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Rice to expand retesting of drug evidence

A file photo of Nassau County District Attorney

A file photo of Nassau County District Attorney Kathleen Rice. Credit: Newsday / Audrey C. Tiernan, 2010

Nassau County District Attorney Kathleen Rice plans to expand retesting of drug evidence handled by the shuttered police crime lab because a review of some cases raises new concerns that evidence may have been tainted.

The retesting will now include misdemeanor drug cases as well as felonies, which could significantly widen the scope of the county's retesting efforts.

A review of old cases raised concerns about cross-contamination of evidence, said Rice's spokesman, John Byrne. Cross-contamination occurs when testing equipment is not properly cleaned of drug residue. Byrne said the number of misdemeanors requiring retesting and the time span involved have not been determined.

But Joseph Lo Piccolo, president of the Nassau County Criminal Courts Bar Association, said: "They're going to have to go back a few years to see how many hundreds, if not thousands, of people were wrongly charged because of police mishandling of evidence. If someone was charged with a crime based on a lab report done by police which ultimately evidenced no controlled substances, then they were falsely charged with a crime."

County officials closed the police crime lab Feb. 18 after learning about testing errors and asked NMS Labs, a private Pennsylvania lab, to retest drugs from past felony cases.

The Nassau County medical examiner's office discovered the potential for cross-contamination by comparing NMS reports to the original crime lab reports, Byrne said. He said that some crime lab reports did not show the same procedural documentation later done by NMS.

In December, an accrediting agency, ASCLD/LAB, put the lab on probation for failing to follow evidence protocols. State Inspector General Ellen Biben has been investigating the lab since February, when the county closed the facility.

"After consulting with the inspector general, the district attorney is calling for expanded retesting to include misdemeanor cases," Byrne said.

Biben spokesman John Milgrim said the potential for cross-contamination "led the inspector general to recommend expanding the retesting process to include misdemeanor cases."

The felony retesting now under way spans three years. NMS is retesting at a $100,000 monthly cost to the county and is expected to retest the misdemeanors, too, Byrne said.

He said it is expected that police department forfeiture funds -- assets seized in criminal cases -- which are paying for the felony retesting will also pay for misdemeanor retesting.

Marc Gann, immediate past president of the Nassau County Bar Association, said if the misdemeanor retesting shows lab errors, cases could be reopened, new trials could be ordered and there could be challenges to plea deals. He said many misdemeanors result in noncriminal resolutions and are reduced to violations or adjourned in contemplation of dismissal.

"The broader issue is the further lack of credibility in the police lab," Gann said. "If these cases [misdemeanors] were bungled, it further and more substantially undermines the way they were handling felony cases."

Katie Grilli-Robles, a spokeswoman for County Executive Edward Mangano, said neither the police department or the medical examiner's office could comment because "the inspector general has directed us not to speak."

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