Prosecutors fight crime lab case decision

A Nassau prosecutor asked state appellate judges Tuesday to reinstate the first drunk-driving conviction thrown out by a trial judge because of problems at the Nassau Police Crime Laboratory.

Yael Levy, a prosecutor for Nassau District Attorney Kathleen Rice, told a four-judge panel in Brooklyn that the lab's lapses should not affect the case against Erin Marino because they don't "cast direct doubt on the reliability of the tests in this case."

Nassau Judge George Peck last year found Marino, of Hicksville, guilty of aggravated vehicular assault for slamming into a minivan while driving drunk and injuring three.

In February, Peck tossed the verdict, saying it might have been more favorable to Marino if lab problems had come to light. Peck ordered a new trial.

Prosecutors appealed. The appellate panel is likely to rule 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 DWI convictions based on lab evidence. In July, a second conviction was thrown out by another Nassau judge questioning the lab's reliability. That decision also is under appeal.

County officials shut the lab in February, two months after it was placed on probation by an accrediting agency because of concerns over handling of evidence and other deficiencies. State Inspector General Ellen Biben is investigating the lab.

In court Tuesday, Associate Justice John Leventhal asked Levy whether Marino's defense lawyer didn't have the right to question the technician who tested her 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.

Levy had said that 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 it 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 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?"