Hearing ordered on breath test

A Nassau County judge has ordered a hearing to determine if the breath test police used to check if a Huntington woman was driving drunk might have been affected by mismanagement at the Nassau police department's crime lab.

District Court Judge Sharon Gianelli said in her decision that "very significant disputed issues exist" about the reliability of the evidence in the case against Nicole Gioielli, 27, arrested on drunken driving charges in Nassau on Aug. 3.

Breath test results are the basis of the majority of drunken driving convictions in the county.

A spokesman for District Attorney Kathleen Rice declined to comment on Gianelli's decision.

It is the second time since the troubled lab closed Feb. 18 that a judge has granted a hearing on whether evidence or charges should be thrown out because of questions about the reliability of lab analysis.

Attorney Brian Griffin of Garden City represents both drunken driving defendants who have so far been granted hearings on lab issues. A hearing for Griffin's client Erin Marino ended with Nassau Judge George Peck granting a new trial on felony drunken driving charges.

In Gioielli's case, Griffin says he will explore whether the lab's failure to calibrate an instrument called a pipettor affected the way it made a solution used in the breath test.

Prosecutors argued in court papers the failure to calibrate the pipettor did not affect the way it worked. But Griffin said failing to calibrate the pipettor could affect results.

Separately, Acting Supreme Court Justice James P. McCormack denied a motion for a pretrial hearing by defense attorney Bruce Barket of Garden City on behalf of David Kappen, 34, of Williston Park.

Kappen faces charges that include second-degree attempted murder and first-degree possession of a controlled substance. He faces up to 24 years in prison.

Barket, pointing to lab drug testing problems, had asked McCormack to suppress drug evidence or to grant a hearing. One substance seized in the case was in the shape of a brick alleged to be cocaine and there were two tablets prosecutors said were oxycodone and burenorphin.

But McCormack said the court had no authority to suppress evidence or to order a hearing in the case.