People v Cannon (Kevin)

[*1] People v Cannon (Kevin) 2005 NY Slip Op 51698(U) [9 Misc 3d 136(A)] Decided on October 20, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
2004-1140 S CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

KEVIN CANNON, Appellant.

Appeal from judgments of the District Court of Suffolk County, First District (John J. Toomey, Jr., J.), rendered July 14, 2004. The judgments convicted defendant, upon a jury verdict, of driving while intoxicated, failing to produce an insurance card and failing to produce a certificate of registration.

Judgment convicting defendant of driving while intoxicated unanimously reversed on the law and matter remanded to the court below for a new trial.

Judgments convicting defendant of failing to produce an insurance card and failing to produce a certificate of registration unanimously affirmed.

Defendant moved pursuant to County Law § 722-c for the appointment of an expert witness at public expense. Defendant's motion papers failed to make a sufficient showing that an expert witness was necessary and that extraordinary circumstances existed warranting an expenditure in excess of $1,000 for said expert witness (see People v Brand, 13 AD3d 820 [2004]; People v Dearstyne, 305 AD2d 850 [2003]; People v Brown, 136 AD2d 1 [1988]). Accordingly, the lower court did not abuse its discretion in denying defendant's motion.

However, the lower court committed reversible error when it precluded defendant's expert witness from testifying at trial, with regard to the driving while intoxicated charge, on the ground [*2]that defendant failed to serve the People with proper expert disclosure pursuant to CPLR 3101 (d). Article 240 of the Criminal Procedure Law sets forth the rules regarding disclosure in criminal cases and, therefore, CPLR 3101 (d) is inapplicable to the case at hand (see CPL 60.10; People v Rossakis, 159 Misc 2d 611, 615 [Sup Ct, Queens County 1993]). Unlike CPLR 3101 (d), article 240 of
the Criminal Procedure Law does not require the defendant to provide the People with notice that one of his witnesses will be testifying as an expert, the background of the
expert or the subject matter of the expert's testimony. Accordingly, the judgment of conviction for driving while intoxicated is reversed and the matter remanded to the court below for a new trial with regard thereto.
Decision Date: October 20, 2005