People v Knapp (2003 NY Slip Op 51705(U))

People v Knapp (Christopher)

2003 NY Slip Op 51705(U)

Decided on December 23, 2003

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the Official Reports.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -

against

CHRISTOPHER KNAPP, Appellant.

Appeal by defendant from a judgment of the District Court, Nassau County (D. Mitchell Jaffe, J.), rendered March 28, 2001, convicting him, after a bench trial, of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and imposing sentence.

Judgment of conviction unanimously reversed as a matter of discretion in the interest of justice and matter remanded to the court below for further proceedings.

Defendant was involved in an accident in May 1998 and, prior to being placed into the ambulance, the arresting officer decided to arrest defendant for driving while intoxicated. Defendant was alert and conscious at the scene of the accident and during his ride to the hospital.

At the hospital, the officer was informed that defendant would be given medicine that would render him unconscious. At no time prior to the administration of said medicine, did the officer inform defendant that his blood would be taken, and he did not provide defendant with his refusal warnings. Defendant's blood was subsequently taken by an unspecified person after he was rendered unconscious (see generally Vehicle and Traffic Law § 1194 [4] [a] [1]; People v Olmstead, 233 AD2d 837 [1996]; People v Gertz, NYLJ, July 11, 2001 [App Term, 9th & 10th Jud Dists]).

Upon a review of the record, we find that defendant was deprived of the effective assistance of counsel see People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Flores, 84 NY2d 184 [1994]). We note that contributing to our determination was the absence of a motion for suppression of the blood test results on the grounds that, inter alia, the officer failed to provide defendant with his refusal warnings and defendant's blood was taken without his consent in the absence of exigent circumstances (see Vehicle and Traffic Law § 1194 [2] [b]), the stipulations relating to such evidence at trial, and then the untimely objection to such evidence after the People had rested. Accordingly, the judgment of conviction is reversed and the matter [*2]remanded to the court below for further proceedings.