The People of the State of New York, Respondent,
v.
Harold E. Williams, Appellant.
Court of Appeals of the State of New York.
Decided May 15, 1984.Peter A. Gorton for appellant.
Robert J. Simpson, District Attorney (Robert J. Eberz of counsel), for respondent.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
*766MEMORANDUM.
The order of the Appellate Division should be reversed, and a new trial ordered.
*767Defendant did not request a missing witness charge as to the prosecution's failure to call Deputy Shirley to testify and no reviewable issue is presented as to that matter. The prosecution, however, was not entitled to the charge, to which defendant objected, which expressly forbade the jury from drawing any negative inference from the prosecution's failure to call Deputy Shirley. Thus, the trial court's instruction on this issue was error.
Additionally, it was error on the part of the trial court, to which defendant took exception, to instruct the jury in effect that they could ignore the failure of the police to have administered the breathalyzer test in accordance with the rules and regulations of the Tioga County Sheriff's Department (Vehicle and Traffic Law, § 1194).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and a new trial ordered in a memorandum.