| People v Pealer |
| 2011 NY Slip Op 08397 [89 AD3d 1504] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert Pealer,Appellant. |
—[*1] Jason L. Cook, District Attorney, Penn Yan (Megan Peter of counsel), for respondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), rendered December8, 2009. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired anddriving while intoxicated.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, felonydriving while intoxicated ([DWI] Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [ii]),defendant contends that County Court erred in admitting in evidence breath test calibration andsimulator solution certificates (collectively, breath test documents) used in verifying the accuracy of thebreathalyzer test. According to defendant, the admission of those records in evidence violated his rightsunder the Confrontation Clause of the Sixth Amendment to the United States Constitution (seegenerally Crawford v Washington, 541 US 36, 50-54 [2004]). We reject that contention. Thesimulator solution certificate is a certified document indicating that a given sample of simulator solutioncontains a certain percentage of alcohol. The breath test calibration certificate is a certified documentindicating that a breath test machine accurately measured a given sample of simulator solution to withinplus or minus .01% weight per volume. Breath test calibration certificates are generated by employeesof the New York State Division of Criminal Justice Services, while simulator solution certificates aregenerated by employees of the New York State Police. Both are used to establish that the breath testmachine used in a particular case is accurate, a necessary foundational requirement for the admission ofbreath test results (see People v Mertz, 68 NY2d 136, 148 [1986]). Here, the People offeredthe breath test documents in evidence, and the court admitted them as business records pursuant toCPLR 4518 (c), over defendant's objection that such admission violated his right underCrawford to confront the government employees who certified the results.
The Confrontation Clause bars the admission of testimonial out-of-court statements made by awitness who is not subject to cross-examination (see generally Crawford, 541 US at 50-54; People v Brown, 13 NY3d 332, 338[2009]). The United States Supreme Court in Crawford explicitly declined "to spell out acomprehensive definition of 'testimonial' " (541 US at 68), but it stated that "some statements qualifyunder any definition[, including] ex parte testimony at a [*2]preliminary hearing [and s]tatements taken by police officers in the courseof interrogations" (id. at 52). Since Crawford was decided, courts have struggled tocome up with a comprehensive definition of the term "testimonial," but one factor that must beconsidered is the degree to which a statement is deemed accusatory, i.e., whether it "seeks to establishfacts essential to the elements of the crime[s]" (People v Encarnacion, 87 AD3d 81, 90 [2011]; see Melendez-Diazv Massachusetts, 557 US —, —, 129 S Ct 2527, 2532 [2009]; People v Rawlins, 10 NY3d 136,151-152 [2008], cert denied sub nom. Meekins v New York, 557 US —, 129 S Ct2856 [2009]).
Here, the statements contained in the breath test documents are not accusatory in the sense thatthey do not establish an element of the crimes. Indeed, standing alone, the documents shed no light ondefendant's guilt or innocence (see People vDamato, 79 AD3d 1060, 1061-1062 [2010]; see also People v Bush, 66 AD3d 1488 [2009], lv denied 13NY3d 905 [2009]). The only relevant fact established by the documents is that the breath testinstrument was functioning properly. The functionality of the machine, however, neither directlyestablishes an element of the crimes charged nor inculpates any particular individual. Thus, thegovernment employees who prepared the records were "not defendant's 'accuser[s]' in any but themost attenuated sense" (People vFreycinet, 11 NY3d 38, 42 [2008]), and the breath test documents were properly admitted inevidence over defendant's objection based on the Confrontation Clause (see Damato, 79AD3d at 1061-1062; People v Lebrecht, 13 Misc 3d 45, 47-49 [2006]; Green v DeMarco, 11 Misc 3d 451,465-468 [2005]).
Contrary to defendant's contention, this case is distinguishable from Bullcoming v NewMexico (564 US —, —, 131 S Ct 2705, 2710 [2011]), in which the Supreme Courtheld that the Confrontation Clause barred the admission in evidence of a forensic laboratory reportcertifying the defendant's blood alcohol content. In Bullcoming, the prosecution sought to admitevidence establishing that the defendant was intoxicated, which was an element of the crime charged(id. 564 US at — - —, 131 S Ct at 2709-2710). Here, in contrast, the breathtest documents were offered merely to show that the breath test machine functioned properly, which isnot an element of DWI. We note that the Supreme Court stated in Melendez-Diaz that"documents prepared in the regular course of equipment maintenance may well qualify as nontestimonialrecords" (557 US at — n 1, 129 S Ct at 2532 n 1). The breath test documents at issue here areprecisely the sort of documents to which the Supreme Court in Melendez-Diaz was referring.Although the footnote in Melendez-Diaz is dicta, we find it to be persuasive, and it is indicativeof how the Court would rule on the issue. It is also consistent with the Court of Appeals' interpretationsof the Confrontation Clause (see e.g. Freycinet, 11 NY3d at 41-42; Rawlins, 10NY3d at 152-154).
Defendant further contends that the court erred in refusing to suppress all evidence obtained by thepolice following the stop of his vehicle. We reject that contention. The arresting officer stoppeddefendant's vehicle because it had an unauthorized sticker on the rear window, in violation of Vehicleand Traffic Law § 375 (1) (b) (i). According to defendant, the stop was unlawful because theofficer's primary motivation in stopping the vehicle was to investigate an anonymous tip that defendantwas intoxicated, and the unauthorized sticker was a mere pretext to allow the officer to accomplish thatpurpose. Regardless of whether the stop was pretextual in nature, the court properly refused tosuppress the evidence in question. As the Court of Appeals has explained, "where a police officer hasprobable cause to believe that the driver of an automobile has committed a traffic violation, a stop doesnot violate [the state or federal constitutions, and] . . . neither the primary motivation of theofficer nor a determination of what a reasonable traffic officer would have done under thecircumstances is relevant" (People v Robinson, 97 NY2d 341, 349 [2001]; see Whren vUnited States, 517 US 806, 812-813 [1996]). We note that defendant does not dispute that hecommitted a traffic infraction in the officer's presence by having the unauthorized sticker on his vehicle'swindow.
We have reviewed defendant's remaining contentions and conclude that they are either [*3]unpreserved for our review or without merit. Present—Smith, J.P.,Carni, Lindley, Sconiers and Martoche, JJ.