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EVIDENCE COLLECTED AFTER REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Third Department determined statements made by and evidence collected from defendant after his request for counsel should have been suppressed in this vehicular homicide case. A new trial was ordered;

The People further conceded at oral argument that defendant invoked his constitutional and limited statutory right to counsel in response to those warnings and that, under the circumstances of this case, valid grounds existed to suppress his post-invocation statements and evidence related to the DRE [drug recognition evaluation], second breathalyzer and blood tests … . The erroneous admission of this evidence is reviewed under the harmless error doctrine, and such an error is considered harmless “when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . The admissible evidence at trial established that defendant took twice his prescribed dosage of Clonazepam the morning of the accident and that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch as defendant’s inadmissible statements, the recording of the DRE test and the evidence of the inadmissible test results themselves may well have contributed to the conviction, it cannot be said that the erroneous admission of that evidence was harmless … . People v Green, 2016 NY Slip Op 05399, 3rd Dept 7-7-16

 

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