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DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON THE INTOXICATION DEFENSE; DEFENDANT SHOULD HAVE BEEN ALLOWED TO ATTEMPT TO LAY FOUNDATIONS FOR THE ADMISSION OF POLICE AND DISTRICT ATTORNEY BUSINESS RECORDS IN SUPPORT OF HIS INTOXICATION DEFENSE; NEW TRIAL ORDERED DESPITE DEFENDANT’S COMPLETION OF HIS SENTENCE (SECOND DEPT).

The Second Department, reversing defendant’s forcible touching and sexual abuse convictions and ordering a new trial, despite defendant’s having completed his sentence, determined defendant was entitled to a jury instruction on the intoxication defense, and defendant was wrongly precluded from attempting to lay foundations for the admission of certain police and district-attorney’s-office business records supporting the intoxication defense:

The defendant also sought to introduce as a business record a Desk Appearance Ticket Investigation form (hereinafter the DAT form) which contains information from the arresting officer at the time of the arrest. Specifically, the DAT form contains the arresting officer’s notation, “intox,” and a box checked by the arresting officer indicating “under the influence of drugs/marihuana to the degree that he may endanger himself or others.” The arresting officer testified that he had completed the form in his own handwriting. As the defendant contends, the trial court should have allowed the defendant to introduce the DAT form as an admissible business record of the Police Department … . …

The defendant likewise sought to introduce an Early Case Assessment Bureau sheet (hereinafter the ECAB sheet) apparently created by the Police Department or the District Attorney’s office, as well as the testimony of the individual who created it to establish the foundation for its admission as a business record. The ECAB sheet supports the defendant’s request for an intoxication charge and also provides a basis for impeachment of the arresting officer’s testimony as to his perceptions of the defendant’s condition at the time of the arrest.  * * *  Had the defendant been permitted to explore the circumstances under which the ECAB sheet was created, the defendant may have established that the statements contained in the ECAB sheet were admissible for the truth of those statements … . People v Sabirov, 2020 NY Slip Op 03378, Second Dept 6-17-20

 

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