eastern Avenue, Officer Gonzalez pulled up behind him A. 13. Once the light changed and both vehicles proceeded through the intersection, Officer Gonzalez activated his emergency lights and pulled Appellant over. A. 14. His suspicions were aroused by the fact that Appellant took "like a wide, a wide stance just to kind of keep his balance on the bike." A. 15. Officer Gonzalez testified that he had no trouble understanding Appellant during their conversation, and that Appellant was not mumbling or otherwise having trouble speaking. A. 30. Upon questioning by the Officer, Appellant stated that he had had one beer at a friend's house approximately one hour before. A. 15-17. Appellant provided all of the documentation requested by Officer Gonzalez, and otherwise complied fully with his commands. A. 31. While this questioning took place, Officer Gonzalez did not smell any type of alcohol. A. 31. Only when Appellant removed his helmet and Officer Gonzalez moved closer to him was the Officer able to detect any odor of an alcoholic beverage. A. 17-18. Officer Gonzalez then instructed Appellant to leave his vehicle and walk to the sidewalk, across three lanes of traffic. 2 In fact, Officer Gonzalez later testified that he "couldn't see, obviously, from where [he] was, ... [ s ]o [he] was unaware" whether the light was red or green. A 27. 16 A. 32. Appellant did so without falling or stumbling. Id. Once he had arrived at the sidewalk, Officer Gonzalez began administering Field Sobriety Tests. Id. The first test administered by Officer Gonzalez was the Horizontal Gaze Nystagmus ("HGN") test, which he conceded was "not a hundred percent reliable." A. 33. He noted that Appellant was able to follow the stimulus during this test. Id. Next, Officer Gonzalez had Appellant perform the "walk and turn test," which he passed. A. 34. Finally, Appellant was asked to perform the "one-leg stand test." A. 36. He did not sway while performing the test, or in any way demonstrate a lack of balance. A. 36-37. Officer Gonzalez also passed Appellant on this test, taking into account his disability resulting from a prior car accident. A. 36. Although Appellant had passed two out of the tree tests he was asked to perform, Officer Gonzalez declined to perform any of a number of other available Field Sobriety Tests. A. 38. Following the administration of the Field Sobriety Tests, Appellant was transported to the police station for the administration of a breath test, which Appellant repeatedly indicated he was willing to take. A. 39. Following his arrival at the station, Appellant repeatedly attempted to provide a sample for breath testing, but was unable to do so. A. 41-42. The Officer conducting the test did not ask Appellant whether he had any issues with asthma or shortness of breath that may have affected his ability to give a sample. A. 43. Appellant respectfully submits that the above evidence, even when considered in the light most favorable to the People, does not establish his guilt of Driving While Ability Impaired beyond a reasonable doubt. As defense counsel argued in her motion for a trial order of dismissal, any evidence of Appellant's alleged intoxication or impairment is purely speculative, and is not sufficiently supported by the evidence. A. 50-52. Simply put, "[t]here were no observations by the officer[ s J establishing that the defendant was incapable of employing the 17 physical and mental abilities one is expected to possess when operating a vehicle." People v. Wenz, 12 Misc.3d 134(A), 820 N.Y.S.2d 845, *2 (App. Term 2006) (citations omitted). Given the People's failure to present such evidence, Appellant's convictions must be reversed. CONCLUSION Appellant respectfully submits that he was tried and convicted based upon a jurisdictionally defective accusatory instrument and on less than legally sufficient evidence. During the course of this trial, the Court allowed the People to introduce untested scientific evidence and imposed no sanction for the People's failure to preserve and disclose crucial evidence. Finally, this verdict was thereafter affirmed by the very same judge who had rendered it in the first place. For all of the above reasons, this Court should reverse the holding of the Schenectady County Court and reverse Appellant's conviction. Dated: July 11, 2016 Albany, New York 18 Respectfully Submitted, If/~ Danik~e~ ~ , Esq. Attorney for Appe ant 668 Madison Avenue Albany, New York 12208