VICTOR — A judge assigned to former state Assemblyman Brian Kolb’s 2019 driving-while-intoxicated case has dismissed a statement he made to Ontario County sheriff’s office investigators.
Penfield Judge James Mulley Jr. announced Thursday in Victor Town Court that he had dismissed a statement Kolb made to investigators because he had not been read his Miranda rights, said Todd Casella, the Yates County district attorney prosecuting the case for the Ontario County District Attorney’s Office.
Kolb’s attorney, Chris Schiano, asked Thursday that the case against Kolb be dismissed on grounds that his client has been denied the right to a speedy trial and also for the delayed turnover of information regarding the modem calibration of a breathalyzer used on Kolb, which indicated a blood alcohol level of .16, twice the legal limit for DWI. The argument is related to new state laws regarding supplemental discovery, Casella said.
The changes in discovery laws generally require the turnover of evidence concerning the calibration of instruments from six months before a test and six months after a test. The complained of evidence was the modem calibration of the breath test instrument that occurred with the six month period after Kolb’s test.
Casella said he turned over the evidence on the breathalyzer to the defense as soon as he was made aware of it, but he was not provided it by the Oswego County Sheriff’s Office when it was received. He did not go into detail on the evidence turned over to Kolb’s defense.
Schiano claims the breathalyzer used by the sheriff’s office had malfunctioned earlier in 2019.
As for the question of whether Kolb has been denied the right to a speedy trial, Casella disagreed, pointing out that COVID-19 forced courts to be closed for a significant period of time in 2020.
Casella said Mulley will issue a ruling on the matters in September, including the request for a dismissal of charges against Kolb.