People v. Scalzo , 176 A.D.2d 363 ( 1991 )

— Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.), rendered March 6, 1989, convicting him of criminally negligent homicide, vehicular manslaughter in the second degree (two counts), vehicular assault in the second degree (two counts), assault in the third degree and operating a motor vehicle while under the influence of alcohol (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence (see, People v Soalzo, 139 Mise 2d 539).

Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.

The various crimes with which the defendant was charged arose from a fatal motor vehicle accident involving his car and one driven by Kathryn McCarty, as a result of which McCarty was seriously injured and her fiance and only passenger was killed. Because both the defendant and Ms. McCarty smelled of alcohol at the time they were observed by the police in the emergency room to which each was taken, both individuals were asked to provide a blood sample for chemical analysis. Because the defendant refused to do so and McCarty either refused or was not lucid at the time of the request, the police obtained a court order pursuant to Vehicle and Traffic Law § 1194-a, compelling both individuals to submit to a chemical test. As a result of her test results, McCarty was not charged.

At the trial, the People’s accident reconstruction expert testified that the accident resulted from a head-on collision and that just prior to the impact, the defendant had been driving in the wrong direction in the westbound lane of the roadway. A police chemist testified that the two gas chromatograph tests and one cell diffusion test performed on the defendant’s blood sample produced blood alcohol readings of .094, .095 and .095 respectively or slightly below the .10 statutory level of intoxication. The witness acknowledged however that the defendant’s blood sample was not preserved for additional analyses and that Ms. McCarty’s sample was destroyed after it was found to produce a reading of only .008. Based on the blood alcohol content in the defendant’s blood sample and the number of hours that had elapsed from the time of the accident, the chief toxicologist for the Nassau County Medical Examiner’s Office testified that at the time of the accident, the blood alcohol content of the defendant was somewhere between .102 and .145 or somewhat higher than the statutory level of intoxication.

On appeal, the defendant maintains that the results of the chemical tests performed on his blood sample should have been suppressed, inter alia, because his arrest was not predicated on reasonable cause to believe that he was driving while legally impaired or intoxicated. We disagree.

As noted by the trial court in its decision (see, People v Scalzo, 139 Misc 2d 539, supra) the odor of alcohol on the defendant’s breath detected by the arresting officer shortly after the accident taken together with the head-on nature of the collision and the defendant’s apparent confusion as to the direction in which he was driving just prior to the collision provided probable cause to believe that he was driving while intoxicated or impaired. We also disagree with the defendant’s contention that suppression was warranted because the affidavit supporting the court order was defective. Contrary to the defendant’s assertion, the allegations contained in the affidavit were not conclusory in nature. Finally, there is no merit to the defendant’s contention that suppression was warranted because the court order was not served on him or the medical personnel who performed the blood test. The controlling provision of the statute, Vehicle and Traffic Law § 1194-a, does not contain any such requirement.

We nevertheless conclude that reversal is warranted in this case because of the trial court’s failure to impose even the most minimal sanctions on the People for their failure to preserve the defendant’s blood sample. In fashioning an "appropriate” response to the prosecutor’s failure to preserve evidence (see, CPL 240.70 [1]), the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society (see, People v Kelly, 62 NY2d 516, 520). The fact that the People lose evidence through inadvertence does not excuse the loss (see, People v Haupt, 71 NY2d 929). In the instant case, the court’s instruction which suggested that the failure to preserve the sample was of "no consequence” clearly did not even attempt to eliminate the prejudice caused the defendant. We consider this failure particularly grave under the instant set of circumstances where the chemical test performed on the sample of the defendant’s blood yielded a blood alcohol content that was below the statutory level of intoxication.

In light of our determination, we do not reach the other arguments raised by the defendant as to the need for reversal. Harwood, J. P., Eiber and Balletta, JJ., concur.