Nov. 01--A Nassau prosecutor challenging a judge's decision to throw out the guilty verdict against an accused drunken driver because of problems at the Nassau Police Crime Laboratory was pummeled with questions Tuesday morning by a panel of state appellate judges.
Yael Levy, a prosecutor for Nassau District Attorney Kathleen Rice, argued to a panel of four appellate judges in Brooklyn that lapses at the crime lab did not affect the outcome of the case against Erin Marino, of Hicksville.
"It doesn't cast direct doubt on the reliability of the tests in this case," Levy said.
Nassau Judge George Peck last year had found Marino guilty of aggravated vehicular assault in a non-jury trial for slamming into a minivan while driving drunk, injuring three people.
In February, Peck tossed the verdict, saying it might have been more favorable to Marino if problems at the lab had come to light before she went to trial.
Prosecutors appealed. The Appellate Division, Second Judicial Department's decision in the case will likely be announced within the next few months.
If Peck's order is upheld, some lawyers and experts have said it could lead to a flood of challenges to other drunken driving convictions based on lab evidence.
County officials shuttered the lab in February, two months after it was placed on probation by an accrediting agency because of concerns over the handling of evidence and other deficiencies. State Inspector General Ellen Biben is investigating the lab and is expected to release a report in the coming weeks.
At the Brooklyn court Tuesday, one of the appellate judges, Associate Justice John Leventhal, asked Levy whether the defense in the case didn't have the right to question the technician who tested Marino's blood and other witnesses about the lab's history of mishandled evidence.
Levy began to answer. "Not every new issue that comes to light ..." she said.
But Leventhal cut her off.
"But this is a big one. I don't recall the closing of another lab in New York," he said.
A second justice, Ariel Belen, echoed that. He asked whether a number of mistakes in other cases by the technician who tested Marino's blood, as well as overall problems at the lab weren't reason enough to retry the case.
"Put all that together, and don't you think the trier of fact might have come up with a more favorable outcome?" he asked.
Levy had said while the device used to measure liquid in blood-alcohol tests had not been calibrated in several years, it functioned properly when scientists tested it. She said that meant the device had worked correctly the entire time.
Appellate judges also questioned Marino's lawyer, Brian Griffin of Garden City, about evidence that did not go to the lab that showed Marino was drunk.
"The evidence was really strong that this woman was driving erratically, and that she smelled of alcohol," Leventhal said. Such evidence could convict Marino on misdemeanor drunken driving charges, but not felony charges.
Judges asked Griffin about Levy's assertion that the science in the Marino case was sound.
"If you don't follow scientific protocol, the result is in question," Griffin retorted. "Shouldn't we have had the opportunity to go into that?"
Copyright 2011 - Newsday, Melville, N.Y.
