Constantine v. Leto

New York Supreme Court

Constantine v. Leto

142 Misc. 2d 728

CourtNew York Supreme Court

DecidedFebruary 17, 1989

StatusPublished

Cited by1 cases

This text of 142 Misc. 2d 728 (Constantine v. Leto) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Constantine v. Leto, 142 Misc. 2d 728 (N.Y. Super. Ct. 1989).

Pincite

Opinion

OPINION OF THE COURT

Edward S. Conway, J.

This is a motion by the petitioner Thomas A. Constantine, [729]*729Superintendent of the Division of State Police, for an order vacating a prior order of this court which granted a subpoena duces tecum directing petitioner to produce the New York State Police Breath Test Operator’s Training Course Manual in a criminal action entitled: "In the Matter of People against Mark P. Leto.”

On December 7, 1988, this court issued a subpoena duces tecum directing the New York State Police to produce "a certain New York State Police Breath Test Operator’s Training Course Manual” and specifically that edition which was used to train Trooper E. J. Demczar who was first certified as a breathalyzer operator on February 5, 1988 and who was the arresting officer in the criminal case referred to above which was a trial of respondent Leto on driving while intoxicated (DWI) charges.

The respondent, Superintendent of the Division of State Police, contends that the subpoena duces tecum may only be used to obtain material which is discoverable under CPL article 240, but not possessed by the prosecutor, or which constitutes evidence, and that the manual in question is not evidence and not discoverable pursuant to CPL 240.20.

This court cannot agree with the contentions of the petitioner. The manual in question is a specific set of instructions and procedures for the proper performance of chemical and psychophysical tests. It constitutes the most comprehensive evidence in regard to State Police procedure for the arrest and testing of DWI defendants. It is certainly direct evidence of both the procedures that should be followed as well as the consequences of not following those procedures. In the case at hand, the issue is whether the defendant Leto was intoxicated, and the use of the subpoena duces tecum for the purpose of obtaining material evidence of that fact is proper, in this court’s opinion. The defendant is entitled to access to the manual by the subpoena duces tecum for the purpose of proving what the proper procedures in testing were and that his accusers failed to follow those procedures, if that be the case.

In view of the foregoing, the motion to vacate the prior order of this court which granted a subpoena duces tecum is denied.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

Edward S. Conway, J.

This is a motion by the petitioner Thomas A. Constantine, [729]*729Superintendent of the Division of State Police, for an order vacating a prior order of this court which granted a subpoena duces tecum directing petitioner to produce the New York State Police Breath Test Operator’s Training Course Manual in a criminal action entitled: "In the Matter of People against Mark P. Leto.”

On December 7, 1988, this court issued a subpoena duces tecum directing the New York State Police to produce "a certain New York State Police Breath Test Operator’s Training Course Manual” and specifically that edition which was used to train Trooper E. J. Demczar who was first certified as a breathalyzer operator on February 5, 1988 and who was the arresting officer in the criminal case referred to above which was a trial of respondent Leto on driving while intoxicated (DWI) charges.

The respondent, Superintendent of the Division of State Police, contends that the subpoena duces tecum may only be used to obtain material which is discoverable under CPL article 240, but not possessed by the prosecutor, or which constitutes evidence, and that the manual in question is not evidence and not discoverable pursuant to CPL 240.20.

This court cannot agree with the contentions of the petitioner. The manual in question is a specific set of instructions and procedures for the proper performance of chemical and psychophysical tests. It constitutes the most comprehensive evidence in regard to State Police procedure for the arrest and testing of DWI defendants. It is certainly direct evidence of both the procedures that should be followed as well as the consequences of not following those procedures. In the case at hand, the issue is whether the defendant Leto was intoxicated, and the use of the subpoena duces tecum for the purpose of obtaining material evidence of that fact is proper, in this court’s opinion. The defendant is entitled to access to the manual by the subpoena duces tecum for the purpose of proving what the proper procedures in testing were and that his accusers failed to follow those procedures, if that be the case.

In view of the foregoing, the motion to vacate the prior order of this court which granted a subpoena duces tecum is denied.

Cite This Page — Counsel Stack

Bluebook (online)

142 Misc. 2d 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constantine-v-leto-nysupct-1989.

Opinion

Related

Cite This Page — Counsel Stack