Opinion
November 4, 1983
Appeal from the Cattaraugus County Court, Crowley, J.
Present — Dillon, P.J., Doerr, Boomer, O'Donnell and Schnepp, JJ.
Order reversed and matter remitted to Cattaraugus County Court for further proceedings, in accordance with the following memorandum: Defendant was arrested and charged with driving while intoxicated. During the ensuing Huntley hearing, the arresting officer testified that he discarded the handwritten notes he had made at the time of the arrest under the mistaken impression that the matter had been disposed of. Based upon the failure of the prosecution to produce the notes, the court suppressed the officer's testimony. The People appeal from the order of suppression and we reverse. Here, as in People v Paranzino ( 40 N.Y.2d 1005) and People v Perez ( 50 A.D.2d 908), there is no suggestion that the officer destroyed his notes in bad faith to frustrate the defendant's right to cross-examination. The matter is remitted to the suppression court for determination of the motion to suppress defendant's statements and his refusal to take a breathalyzer test. All concur, except Doerr and Schnepp, JJ., who dissent and vote to affirm.