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Other crime lab challenges possible?

A file photo of Erin Marino, 30, outside

A file photo of Erin Marino, 30, outside a Mineola courtroom. (Feb. 17, 2011) Credit: Patrick E. McCarthy

A Nassau judge Monday threw out a Hicksville woman's drunken driving conviction because of "potentially tainted evidence" from the county police crime lab, a ruling that could spur a flood of challenges to other convictions.

Judge George Peck ruled that in Erin Marino's nonjury case, he may have ruled differently had he known about the problems at the lab, which did not surface until about four months after her conviction.

"I expect an avalanche of motions and litigation stemming from this decision," said William Kephart, president of the Nassau Criminal Courts Bar Association.

Lawyers and experts have said it is impossible to know how many cases could be affected, since no one knows how far back the error-plagued lab's problems go. District Attorney Kathleen Rice's office has said the lab tested drug samples from about 900 cases a year since 2007, and 10 percent of those are being retested.

Prosecutors said they plan to appeal Peck's decision to grant a new trial to Marino. Rice's office had no further comment.

Brian Griffin, the Garden City lawyer representing Marino, called for Rice to suspend prosecutions and retest all evidence that came through the lab.

"Whatever the lab has put out will not be believed by a jury," Griffin said.

Marino was convicted in August of aggravated vehicular assault for slamming into a minivan while driving drunk on June 25, 2009, on Route 106 in Glen Cove.

Her lawyer sued Dec. 14 to overturn the conviction - 11 days after the police crime lab was put on probation by a national lab accreditation agency that cited 26 violations.

Rice and Nassau County Executive Edward Mangano closed the lab's drug-testing unit on Feb. 10 and shut the entire lab a week later, after revelations supervisors may have failed to disclose inaccurate testing.

Peck said that was the right move - and at odds with the prosecution's argument in the Marino case.

He asked how the district attorney's office can "publicly give a vote of no confidence to the laboratory results, and then in good conscience argue in a court of law that the factors that form the basis of the vote of no confidence be excluded from jury consideration."

Of the lab closing, the judge added, "you can't shield the basis for those actions from a jury."

In particular, Peck cited a court document by Rice's chief of staff, Albert Teichman, seeking appointment of a special prosecutor "to ascertain whether any acts of criminality were committed, including whether there was an attempt to cover up errors or misconduct at the laboratory."

In court last week, Maureen McCormick, chief of the district attorney's Vehicular Crimes Bureau, said the lab problems affect drug cases, but should not affect drunken driving cases like Marino's. A campaign against drunken drivers has been one of the hallmarks of the 5-year-old Rice administration.

McCormick 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. McCormick said that meant the device had worked correctly the entire time.

Even as the challenge to Marino's conviction was under way, police revealed that in nine drunken driving cases tested Oct. 15, 2010, defendants' paperwork had been stapled to the wrong test results.

With Kathleen Kerr

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