VICTOR — There were indications the DWI case of former state Assembly Minority Leader Brian Kolb was nearing the finish line.
However, that changed Thursday after an appearance in Victor Town Court.
In a written decision capsulized orally in court, Penfield Judge James Mulley Jr., who is presiding over the case, has reopened a suppression hearing.
The hearing, which was held in May, included testimony from Ontario County sheriff’s Deputy Ian Hall, who arrested Kolb on New Year’s Eve 2019 near Kolb’s home on County Road 41. That was after Kolb’s SUV ended up in a ditch and Kolb called for a tow truck, with the tow truck driver later calling police.
Hall testified that Kolb was in the vehicle when he arrived, but stumbled after getting out and showed signs of impairment. Hall said Kolb failed field sobriety tests at the scene and was taken to the county jail for a breath test.
The deputy who administered the test, Dustin Heininger, testified that Kolb’s blood-alcohol level was 0.16%, twice the legal limit for driving.
Mulley is reopening the hearing for two main reasons, both related to discovery — the formal process of exchanging information between the prosecution and defense about evidence that could be used at trial. Kolb’s attorney, Chris Schiano, has argued the breathalyzer report was not turned over in a timely manner.
Mulley noted that Yates County District Attorney Todd Casella, special prosecutor in the case, did not act in bad faith and made diligent efforts to make sure there was a free flow of information from the Ontario County sheriff’s office to the prosecution.
In his written decision, Mulley wrote that “he (Casella) stated ‘I had more conversations than I could count’ with a lieutenant and the sheriff himself regarding the flow of information in this case. Despite those efforts, the breathalyzer report was not shared with him (Casella).”
Mulley added that the report, from the state Department of Criminal Justice Services, was sent to an online portal Casella did not have access to but the sheriff’s office did. Once Casella had that information, he turned it over.
The other reason for the hearing reopening is conflicting information that Hall took handwritten notes when he talked to Kolb near his home. Mulley said if there are notes they should be turned over to Schiano as Rosario material — written or recorded material that can be used at trial.
“Those notes are clearly Rosario material if they exist,” Mulley said. “These are substantial issues in this case.”
Mulley said he would set a date for reopening the hearing after checking with the attorneys on their schedules. It will likely be in November.
Schiano is also challenging results from the breathalyzer, noting the machine malfunctioned several months earlier.
Kolb resigned as Assembly Minority Leader, a position he had held since 2009, three days after his arrest and apologized for a “terrible lapse in judgment.” About a month later, he said he would not run again for the 131st Assembly District seat he had occupied since 2000.