People v Hulbert

2012 NY Slip Op 01698 [93 AD3d 953]

March 8, 2012

Appellate Division, Third Department

As corrected through Wednesday, April 25, 2012

The People of the State of New York, Respondent, v Brian H.Hulbert, Appellant.

—[*1]Bryan Konoski, Liverpool, for appellant.

John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.

Malone Jr., J. Appeal from a judgment of the County Court of Otsego County (Burns, J.),rendered October 15, 2010, upon a verdict convicting defendant of the crime of driving whileintoxicated (two counts).

Following a jury trial, defendant was convicted of two counts of driving while intoxicated,and he was thereafter sentenced to concurrent prison terms of 21/3 to 7 years. Henow appeals, contending solely that County Court erred in admitting into evidence two breathtest machine maintenance and calibration records and a simulator solution certification.According to defendant, the court's admission of these documents into evidence without alsoallowing him an opportunity to cross-examine the individuals who had prepared the documentsviolated his rights under the Confrontation Clause of the Sixth Amendment of the USConstitution. We disagree.

The Confrontation Clause of the Sixth Amendment prohibits the use of a testimonial hearsaystatement against a defendant unless the defendant is provided with an opportunity tocross-examine the witness (see generally Crawford v Washington, 541 US 36 [2004]). Tobe considered testimonial, the primary purpose of the statement must be to "establish or provepast events potentially relevant to later criminal prosecution" (Davis v Washington, 547US 813, 822[*2][2006]). For instance, it has been held thatstatements in "[a] document created solely for an 'evidentiary purpose,' . . . made inaid of a police investigation, ranks as testimonial" (Bullcoming v New Mexico, 564 US—, —, 131 S Ct 2705, 2717 [2011], quoting Melendez-Diaz vMassachusetts, 557 US 305, —, 129 S Ct 2527, 2532 [2009]). On the other hand,statements in "[b]usiness and public records are generally admissible absent confrontation. . . because—having been created for the administration of an entity's affairsand not for the purpose of establishing or proving [a] fact at trial—they are nottestimonial" (Melendez-Diaz v Massachusetts, 557 US at — -—, 129 S Ct at2539-2540).

Here, the documents at issue, which were not created solely for the purpose of prosecutingdefendant, contained statements that the breath test machine had been routinely tested to ensurethat it accurately measured a sample of simulator solution and also contained an analysis of thesimulator solution that had been used. While the statements in these documents provided a"necessary foundational requirement for the admission of [the] breath test results," they "are notaccusatory in the sense that they do not establish an element of the crimes . . . [and],standing alone, the documents shed no light on defendant's guilt or innocence" (People v Pealer, 89 AD3d 1504,1505 [2011]; compare Bullcoming v New Mexico, 564 US —, 131 S Ct 2705[2011] [the defendant challenged a certified laboratory result reporting that alcohol had beenfound in a sample of his blood]; Melendez-Diaz v Massachusetts, 557 US 305 [2009][the defendant challenged a certified laboratory result reporting that cocaine had been found in asample of his blood]). Thus, inasmuch as the documents challenged by defendant hereestablished only that the breath test machine had been maintained and was functioning properly,and did not directly prove an element of the crimes with which defendant was charged, they wereproperly admitted into evidence (see People v Pealer, 89 AD3d at 1505; see alsoMelendez-Diaz v Massachusetts, 557 US at — n 1, 129 S Ct at 2532 n 1 ["documentsprepared in the regular course of equipment maintenance may well qualify as nontestimonialrecords"]; People v Brown, 13NY3d 332, 339-340 [2009]).

Mercure, A.P.J., Rose, Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.