As many of you know, there have been several recent decisions in New York City Criminal Court in which courts have been admitting the PBT into evidence at trial.  In a prior issue of this newsletter this issue was discussed and those that are interested can contact me via e mail for my lengthy handout that accompanies my CLE on the topic.

On April 29, the Appellate Term, First Department handed down a decision in People v. Turner 2015 NY Slip Op 25140, which prosecutors are already citing for its apparent holding that the PBT was properly admitted at trial.  However a careful review of the decision reveals otherwise.  The Court stated: "The testing device utilized appears on the list of approved breath-testing  instruments compiled by the New York State Department of Health (see 10 NYCRR 59.4[b]), was shown to be in proper working order when the test was performed and the test was properly administered (see People v Boscic, 15 NY3d 494, 498, 938 N.E.2d 989, 912 N.Y.S.2d 556 [2010]; People v Murphy, 101 AD3d 1177, 1178, 956 N.Y.S.2d 207 [2012]). In any event, even assuming the trial court erred in admitting the challenged evidence, the error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guil."  (emphasis supplied).

Defense counsel should still be objecting to the admission of such results arguing that People v. Kulk, 103 AD3D 1038, an Appellate Division case is still binding (it was not even cited to in Turner); and the language in Turner is dicta since the Court held that if any error occurred it was harmless.