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Withdrawal of Guilty Plea because of DA's failure to advise defense counsel of contaminants on the I

People of the State of New York v. Jonna W. Kull 2012NA023195

The Nassau County District Attorney’s Office waited until after defendant Jonna Kull pled guilty to inform her, as required, that the Intoxilyzer used “had a contaminant on it.” The defendant was charged with DWI and unsafe lane change. Defense counsel originally moved pursuant to CPL 440.10(1)(b),(g) and (h) but the Court considered the application as one to withdraw the defendant’s guilty plea pursuant to CPL 220.60(3).

Defendant pled guilty on June 13, 2013 and the District Attorney waited until December 5, 2013 to inform defendant of outstanding Brady material. The Court found that “[n]otwithstanding this notification from the District Attorney to the defendant’s attorney on December 5, 2013, it is uncontested that a ‘Service Work Order’ had been requested by the police, of the manufacturer, CMI, Inc. on May 1, 2013, some six (6) weeks before the defendant’s guilty plea was entered.

“Clearly, the police department and District Attorney had knowledge of a contamination issue regarding the Intoxilyzer 5000 EN that was used to obtain a BAC of the defendant’s breath prior to the defendant’s guilty plea, and they failed to disclose this information to the defendant. This information, if it had not been improperly withheld from the defendant and her counsel, would have permitted the defendant the opportunity to evaluate the strength of the evidence regarding the reliability of the Intoxilyzer used to obtain the defendant’s BAC, prior to pleading guilty.”

In sum, the Defendant’s motion to withdraw her previously-entered guilty plea is granted.

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