| People v Cook |
| 2013 NY Slip Op 07885 [111 AD3d 1169] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v YancyD. Cook, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Stein, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered July 19, 2012, upon a verdict convicting defendant of the crimes ofaggravated driving while intoxicated and driving while intoxicated (two counts).
In May 2011, defendant was driving an all-terrain vehicle with his seven-year-oldson as a passenger. A State Trooper approached defendant, detected an odor of alcoholand observed that defendant had glassy eyes. Defendant admitted to the trooper that hehad been drinking alcohol and subsequently failed multiple field sobriety tests. As aresult, defendant was arrested and transported to the police station, where a breathalyzertest revealed that defendant had a blood alcohol content of .12%. Defendant thereafterwas charged with driving while intoxicated (two counts) and aggravated driving whileintoxicated. Following a jury trial, defendant was found guilty as charged and wassubsequently sentenced to four months in jail and a three-year conditional discharge,requiring him to install an ignition interlock device. Defendant now appeals, and weaffirm.
Defendant's sole argument on appeal is that his 6th Amendment right to confrontwitnesses was violated when County Court allowed the admission of the calibration andmaintenance records for the breathalyzer machine without requiring the People to call aswitnesses the individuals who signed those records. The maintenance records wereprepared by employees of the State Police Forensic Investigation Center and were kept inthe regular course of business. While defendant argues that the records were testimonialin nature because their [*2]purpose was to prove anelement of the crime at trial, the Court of Appeals has recently rejected this argument andheld "that documents pertaining to the routine inspection, maintenance and calibration ofbreathalyzer machines are nontestimonial under Crawford [v Washington(541 US 36, 53-54 [2004])] and its progeny" (People v Pealer, 20 NY3d 447, 456 [2013], certdenied 571 US —, 134 S Ct 105 [2013]; see People v Menegan, 107 AD3d 1166, 1168 [2013]; People v Hulbert, 93 AD3d953, 954 [2012]).[FN*]Accordingly, the admission of these records did not violate defendant's rights under theConfrontation Clause.
Peters, P.J., McCarthy and Spain, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: To the extent thatdefendant argues that two United States Supreme Court cases—Melendez-Diazv Massachusetts (557 US 305 [2009]) and Bullcoming v New Mexico (564US —, 131 S Ct 2705 [2011])—"trump[ ]" the Court of Appeals' holding inPealer, we note that both Melendez-Diaz and Bullcoming wereexplicitly addressed in Pealer (People v Pealer, 20 NY3d at 454-455).