The People, Respondent,v.Brian Novak, Appellant.BriefN.Y.September 6, 2017APL-2016-00109 Time Requested: 10 min. To Be Argued By: Tracey A. Brunecz, Esq. STATEOFNEWYORK COURT OF APPEALS *************************************************************** THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, -against- BRIAN NOVAK, Defendant/ Appellant. **************************************************************** RESPONDENT'S BRIEF SCHENECTADY COUNTY NO.: 2013-2628 **************************************************************** Respectfully submitted, ROBERT M. CARNEY District Attorney By: TRACEY A. BRUNECZ Assistant District Attorney 612 State Street Schenectady, New York 12305 Tel: (518)388-4364 Fax: (518)388-4795 EmaiJ:Tracey .Brunecz@scbenectadycounty .com STATEMENT PURSUANT TO RULE 500.13(a) Pursuant to the Court of Appeals Rule 500.13(a), there is no related litigation currently pending with respect to the within appeal. TABLE OF CONTENTS TABLE OF AUTHORITIES ........ .................................. ................................. iii QUESTIONS PRESENTED ............................................................................ v PRELIMINARY/PROCEDURAL STATEMENT .......................................... 1 ARGUMENT .... ............................ ................................................................... 4 POINT I ............................... .............. ................ .................. ............. ............ .... 4 COUNTY COURT DID NOT ERR IN REFUSING TO RECUSE ITSELF FROM THE APPEAL OF ITS OWN VERDICT. POINT II .................................................................................................... .. .... 6 APPELLANT WAS PROPERLY CHARGED AND CONVICTED UNDER A VALID PROSECUTOR'S INFORMATION A. Prosecutor's Information was not Jurisdictionally Defective .... 6 B. Prosecutor's Information was Filed Timely ................................. 9 POINT III ...................... .. ........... ........................... ........................................... 11 THERE WAS NO ABUSE OF DISCRETION IN REFUSING TO SANCTION THE PEOPLE FOR LOSS OF A VIDEO. A. Rules of Discovery Analysis .................... ....................................... 13 B. Rosario Rule Analysis ...................... ........ ....................................... 18 C. Brady Rule Analysis ....................................................................... 22 POINT IV .......................... ...... ................... .... ..................... ... ........................ .. 24 COUNTY COURT CORRECTLY AFFIRMED THE TRIAL COURT'S ADMISSION OF EVIDENCE OF HORIZONTAL GAZE NYSTAGMUS BECAUSE THE PEOPLE LAID A PROPER FOUNDATION TO ADMIT THE EVIDENCE. -1- POIN1~ V ......... .. .............. ........... .. ..... ............... ................... ....... ...................... 28 THE EVIDENCE PRESENTED AT TRIAL WAS LEGALLY SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS IMPAIRED BY THE CONSUMPTION OF ALCOHOL. CONCLUSION ....................................................................... ............ .......... ... 31 -11- TABLE OF AUTHORITES Cases: U.S. Supreme Court: U.S. v. Agurs, 427 U.S. 97 (1976) ... ................................................................ 22 U.S. v. Bagley, 473 U.S. 667 (1985) ...................................... ... ................. ..... 22 New York Court of Appeals: People v Acosta, 80 N.Y.2d 665 (1993) .......................................................... 29 People v. Casey, 95 N.Y.2d 354 (2000) ................... ................................. ...... 8 People v. Cruz, 48 N.Y.2d 419,427 ( 1979) .................................................... 28 People v. Danielson, 9 N.Y.3d 342 (2007) ...................................................... 29 People v. Fernandez, 20 N.Y.3d 44 (2012) ..................................................... 8 People v. Kelly, 62 N.Y.2d 516 (1984) ......... .... .............................................. 14,15 People v. Martinez, 22 N.Y.3d 551 (20 14) ...................................................... 19 People v. Smith, 63 NY2d 41 (1985) ............................................................... 22,23 People v. Valardi, 76 NY2d 67 (1990) ............................................................ 22 People v. Wesley, 83 N.Y.2d 417 (1994) ........................................................ 24 New York AppeUate Division: People v. Crandall, 287 A.D.2d 881 (Third Dep't 2001) ................................ 29 People v. Gallup, 302 A.D.2d 681 (Third Dep't 2003) ................................... 24 People v. Grier, 273 A.D.2d 403, 405 (2nd Dep't 2000) .................................. 4 People v. Hammond, 35 A.D.3d 905 (Third Dep't 2006) ............................... 24,25,26 People v. Julius, 93 A.D.3d 1296 (Fourth Dep't 2012) ............... .................... 26 People v. Kinred, 276 A.D.2d 927 (Third Dep't 2000) ................................... 18 People v. Lizzo, 178 A.D.2d 741 (Third Dep't 1991 ) ..................................... 29 People v. Tetrault, 53 A.D.3d 558 (Second Dep't 2008) ................................ 25 -lll- Other New York State Courts: In reA., 65 Misc. 2d 1034 (Fam. Ct. 1971) ..... ....... ..................................... ... 4,5 People v. Baron, 107 Misc.2d 59 (Sup. Ct. App. Term, Second Dep't 1980) 8 People v. Green, 192 Misc.2d 296 (Dist. Ct. 2002) ........................................ 8 Statutes and Other Authorities: CPL § 1.20-6 ....................... ............. ....................... .... ... .................... ... ....... ..... 7 CPL §1 .20-17 ...................... .... ........................... .......................................... ... . 9 CPL § 1.20-26 ........................ ....................................................................... .... 9 CPL §30.10(2)(d) ........................................................................................... .. 1,9 CPL §30.10(4)(b) ............................................................................................. 9 CPL §30.30(5)(b) .............................................................................................. 9 CPL § 100.10 .......................... ........... ... ............................................................ 7 CPL § 1 00.1 0-1 .. ........................ ............................... ........................ .. .............. 6 CPL§l00.10-2(a) .................................................................... ........................ 6 CPL §100.15 ................ .................................................................... ....... ......... 7,15 CPL § 100.35 ................................................................................. ................... 7 CPL § 100.50 ............ .................................................................................... .... 7 CPL §240.20 ............................................................ ........................................ 13 CPL §240.45 .................................................................................................... 18 CPL §240.75 ................................................................................................. ... 18 CPL §255.20-1 ..................... .................................... ........................................ 15 CPL §255.20-3 ................................................................................................. 15 CPL §710.30 ....................................... ............................................................. ! N .Y. CLS Jud § 14 ........................................................................................... 4 VTL § 1192( 1) . . . .. .. . . .. . .. . .. .. .. . .. .. .. . . .. . .. .. .. .. .. .. . .. . .. . .. .. .. .. . . . .. .. .. . .. . .. .. .. . .. . .. .. .. . .. .. . . . . 1, 1 0 VTL § 1192(3) .................................. .... ... ........................ ............................. 1,10,28 -lV- QUESTIONS PRESENTED 1. Did County Court err in deciding appellant's appeal where there same judge decided appellant's bench trial? 2. Was appellant tried and convicted on a proper accusatory instrument? 3. Was it within the trial courts discretion to refuse to impose any sanction for loss of Rosario material? 4. Did the trial court properly admit evidence regarding Horizontal Gaze Nystagmus where evidence was deemed reliable and generally accepted within the relevant scientific community? 5. Was the evidence presented at trial legally sufficient to find the appellant impaired by the use of alcohol beyond a reasonable doubt? -v- PRELIMINARY AND PROCEDURAL STATEMENT On or about August 8, 2012, Appellant/Defendant was arraigned on Uniform Traffic Tickets (UTI's) charging him with Driving While Intoxicated (DWI) in violation of New York State's Vehicle and Traffic Law (VTL) § 1192-3 together with a Supp01ting Deposition/Bill of Particulars and CPL §71 0.30 notice [RA 6-8] 1 and other traffic infractions that occurred on or about July 17, 2012. [RA 11 -17)].2 Subsequent to defendant's arraignment, the People provided voluntary discovery on September 24, 2012 [RA 9] and the defense filed an omnibus motion on December 11, 2012 [RA 11 -17]. On August 2, 2013, the People filed a superseding prosecutor's information accusing defendant with the lesser charge of Driving While Ability Impaired (DWAl) in violation of VTL § 1192-1 [RA 18] and at that time counsel questioned the timel iness of the filing of the prosecutor's information and a motions schedule was set. [RA 25-33]. On October 1, 2013, defense counsel filed a motion to dismiss the prosecutor's information upon the ground that it was untimely filed pursuant to Criminal Procedure Law (CPL) §30.10(2)(d). [RA 19-24]. On October 2, 2013, 1 RA =Respondent's Appendix 2 This information is obtained from statements made by defense counsel in the attorney's affirmation in support of their omnibus motion filed on December 11, 2012, instead of from the transcript of defendant's arraignment. For reasons unknown to the People the arraignment proceedings conducted on August 8, 2012, were never transcribed. 1 just prior to the commencement of the nonjury trial on the prosecutor's information and the other UTI's, the court addressed and denied defendant's motion. [RA 34- 40]. Beginning October 2, 2013, and concluding on December 9, 2013, a bench trial was held on the charge of Driving While Ability Impaired and the other related traffic infractions, with the Honorable Matthew J. Sypniewski, Schenectady City Court Judge, presiding. At the conclusion of the trial, based on the evidence presented, defendant was convicted of all charges upon which he was tried. [RA 85]. Defendant filed a notice of appeal on or about December 17, 2013, appealing his conviction to the Schenectady County Court. [RA 1]. On or about January 23, 2015, The Honorable Matthew J. Sypniewski, Schenectady County Court Judge issued a written decision and order affirming the defendant's conviction. [RA 2-4]. On or about May 16, 20 16, through Associate Judge Jenny Rivera, defendant was granted leave to appeal to the Court of Appeals the decision and order of the Schenectady County Court affirming his conviction in the City Court of Schenectady. [RA 5]. County Court did not err in refusing to recuse itself from this appeal because the judge was not mandatorily required to do so and there is insufficient evidence 2 that he did not have the competence to evaluate the evidence presented on the issues in accordance with the applicable rules. Additionally, defendant was charged and convicted under a valid prosecutor's information that properly superseded the traffic information and the supporting deposition and bill of particulars. City Court did not err in refusing to impose any sanctions upon the People for the loss of a video recording because there was no discovery, Rosario or Brady violation that caused prejudice to the defendant. The court properly admitted the results of the HGN test because it has been deemed reliable and has gained "general acceptance" in the relevant field of optometry, and because a proper foundation for the admission of the evidence was laid. Lastly, the People provided at trial legally sufficient evidence beyond a reasonable doubt to prove that defendant was impaired by the use of alcohol while operating a motor vehicle. Accordingly, this Court should affirm the order of the Schenectady County Court and uphold the defendant's conviction. 3 ARGUMENT POINT I COUNTY COURT DID NOT ERR IN REFUSING TO RECUSE ITSELF FROM THE APPEAL OF ITS OWN VERDICT According to N.Y. CLS Jud § 14, "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy with in the sixth degree." Additionally, "the customary ground for disqualification of a judge is personal bias in the sense of possible interest in the outcome of a case as a private individual rather than a judge." In reA., 65 Misc. 2d 1034, 1036 (Fam. Ct. 1971). It has been noted that "a Judge has the competence and intellectual integrity to evaluate the evidence presented on the issues before him in accordance with the applicable rules, regardless of preceding judicial contact with the issues or parties." ld. In absence of legal disqualification for recusal, a trial judge based on their own discretion is the sole arbiter of whether recusal is warranted by the appearance of partiality. People v. Grier, 273 A.D.2d 403, 405 (2nd Dep't 2000). Appellant contends that because the Honorable Matthew J. Sypniewski presided over appellant's bench trial, it was an abuse of discretion to decide appellant's appeal. 4 Under N.Y. CLS Jud § 14, there was no legal ground requiring recusal of the judge from deciding defendant's appeal. In the absence of any legal grounds for recusal, it was in the d iscretion of the judge whether or not to recuse himself based on the appearance of partiality. Here, there has been no showing that Judge Sypniewski had an interest in the outcome the appeal as a private individual rather than as a judge. Nor has then been any allegation that Judge Sypniewski as an elected judicial official did not have the competence and intellectual integrity to objectively evaluate the issues before him on appeal and render a decision regardless of the prior judicial contact with the appellant. See, In re A., supra. In this regard, a judge presiding over defendant's appeal is not unlike a judge presiding over a CPL 440 motion filed in a case where the same judge was the trier of fact. Judges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested. A reasonable comparison could be made that Honorable Matthew J. Sypniewski acting as the trier of fact in appellant's bench trial and then affirming his own decision on appeal is almost identical practice to a judge denying a post-conviction 440 motion based on his own previous ruling. Therefore, the Honorable Matthew J. Sypniewski did not err in refusing to recuse himself from the appeal of his own verdict. Moreover, if the Court 5 determines there was error, the proper remedy would be to remit the matter for appellate review before another judge or court. POINT II APPELLANT WAS PROPERLY CHARGED AND CONVICTED UNDER A VALID AND TIMELY FILED PROSECUTOR'S INFORMATION A. Prosecutor's Information was not Jurisdictionally Defective A "simpl ified traffic information" is a written accusation by a police officer or other public servant, filed with the local criminal court, charging a person with the commission of one or more traffic infractions or traffic related misdemeanors, and designates the offense charged but contains no factual allegations of an evidentiary nature supporting the charge. A simplified traffic information may commence the criminal action and under certain circumstances may also serve as the basis for the prosecution of the named charges. CPL § 100.1 0-2(a). An " information" is a written accusation by a person filed in local criminal court, charging a person with the commission of one or more offenses, none of which is a felony and it may serve the basis for both the commencement of the criminal action and prosecution thereon. CPL § l 00.10-1. An information must specify the name of the court in which it is filed, the title of the action, be subscribed by a complainant having knowledge of the commission of the offense, 6 and include the non-hearsay factual allegations supporting each element of the charge. CPL § 100.15. A "prosecutor's information" must contain the name of the local court in which it is filed, subscribed by the district attorney by whom it is filed and in all other respects must conform with the requirements prescribed for an indictment. It may also serve as the basis for the commencement of the criminal action and the prosecution of the offenses named therein. CPL § 1.20-6; CPL § 100.1 0; CPL § 100.35. CPL § 100.50 delineates the procedure for superseding informations, prosecutor informations and misdemeanor complaints. The plain language of the statute uses the specific terms "information", "prosecutor's information" and "misdemeanor complaint" but does not utilize the term "simplified information" or "simplified traffic information". Pursuant to CPL § 100.50, a prosecutor's information may replace or supersede an information or another prosecutor's information. Relying on the language of the statute and on decisions rising out of Westchester and Nassau Counties which held a simplified information is not interchangeable with an information, appellant contends that a simplified information may not be superseded by a prosecutor information. People v. Baron, 7 107 Misc.2d 59, 61 (Sup. Ct., Appellate Term, Second Department 1980); People v. Green, 192 Misc.2d 296 (Dist. Ct. 2002). However, the Court has held that the title of a document does not determine whether an accusatory instrument is sufficient to proceed with a prosecution. In People v. Casey, 95 N.Y.2d 354 (2000) the Court held that," so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." ld. at 360. Moreover, the Cou11 has indicated "it would be illogical, then, to find that the title of the form governs over its substance." People v. Fernandez, 20 N.Y.3d 44, 50 (2012). Therefore, the substance of the form rather than its denomination should be controlling. ld. In the present case, with respect to the OWl charge, appellant was served at his arraignment with a simplified information, and with the relating supporting deposition and bill of particulars. [RA 11-17]. In looking to the form and content requirements of CPL § I 00.15, the substance of the simplified information served to appellant on August 8, 2012, when taken as a whole with the supporting deposition, meets a] I of the requirements necessary for a valid information. [RA 6- 8]. Thus, when the ticket charging OWl was superseded with the prosecutor's information charging DWAI, the prosecutor's information was in essence 8 replacing an information. Accordingly, in this matter the prosecutor's information was jurisdictionally valid. B. The Prosecutor's Information Was Filed Timely Appellant's contention that the prosecutor's information was time barred is without merit. CPL § 30.1 0(2)(d) requires a prosecution for a petty offense to be commenced within one year after the commission thereof. However, tolling provisions provide: when a prosecution for an offense is lawfully commenced within the prescribed period of limitation therefore, and when an accusatory instrument upon which such prosecution is based is subsequently dismissed by an authorized court under directions or circumstances permitting the lodging of another charge for the same offense or an offense based on the same conduct, the period extending from the commencement of the thus defeated prosecution to the dismissal of the accusatory instrument does not constitute a part of the period of limitation applicable to commencement of prosecution by a new charge. Criminal Procedure Law§ 30.10(4)(b). In order for the tolling provision to be applicable, the criminal action must be lawfully commenced. A criminal action commences with the filing of the accusatory instrument with the court. CPL § 1.20-17. An appearance ticket is a written notice requiring a person to appear in a criminal court at a later date to answer charges that will be filed against him. CPL § 1.20-26. A criminal action based on an appearance ticket does not commence until the defendant first appears in court in response to the ticket. CPL §30.30-S(b ). 9 On July 17, 2012, defendant was issued a simplified traffic ticket charging him with DWI in violation of VTL § 1192-3 and was directed to appear before the Schenectady City Court on August 8, 2012, for arraignment thereon. [RA 6]. The ticket, therefore, was not only a "simplified information" it was also an "appearance ticket". On August 8, 2012, the defendant appeared with counsel and he and his attorney were with served with copies of the previously issued traffic tickets and the supporting deposition/bill of particulars in support of the charges. [RA 11-1 7]. The criminal action was lawfully commenced at this time. At this point only 22 days had passed since the commission of the DWI and the commencement of the action. On August 2, 2013, the People filed a prosecutor's information charging the defendant with Driving While Ability Impaired in violation of Vehicle and Traffic Law§ 1192(1). At this time, the original charge ofDriving While Intoxicated was superseded and the charge dismissed. [RA 27; RA 23 ~12; RA 35-36]. Because the prosecutor's information arose from the same course of conduct, the time period from the issuance of the original information to the issuance of the prosecutor's information on August 2, 2013 was sufficiently tolled and the filing of the accusatory instrument was well within the one year statute of limitations for petty offenses. 10 POINT III THERE WAS NO ABUSE OF DISCRETION IN REFUSING TO SANCTION THE PEOPLE FOR THE LOSS OF THE VIDEO RECORDING OF THE DATA MASTER ROOM Defendant claims that the prosecution failed to tum over the video of the defendant undergoing the breathalyzer exam in the data master room (or breath test room) that the defense had requested. Because the video had been destroyed by the time of trial, defendant asserts sanctions should have been imposed on the People. Defendant, however, does not specifically articulate whether he was entitled to the material under the rules of discovery, the rules regarding Rosario material or because the video contained Brady material. At best, the defendant states that he was prejudiced by the loss of the video because it was "likely that the video would have clarified the circumstances surrounding the stop and arrest of Defendant." [Appellant's Brief at I 0]. The analysis of whether or not there was a violation and whether or not sanctions should have been imposed depends on which rule or rules are applicable. In the instant case, the parties entered into "voluntary disclosure" and the People provided the defense with discoverable material in their possession on September 24, 2012 and it was noted that an in-car video would be provided upon its receipt. [RA 9]. In his omnibus motion dated December 11 , 2012, appellant made a specific request for CD's or DVD's, "for the in-car audio/video with regard 11 to the aforesaid incident." [RA 15 ~14]. In the next paragraph of his motion, the defendant further requested that the defense be allowed to copy "said videos that are currently available and those that become available." [RA 15 ~15]. At trial on this matter the People did not introduce in evidence the video of the breath test room. However, during cross-examination of the officer conducting the breathalyzer test, defense counsel argued that they were entitled to a copy of the video because they had made a specific request for the breath test video and had not received it. [RA 78, 81]. At no time during the trial did defense counsel indicate under what theory they were entitled to the video or in what manner they were prejudiced by not having a copy of the video. In response, the prosecutor indicated to the court that he was not sure of whether or not disclosure of the breath test room video was part of the "voluntary disclosure" agreement between the parties and that a specific request was made in defendant's omnibus motion for the patrol officer's in-car video, but not for the test room video. [RA 81-81]. Initially, the prosecutor stated that he could not remember how he became aware of the defense's interest in the test room video (although it was acknowledged later that the defense made an inquiry about the video on or about March 29, 2013 [RA 83] but he did recall making an inquiry to the police department in March of that year about its availability and received an answer on April 1st that the video was no longer in existence. [RA 79-80, 83]. 12 Specifically, the prosecutor was informed that the police department routinely keeps these videos only 3 to 5 months from the date of the test before they are erased. [RA 80, 83]. The prosecutor further noted that based on his own knowledge and experience the breath test room did not have any audio recording capabilities. [RA 80, 82]. Officer Whipple who administered the breathalyzer test also testified that to his knowledge the data master room did not have audio recording. [RA 75]. The court determined that it appeared the tape was not destroyed purposely or maliciously after a request had been made for a copy of the tape, but rather that it had been destroyed as part of the police department's routine maintenance or recycling of digital recordings. [RA 82-83]. The court further determined that the video in question was "outside of the voluntary discovery agreement" and that a specific request would have to have been made for that to be discoverable; that it was too speculative to conclude that the video contained Brady material and that since there was no audio, the recording also was not Rosario material. [RA 82-83]. A. The Rules of Discovery The rules of discovery in New York are codified at CPL §240.20, and delineates what the People are required to provide upon a request for discovery. Absent a request for discovery, the People are not required to disclose any of the 13 enumerated materials, unless, of course, they are required to be disclosed as Rosario or Brady material. Defendant argues that pursuant to People v. Kelly, 62 NY2d 516 ( 1984) the People had a duty to preserve the data master room video until a request was made, and since it was not, sanctions had to be imposed. There is no doubt that the Court has stated that the People have a duty to preserve discoverable material and that "a necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made as any other rule would facilitate the evasion of the disclosure requirements." People v. Kelly, 62 N.Y.2d 516, 520 (1984). Appellant appears to interpret this obligation as unending, and a plain reading of Kelly would seem as though that is the case; that is, the People would have the obligation to preserve potential evidence indefinitely on the chance that long after the trial or appellate process has concluded the defendant may make a specific request for the material with respect to a CPL 440 motion, which in accordance with the rules can be filed at any time. Such an application, however, is impracticable and against the Court' s long recognized strong public policy in favor of finality of criminal cases. Storage capacity for physical and even digital evidence is limited, and criminal cases will never be concluded given such a reading and application of the prosecutor's duty to preserve. 14 The People do not dispute the prosecution has a duty to preserve, however, reasonable limitations necessarily should apply to that obligation. CPL §255.20-1 provides, in pertinent part, that " ... all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant..." Moreover, CPL §255.20-3 states, in pertinent part, "Notwithstanding the provisions of subdivisions one and two hereof, the court must entertain and decide on its merits, at anytime ... before the end of the trial, any appropriate pre- trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware .. " Thus, it would appear that a request for evidence, specific or otherwise, must be made within forty-five days of arraignment and likewise the prosecutor's duty to preserve should be for a reasonable period thereafter to allow for receipt of the request and time to obtain and disclose the material or dispute the disclosure and resolve the matter through further court proceedings. This application of the duty to preserve does not run afoul of the ruling in Kelly. In Kelly, the Court held "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 ... [ o ]therwise, sanctions will be imposed.~' Id. at 520. In discussing the degree of the sanction to be 15 imposed, the Court further stated, "In fashioning an 'appropriate' response to the prosecution's wrongful failure to preserve evidence ... the degree of prosecutorial fault surely may be considered, but the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society ... [and] although the choice of 'appropriate' action is committed to the sound discretion of the trial court, as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence." ld. Because the Court in Kelly addressed the fact that discoverable material may be lost and thus placed a heavy burden on the People to establish that good-faith efforts were made to prevent the loss, it would appear that the Court has never intended to establish a rule of indefinite preservation. In this matter, the underlying facts regarding the request for the video are as follows: As noted by the trial court, disclosing the breath test room video was not a part of the "voluntary disclosure" agreement between the parties, and thus, did not need to be turned over during the voluntary disclosure process. [RA 82-83]. The first mention of a request being made for the video is with respect to the defendant's omnibus motion made on December 11,2012. [RA 81]. Defendant argues that his request in paragraph 15 of his omnibus motion wherein it states '~Defendant request (sic) an Order directing that defense counsel 16 be allowed to copy said videos that are currently available and those that become available" [RA 15] is a specific request for the data master room video. However, in making this argument defendant ignores the qualifying phrase regarding the requested videos. By using the words "said videos" the request clearly refers back to the patrol car in-car video requested in the previous paragraph of defendant's motion. [RA 15]. Contrary to defendant's argument, this request is not a request for any videos other than in-car videos. Even if this request can be interpreted as a specific request for the breath test room video, the request was made four months and three weeks after the breathalyzer test was given to the defendant. Thus, it was more than likely the video had already been recycled in accordance with routine department procedure. Seemingly, defense counsel made an inquiry about the data master room video on or about March 29, 2013. [RA 83]. Whether this was a specific request for the video or merely an inquiry about it is unknown. However, even assuming it was a specific request, that request was made more than eight months after the breathalyzer exam was conducted. Applying the principles discussed in Kelly, since a request for the material was not made until more than 8 months after the recording was made (and 6 months from the expiration ofthe forty-five day motion requirement) and because the record reflects that the recording was not destroyed after the prosecution made 17 a good faith effort to obtain the video once the request was made, or for any malicious purpose, it was appropriate to decide that no discovery violation occurred and no sanctions were required. Even if the Court finds that a violation occurred, using the principals enunciated in Kelly, the most the trial court should have done in this matter is give itself an adverse inference charge. Obviously, in a bench trial such is not necessary since as the judge as well as the trier of fact he was already aware of the issue and a court is presumed to be competent and capable of applying the law as required. Accordingly, the court was correct in finding that there was no discovery violation and even if there were, there was no need to give an adverse inference instruction since the court was the trier of fact. B. The Rosario Rules With respect to bench trials, New York State's Rosario rules are codified at CPL §240.45, which requires that any written or recorded statement of a witness that relates to the witness' testimony must be disclosed to the defense prior to the submission of evidence. See also, People v. Kinred, 276 A.D.2d 927, 929 (3rd Dep 't 2000). However, CPL §240. 75 states, in pertinent part, "the failure of the prosecutor ... to disclose statements that are required to be disclosed under ... paragraph (a) of subdivision one of section 240.45 of this article shall not 18 constitute grounds for any court to ... set aside a conviction , or reverse, modify or vacate a judgment of conviction in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial..." Additionally, in People v. Martinez, 22 NY3d 551 (2014) the Court has stated, " ... our rule is clear: non willful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice .. .If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault.." I d. at 567 (citations omitted). In this matter City Court determined that the video recording was not Rosario because it did not contain any audio. [RA 82-83]. Even assuming that the video is Rosario material nonetheless, the defendant has failed to meet his burden. Defendant has not shown any prejudice and there is no reasonable possibility that the absence of the video contributed to the verdict. The video recording could only have shed light on what occurred in the data master room as the defendant was undergoing the breathalyzer exam. From the defense perspective, at best the video would have tended to corroborate the trial attorney's insinuations during cross examination that the defendant had difficulty blowing into the instrument due to having asthma or other breathing problems. [RA 76; RA 84]. Significantly, the corroboration would not have come through 19 words spoken to that effect, but only if one could have seen that the defendant was having difficulty breathing in general. Moreover, given the fact that the video had no accompanying audio, it would have been impossible for the video of the data master room to have "clarified the circumstances surrounding the stop and arrest of Defendant" as alleged in defendant' s brief. What occurred in the data master room occurred well after the stop of the defendant on the street. In the instant case, the video was lost due to automatic recycling of videos within a three to five month time frame. [RA 80]. There has been no evidence to show the willful, intentional destruction of the video. Additionally, upon request for the "breath test video", the people complied with the request but to no avail. [RA 80]. While the discoverable evidence was lost, the nonwillful loss of the claimed Rosario material does not require the court to impose a sanction because the appellant failed to establish prejudice. The appellant contends that the "breath test video" would have helped to clarify the circumstances of his stop and arrest. The footage of the video displayed the appellant providing repeated inadequate samples into the breathalyzer constituting a "failure by conduct". [RA 71-74]. This can be corroborated by the breathalyzer's record of use and the testimony of Officer Whipple. The appellant asserts a medical condition contributed to the repeated failure to give a proper breath test sample. However, according to the testimony of Officer Whipple the appellant, in the course of attempting to provide 20 a sample, never indicated any medical condition which would affect his ability in providing a proper sample. (RA 70]. Additionally, the "breath test video" has no value in corroborating or refuting the appellant's contention because the video did not contain audio from the interaction. [RA 79]. The appellant cannot reasonably show prejudice by the loss of the video, where audio would be required to clarify the appellants contention. Therefore, the court did not err in refusing to impose a sanction for an alleged discovery violation because no prejudice has been established by the unavailability of the video in question. There was testimony from the arresting officer who stopped the defendant, regarding his observations of defendant's condition, the odor of alcohol on his breath, and the administration of the field sobriety tests, all of which were subjected to cross-examination. [RA 47-51; 60-66]. Moreover, the in-car video with accompanying audio from the arresting officer's patrol car was played for the court showing defendant's condition and actions prior to and during the stop. [RA 53-59]. Based on this evidence alone, and without any testimony regarding defendant's actions during the breathalyzer exam, there was ample evidence to have convicted the defendant of driving while impaired from alcohoL There was no reasonable possibi I ity that the defendant wouldn't have been convicted if the recording had been available. 21 C. The Brady Rules It is axiomatic that if the video recording contained Brady material the prosecution needed to have disclosed the recording to the defense irrespective of a request. The Court has made it clear, however, that the severity of the sanction for failing to tum over Brady material will depend on whether or not the defense made a specific request for the material. In People v. Valardi, 76 NY2d 67 (1990) the Court stated that with respect to review of cases involving the failure to disclose material to the defense, New York State was going to continue to utilize a two tier approach that was premised on the U.S. Supreme Court's ruling in U.S. v. Agurs, 427 U.S. 97 (1976), and was not going to adopt the single tier approach subsequently enunciated by the Supreme Court in U.S. v. Bagley, 473 U.S. 667 (1985). Thus, when a specific request is made for material and the prosecution fails to disclose the requested material, the failure to do so will be held to be constitutional error and reversal of a conviction will be required if there was a reasonable possibility that the undisclosed material contributed to the defendant's conviction. Valardi, supra. However, if no specific request is made, the standard of review remains as the Court enunciated in People v. Smith, 63 NY2d 41 (1984). That is, "where the defense makes only a general request, or none at all, the failure to tum over obviously exculpatory material violates due process only if the omitted evidence 22 creates a reasonable doubt which did not otherwise exist." ld. at 67. Both Valardi and Smith dealt with material that was determined to be exculpatory. In this matter, City Court determined that the video could not be considered Brady since any evidence of its exculpatory nature was too speculative. [RA 82- 83]. Even assuming the video contained Brady material, however, the defendant has not met his burden of proof regarding the sanction to be imposed. As previously argued, the request made in the defendant's omnibus motion for a copy of "said videos" cannot be considered a specific request for the video of the data master room since it clearly related to a request for the in-car video from the patrol car. The only request in the omnibus motion was a general request for Brady material. Thus, defendant must demonstrate to a reasonable doubt that he would not have been convicted if the video recording had been available. Relying on the arguments made with respect to defendant's burden under a Rosario violation analysis, the People submit that since defendant couldn't sustain the burden of "reasonable possibility" it is impossible for him to meet the standard of "reasonable doubt" under the circumstances of this case. The record does reflect, however, that on March 29, 2013, long after the video had been destroyed due to routine maintenance, the defense made an inquiry as to the availability of the video. Assuming for the sake of argument that this inquiry is a specific request for Brady material, given the facts and circumstances 23 ofthis case (as previously argued) there is not even a reasonable possibility that the outcome of the trial would have been different if the video had been available. POINT IV COUNTY COURT CORRECTLY AFFIRMED THE TRIAL COURT'S ADMISSION OF EVIDENCE REGARDING HORIZONTAL GAZE NYSTAGMUS BECAUSE THE PEOPLE LAID A PROPER FOUNDATION TO ADMIT THE EVIDENCE For scientific evidence to be properly admissible, evidence must be deemed reliable and have gained "general acceptance" in its specific field by the relevant scientific community. People v. Wesley, 83 N.Y.2d 417, 422 (1994). Horizontal Gaze Nystagmus (HGN) field sobriety tests" have been found within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability and then conduct only a foundational inquiry into whether the accepted techniques were actually employed in this case and the tester's qualifications." See, People v. Hammond, 35 A.D.3d 905 , 907 (Third Dep't 2006). A proper foundational inquiry requires the establishment of the qualifications to administer the HGN test as well as whether the accepted techniques and procedures were employed. People v. Gallup, 302 A.D.2d 681, 684 (Third Dep't 2003). In Gallup, The Appellate Division, Third Department clarified that a trial court is not required to hold a Frye hearing to admit HGN evidence when a proper foundational inquiry has been provided. Id. 24 The present case compares favorably to People v. Tetrault, 53 A.D.3d 558 (Second Dep't 2008), where evidence, regarding a HGN test, was found to be properly admitted at trial without conducting a~ hearing. ln Tetrault, defendant contended that the introduction of the HGN test was improper and should be accorded little weight because its scientific validity was never established. Tetrault, 53 A.D.3d at 559. However, the Appellate Division, Second Department found that the trial court did not err in admitting the HGN field sobriety test because such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication. Id. Further, the People laid a proper foundation for admitting the evidence. Id. The court reasoned that the People established the officer's qualifications to administer the HGN field sobriety test as well as the accepted techniques that were actually employed by the officer. I d. People v. Hammond 35 A.D.3d 905, 907 (Third Dep't 2006) is also analogues to the present case. In Hammond, the defendant contended that the court erred in failing to conduct a foundational inquiry into the admissibility of the HGN field sobriety test. The Third Department, like the Second Department, recognized the HGN field sobriety test to be accepted in the scientific community as reliable indicator of intoxication. The court found that there was no error in admitting the HGN field sobriety test as evidence. Id. The court reasoned that the people laid a proper foundation in indicating the qualifications of the officer administering the 25 test as well as indicating the accepted techniques employed in administering the test. ld. In People v. Julius, 93 A.D.3d 1296, 1296, (Fourth Dep't 2012) the court found the lower court did not err in admitting the HGN field sobriety test as evidence in absence of conducting a ~ hearing. The court agreed with prior decisions in the Second and Third Departments and found the HGN field sobriety test is accepted within the scientific community as a reliable indicator of intoxication and took judicial notice of the HGN test's acceptability. Id. at 1297. The court reasoned that the People laid the proper foundation to admit such evidence. The People provided the officer's qualifications in administering the test as well as indicated the accepted methods used in conducting the HGN test. Id. County Court properly affirmed the admissibility of the HGN field sobriety test in the existing case. Here, the People provided a proper foundation to admit the evidence. Officer Gonzalez testified that he attended a six month police academy learning about the vehicle and traffic law, penal law, traffic stops, tactics etc. [RA 42]. After completing the academy, Officer Gonzalez received additional instruction regarding vehicle and traffic law. [RA 42]. The continued instruction entailed a six week field training period followed by a one week standardized field sobriety training period. [RA 42]. The standardized field sobriety training included learning the standardized field sobriety tests, vehicle and traffic violations, as well 26 as how to identify indications of intoxication and erratic driving. [RA 43]. At the conclusion of the training, Officer Gonzalez became certified in conducting the three standardized field sobriety tests including the Horizontal Gaze Nystagmus. [RA 43]. To become certified in Horizontal Gaze Nystagmus, Officer Gonzalez had to conduct the HGN test on both an intoxicated individual as well as a sober individual, while being watched over by instructors. [RA 44-45]. The officer's findings were verified by the use of chemical tests to determine accuracy. [RA 45]. The People here clearly established Officer Gonzalez's qualifications to administer the HGN test. Therefore like in Tetrault, Hammond, and Julius, the People laid a proper foundation to show Officer Gonzalez's qualifications to administer the HGN field sobriety test. Moreover, the People further laid the proper foundation to show the accepted techniques and procedures that were used in administering the HGN field sobriety test to appellant. Officer Gonzalez testified to being involved in close to one hundred DWI arrests in the past two years. [RA 46]. The frequency of involvement in such arrests tends to show a level of comfort in administering the accepted procedures and techniques of the HGN field sobriety test. Further the testimony of Officer Gonzalez indicated the step by step process used in properly administering the HGN test to the appellant. It was indicated that Officer Gonzalez instructed the appellant on how to proceed with the test. The instructions included 27 placing feet together, putting hands at their side and to follow the stimulus with their eyes only. [RA 60]. Additionally, it was stated that the stimulus must be 12 inches away and pointed at a slight tilt upwards to make sure the subject's eyes aren't horizontal. [RA 60]. A total of eight passes are made with the stimulus, on the first two the officer looks for equal pupil size and equal tracking as a procedural measure, on the next six, the officer looks for a lack of smooth pursuit, nystagmus at maximum deviation and nystagmus prior to 45 degrees. [RA 61]. After describing the proper procedure in administering the HGN field sobriety test, it was indicated that the test explained at trial was the same test administered to appellant upon being stopped. [RA 64]. Therefore, the People, through the testimony of Officer Gonzalez, laid a proper foundation to show the accepted techniques and procedures of the HGN field sobriety test were actually employed. POINTY THE EVIDENCE PRESENTED AT TRIAL WAS LEGALLY SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS IMPAIRED BY THE CONSUMPTION OF ALCOHOL The Court has stated that VTL § 1192( 1 )(driving while ability impaired) requires proof that " 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). A conviction for driving while 28 ability impaired does not require proof of intoxication but only that defendant's driving ability was impaired to any extent. People v. Lizzo, 178 A.D.2d 741,742 (Third Dep't 1991). "A verdict IS legally sufficient when, viewing the facts in a light most favorable to the people, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt." People v Acosta, 80 N.Y.2d 665, 672 (1993). "A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof." People v. Danielson, 9 N.Y.3d 342,349 (2007). The Appellate Division, Third Department has found evidence to be legally sufficient in relation to the charge of driving while ability impaired by alcohol, when a defendant had been driving erratically, had bloodshot eyes, slurred speech, had failed field sobriety tests and admitted drinking. People v. Crandall, 287 A.D.2d 881, 882 (Third Dep't 2001). Here, the evidence provided by the People at trial was legally sufficient to prove beyond a reasonable doubt that appellant was impaired by the consumption of alcohol. Officer Gonzalez indicated that the appellant engaged in unusual behavior upon being pulled over. [RA 47-48]. Officer Gonzalez, being trained to ride motorcycles, noted that when coming to a stop usually you stop with your feet 29 down. [RA 48]. The appellant, according to Officer Gonzalez's testimony, had difficulty balancing as he awkwardly held his legs out in order to balance upon stopping. [RA 48]. Further, the appellant pulled over to the left side of the road when you are normally supposed to pull to the right of traffic for safety. [RA 47]. It was indicated by appellant, upon conversing with Officer Gonzalez, that he had consumed one alcoholic beverage on the night in question. [RA 49]. However, during the questioning, Officer Gonzalez observed that appellant had bloodshot eyes, provided untimely responses to basic questions, and had an odor of alcohol on his breath. [RA 48, 50-51]. Moreover, the appellant failed the standardized HGN field sobriety test. [RA 64]. In administering the HGN field sobriety test, officers are trained to look for six clues of intoxication. The appellant showed all six clues of intoxication upon performing the test. [RA 64]. The appellant contends that the HGN test is very unreliable and very subjective. However The Second, Third, and Fourth Departments have found the HGN field sobriety test to be generally accepted within the field of optometry as a reliable indicator of intoxication. Moreover, the trier of fact in this matter was made aware of the degree of reliability of the HGN test. Officer Gonzalez testified that the test was not 100% reliable and that is why it is used in connection with the other field sobriety tests. [RA 68-69]. 30 After taking into account the astute observations of appellant and appellant's failure of the HGN field sobriety test, Officer Gonzalez based on his experience conducting DWI investigations determined that the appellant was impaired by the use of alcohol. Therefore, like in Crandell where evidence of bloodshot eyes, failed field sobriety tests, and an admission of consuming alcoholic beverages were legally sufficient to prove the defendant was impaired by alcohol , here, evidence of bloodshot eyes, impaired motor skills, an odor of alcohol on defendant's breath, and failure of the HGN field sobriety test was legally sufficient to prove beyond a reasonable doubt that the appellant was impaired by the consumption of alcohol. CONCLUSION For the reasons stated in Point I, the People respectfully submit that County Court did not err in refusing to recuse itself from the present appeal. For the reasons stated in Point II, the People respectfully submit that appellant was charged and convicted under a valid prosecutor's information. For the reasons stated in Point III, the People respectfully submit that there was no abuse of discretion in refusing to impose any sanction for the lost video recording. For the reasons stated in Point IV, the People respectfully submits that County Court's decision to allow the admittance of scientific evidence without a Frye hearing was proper and should be affirmed. 31 For the reasons stated in Point V, the People respectfully submit that the evidence was legally sufficient to prove beyond a reasonable doubt that appellant was impaired by a lcohol. Wherefore, for all the foregoing reasons the People respectfully requests that defendant's conviction and sentence be upheld. Dated: August 29, 2016 By: Respectfully submitted, ROBERT M. CARNEY District Attorney Tracey A. Brunecz Assistant District Attorney3 3 In accordance with Rule 500. 13(c) the above Assistant District Attorney hereby certifies that the word count for this brief according to the "Word'' software program, used in preparation of this brief is 7,423. 32