[*1]
People v Kull
2014 NY Slip Op 51176(U) [44 Misc 3d 1218(A)]
Decided on July 24, 2014
District Court Of Nassau County, First District
O'Donnell, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 24, 2014
District Court of Nassau County, First District


The People of the State of New York, Plaintiff(s)

against

Jonna W. Kull, Defendant(s)




2012NA023195



Kathleen M. Rice, District Attorney, Nassau County, Attorney for Plaintiff, 99 Main Street, Hempstead, NY 11550, 516-572-2000; David Mirsky, Esq., Attorney for Defendant, 114 Old Country Road, Mineola, NY 11501, 516-741-4350.


Colin F. O'Donnell, J.

The defendant was charged with Driving While Intoxicated; Per Se (VTL §1192.2) and Unsafe Lane Change (VTL §1128[a]). The charges stem from an incident alleged to have occurred on October 7, 2012, at approximately 4:10 a.m. on Hempstead Turnpike and Semton Boulevard, Hempstead, New York.

On June 13, 2013, the defendant pled guilty to Driving While Intoxicated; Per Se, pursuant to an agreement that included a "no jail" commitment. Defense counsel now moves to vacate the judgment of conviction pursuant to CPL 440.10(1)(b), (g), and (h), on the grounds that the judgment was procured by duress, misrepresentation or fraud on the part of the prosecutor; new evidence has been discovered since the entry of the judgment; and that the judgment was obtained in violation of a right of the defendant under both United States and New York constitution. The defendant's motion is determined as follows.

Initially, as the People correctly point out, since the defendant here has not yet been sentenced, defense counsel's reliance upon CPL 440.10 is misplaced. The court will, however, deem the instant application one to withdraw the defendant's guilty plea, pursuant to CPL 220.60(3).In pertinent part, CPL 220.60(3) provides:



"At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire [*2]indictment or to part of the indictment, ... to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored."

Although CPL 220.60 applies to indictments, CPL 340.20(1) expressly renders the provisions of Article 220 applicable to pleas to informations. Consequently, this court in its discretion may allow the defendant to withdraw her guilty plea, as a sentence has not yet been imposed.

In the case at bar, the defendant pled guilty on June 13, 2013. It was not until December 5, 2013, approximately six (6) months after the defendant's guilty plea, that the People notified defendant regarding Brady material. In particular, the prosecutor's letter to defense counsel was "to memorialize the disclosure I made to you this morning pursuant to Brady v Maryland," and stated in relevant part:



"It came to the attention of the District Attorney's office that during routine maintenance of Intoxilyzer 5000EN, Serial No.13839, a piece of the instrument had a contaminant on it. This instrument was used in connection with your above-listed client's breath test. The People are working to learn if the contaminant that was found could have potentially had an effect on your client's breath test results. As of today, the People do not have an answer yet. However, our expectation is that the answer would be that there was no effect. The District Attorney's office will keep you apprised of the information we receive as soon as we receive it."

Notwithstanding this notification from the District Attorney to the defendant's attorney on December 5, 2013, it is uncontested that a "Service Work Order" had been requested by the police, of the manufacturer, CMI, Inc., on May 1, 2013, some six (6) weeks before the defendant's guilty plea was entered. According to the "Preliminary Test Information" of the subject Intoxilyzer, it was determined that there was "contamination in cell and end block" and that although the sample chamber had been "cleaned," "spots of contamination remained." Pursuant to the "Technicians Form," dated May 28, 2013, the "Cell Chamber," "End Block Assy," "Teflon Gasket," and "Copper Gasket," were replaced.

On February 6, 2014, a letter was issued by the Corporate Counsel/Compliance Officer of CMI, Inc., the manufacturer of the Intoxilyzer, which states that the contamination found in serial number 68-013839 was aluminum oxide. The letter "explains" that "[w]hen moisture enters the calibration ports, and is allowed to remain, the oxidation process begins. With small amounts of moisture, small spots can oxidize which cover a small surface area and will have no effect on the test results" (emphasis added). However, the manufacturer's attorney also states in the letter that "[i]f a large amount of moisture enters the chamber and is allowed to remain in the chamber for a [*3]period of time, the instrument will not function. In this case, the instrument would fail calibration checks and not allow a breath test to be performed" (emphasis added).

Notably only the two extremes of "small" and "large" are addressed, the effect of any other amount of moisture remaining/contamination is not mentioned. Nonetheless, the letter concludes:



"Since this instrument was sent back to the factory for an inspection, cleaning and calibration, there is no reason to believe that the instrument was not operating properly either when it was sent to CMI or returned to Nassau County. Also, the fact that the technician tried to clean the parts to reuse them means that there was very little oxide on the parts."

In addition, Corporate Counsel's correspondence concludes:



"[a]s for any retained parts, once the repair process is complete any parts replaced during the repair are discarded. So, unfortunately, these replaced parts were discarded."

Based upon the above, the People claim that it "is now clear that it [the contamination] had no effect" on the Intoxilyzer results in this case. Parenthetically, although obviously not expert in the field, this court has difficulty following the reasoning and analysis of the People, which is based upon correspondence authored by the manufacturer of the contaminated instrument used in obtaining the defendant's BAC.

Upon the facts presented, the court disagrees with the People's conclusion.

Clearly, the police department and District Attorney had knowledge of a contamination issue regarding the Intoxilyzer 5000 EN that was used to obtain a BAC of the defendant's breath prior to the defendant's guilty plea, and they failed to disclose this information to the defendant. This information, if it had not been improperly withheld from the defendant and her counsel, would have permitted defendant the opportunity to evaluate the strength of the evidence regarding the reliability of the Intoxilyzer used to obtain the defendant's BAC, prior to pleading guilty.

Based upon the foregoing, and the particular circumstances presented, the defendant's motion to withdraw her previously-entered guilty plea is granted.

Accordingly, on the next court appearance, August 15, 2014, the defendant shall have the opportunity to withdraw her guilty plea and the case will be immediately scheduled for trial.

This constitutes the decision and order of the court.

/s/ Hon. Colin F. O'Donnell

DISTRICT COURT JUDGE



Dated:July 24, 2014



cc:David Mirsky, Esq.

Kathleen M. Rice, District Attorney