People v. Muscarnera

16 Misc. 3d 622
CourtNew York District Court
DecidedMay 10, 2007
StatusPublished
Cited by1 cases

This text of 16 Misc. 3d 622 (People v. Muscarnera) is published on Counsel Stack Legal Research, covering New York District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Muscarnera, 16 Misc. 3d 622 (N.Y. Super. Ct. 2007).

Opinion

[623]*623OPINION OF THE COURT

Francis D. Ricigliano, J.

Can a vial of blood taken from a defendant, in the course of treatment and diagnosis following an automobile accident, be later obtained and tested by the People and the results used in prosecuting that defendant for driving while intoxicated and other charges? For the reasons set forth below, both the blood and the blood test results are protected by the physician-patient privilege and are precluded from use at the trial in this case.

The defendant is charged with violating Vehicle and Traffic Law § 1192 (3) (driving while intoxicated), Vehicle and Traffic Law § 1212 (reckless driving), Penal Law § 120.20 (reckless endangerment in the second degree) and Penal Law § 145.00 (3) (criminal mischief in the fourth degree).

The defendant moves for various forms of relief:

1. Dismissal of the charges of: (A) reckless driving (Vehicle and Traffic Law § 1212); (B) criminal mischief in the fourth degree (Penal Law § 145.00 [3]); and (C) reckless endangerment in the second degree (Penal Law § 120.20) on the grounds that said charges are insufficient and defective, pursuant to CPL 170.30, 170.35, 100.15 and 100.40.
2. An order, pursuant to CPL 710.20, suppressing evidence of any chemical test of the defendant’s blood upon the grounds that the search warrant was based upon less than probable cause.
3. Preclusion of the evidence of any chemical test of the defendant’s blood upon the grounds that: (A) the search warrant abrogated the defendant’s rights pursuant to Vehicle and Traffic Law § 1194 (3); (B) the defendant’s blood was taken in violation of the physician-patient privilege; (C) the blood test results are unreliable as a matter of law; and (D) the People cannot establish a chain of custody for the blood test results.
4. Preclusion of the data results of the powertrain control module obtained from the defendant’s automobile on the basis that said results are scientifically unreliable or, in the alternative, the defendant seeks a Frye hearing.
5. Suppression, pursuant to CPL 710.20 (3), of the defendant’s alleged statements or, in the alternative, a Huntley hearing.
6. A Sandoval hearing.
7. An order, pursuant to CPL 200.95, for a court-ordered bill of particulars and pursuant to CPL 240.40 for court-ordered discovery.

[624]*624The People oppose the defendant’s motion. With permission of the court, the Nassau County Criminal Courts Bar Association filed an amicus curiae brief in support of the defendant’s position on the issue of physician-patient privilege.

I. Factual Background

On July 11, 2006, at approximately 9:45 p.m., the defendant, a member of the Nassau County Police Department, was traveling eastbound on Jericho Turnpike, in an automobile owned by the Nassau County Police Department. The defendant had a one-car accident. At least two persons witnessed the events leading up to the accident, Cassandra Cattani and Zack Beau-man.

As a result of the accident, the defendant suffered injuries. Ambulance medical technician (AMT) Robert J. Spear arrived at the scene. He observed that the defendant was “disoriented.” AMT Spear placed a cervical collar on the defendant’s neck and placed him on a stretcher. AMT Dennis Hendrickson then arrived, and an oxygen mask was placed on the defendant. AMTs Hendrickson and Spear treated the defendant for a serious head injury. As part of the treatment, while en route to Nassau University Medical Center (NUMC), AMT Spear collected six vials of the defendant’s blood. Based upon NUMC’s standard practice, once the defendant arrived in the emergency room the emergency room nurses did not draw additional blood, but instead used the AMT drawn blood since the quantities were sufficient and were presented inside proper containers. That night, at the hospital, the vials’ contents were tested for a “comprehensive metabolic profile,” which did not include testing for alcohol. Five of the six vials were then discarded.

On July 13, 2006, Maria Jinky Jung, a NUMC medical technologist, removed the one remaining vial from the storage refrigerator, unsealed the vial, and tested its contents in order to determine the ethanol content of the blood in the vial. Ms. Jung performed this test not for purposes of medical treatment, but “to see if ethanol was present.”

On July 20, 2006, the Nassau County Police Department sought a search warrant for the one remaining vial of the defendant’s blood stored at the hospital. The affidavit in support of the search warrant was signed by Richard H. Harasym, a member of the Nassau County Police Department and a detective with the internal affairs unit. The detective’s assertions were based upon information and belief, the sources being (1) [625]*625the AMT who drew the defendant’s blood, (2) another civilian witness (Amanda Emigholz) of the defendant’s accident, and (3) a civilian witness who was employed at the restaurant which the defendant attended before the accident.

That same day, July 20, 2006, the Honorable Frank A. Gulotta, Jr., signed a search warrant for “a vial or vials of first drawn blood” taken from Vincent Muscarnera by an AMT on July 11, 2006. The warrant directed that the blood be taken to the Suffolk County Forensic Laboratory for “alcohol and/or drug testing.” On July 21, 2006, Officer Harasym served the search warrant and seized the one remaining vial of the defendant’s blood.

The blood was tested at the Division of Medical-Legal Investigations and Forensic Sciences, County of Suffolk, New York. A toxicology report dated July 21, 2006 indicates that the blood alcohol content in the defendant’s blood as seized was .21%.

II. Legal Analysis and Conclusions

1. Sufficiency of Accusatory Instruments

The defendant seeks an order dismissing three of the four charges (Vehicle and Traffic Law § 1212; Penal Law §§ 120.20, 145.00 [3]). The charges for which the defendant seeks dismissal were all filed by way of District Court information.

An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15; (2) sets forth allegations which “provide reasonable cause to believe that the defendant committed the offense charged”; and (3) contains nonhearsay allegations which “establish, if true, every element of the offense charged and the defendant’s commission thereof.” (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1987].) As stated by the Court of Appeals in Alejandro, this third requirement is also known as the prima facie case requirement.

On a motion to dismiss an information, the court must confine its analysis to the allegations contained in the information and in any depositions filed in support of it. (People v Pelt, 157 Misc 2d 90 [Crim Ct, Kings County 1993]; People v Alejandro, 70 NY2d 133 [1987], supra.)

A. Reckless Driving

Vehicle and Traffic Law § 1212 (reckless driving) reads, in relevant part, that:

[626]

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Related

People v. Elysee
49 A.D.3d 33 (Appellate Division of the Supreme Court of New York, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
16 Misc. 3d 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-muscarnera-nydistct-2007.