Opinion
1173-05.
Decided December 7, 2005.
Todd J.W. Wisner, Esq., Attorney for Defendant.
Casey Spencer, Esq., Assistant District Attorney, for plaintiff.
On January 15, 2005, the defendant was given appearance tickets charging him with speeding in violation of V.T.L 1180(d), Per Se Driving While Intoxicated, in violation of V.T.L. 1192(2) and Common Law Driving While Intoxicated, in violation of V.T.L. 1192(3). On March 2, 2005 the defendant appeared with his attorney for arraignment. At that time the case was adjourned for argument of motions on April 16, 2005, whereupon requests for probable cause and Huntley hearings were granted. Said hearings were conducted on June 24, 2005. At the conclusion of said hearings, the court denied the relief requested by the defendant and the matter was set down for a bench trial, which was conducted on November 18, 2005.
Facts of the Case.
At said bench trial the people presented two witnesses, i.e. Webster Police Officer Michael Burns, who was the arresting officer and Monroe County Sheriff's Deputy, Robert Long, who was the breath test operator. Officer Burns testified that the defendant was operating his motor vehicle in an eastbound direction on Route 404 in the Town of Webster on January 15, 2005 at approximately 2:03 A.M. At the same time Officer Burns was operating his marked police vehicle in a westbound direction on the same road. The officer observed said vehicle was heading toward him at what appeared to be a high rate of speed. The officer estimated that the defendant was traveling at 58 miles per hour in a 40 mile an hour zone. Officer Burns testified that his radar unit registered the defendant's speed at 55 miles per hour. The officer then turned his vehicle around, turned on his emergency lights and began to pursue the defendant in an eastbound direction. The defendant made a right hand turn on to Shoecraft Road and then a left hand turn into the Eckerd Drugstore parking lot. Because the defendant took, what appeared to the officer, to be an unusual amount of time to stop his vehicle, Officer Burns ordered the defendant from his vehicle at gunpoint. At that time the officer observed that the defendant had red and blood shot eyes, that there was an odor of alcoholic beverage coming from the defendant's mouth and that the defendant's speech was slurred. Officer Burns then advised the Defendant of his Miranda rights as he patted him down. The defendant agreed to speak to the officer, and indicated that he had consumed a "couple of beers" and that he had taken some Sudafed. The defendant also advised the officer that he was not taking any other medication, that he had no physical disabilities and that he was employed as an engineer at the Ginna Nuclear power plant. Upon determining that the defendant was not a threat to him, Officer Burns holstered his weapon. However, based on his observations of the defendant, Officer Burns asked the defendant to perform certain roadside tests.
The first roadside test was the alphabet test. The defendant was asked to say the alphabet from the letter "c" to the letter "v". However the defendant said "c" and then said "v". Upon being given a second chance the defendant recited the entire alphabet from "A" to "Z". As a result, Officer Burns testified that the defendant failed the alphabet test.
The officer asked the defendant to perform the "walk and turn" test. However, Officer Burns testified that the defendant did not always touch heal to toe as required, stepped off the yellow line that was being used, raised his arms and turned the wrong way. Thus Officer Burns testified that the defendant failed this test.
Lastly the defendant then performed the "one leg stand" test. However, Officer Burns ndicated that the defendant failed to keep either leg off the ground for thirty seconds and that the defendant swayed and hopped on both feet. Thus, Officer Burns testified that the defendant failed to properly perform this test as well.
Based on his observation of the defendant and the defendant's performance on the roadside tests, Officer Burns handcuffed and arrested the defendant. Whereupon the defendantwas transported to the Monroe County Sheriff's A-Zone, so that a breath test could beconducted.
A Webster Police breath test operator was not available at that time.
On cross examination, the officer indicated that the defendant did not signal his right turn on to Shoecraft Road. However, the officer indicated that while exiting his vehicle the defendant did not lean on his car or the police car. The defendant did not fall or stagger at any time. The defendant was described as being cooperative and understanding the instructions given him by the officer. Officer Burns stated the defendant was able to recite the entire alphabet, that he took the appropriate number of steps in the walk and turn test, that during the "heal-to-toe" test, the defendant touched heal-to-toe a majority of the time, and that during the one leg stand, which was performed twice, the defendant properly stood at attention and held each foot six inches off the ground as required.
Deputy Robert Long was then called to the stand. The parties stipulated to the deputy's certification as a breath test operator. The deputy testified to properly observing the defendant for twenty minutes. During the course of said direct testimony, the People had Deputy Longidentify the Operational Checklist, the Weekly Simulator Test Record, the Certification of Calibration, and the Certificate of Analysis of the Simulator Solution. After each such document was marked and identified by the Deputy as a business record kept in the regular course of business, pursuant to C.P.L.R. 4518(a), the prosecutor offered each document into evidence. The defense attorney agreed to each document being entered into evidence subject to cross-examination. As a result, said documents were entered into evidence subject to said condition. The deputy then testified that the "Datamaster" in question was operating properly and that the results of the test was a .15% BAC.
People's Exhibit 3.
People's Exhibit 4.
People's Exhibit 5.
People's Exhibit 6.
On cross-examination defense counsel asked the deputy if he had any connection to the preparation of People's Exhibits 3, 4, 5 and 6, i.e. the breath test foundation documents. The deputy testified that he was not involved in the preparation of any of said documents. As a result, the defense attorney objected to the entry of said documents as violating the defendant's right to confront the witnesses against him, pursuant to the United States and New York State Constitutions. The court reserved on said motion and the trial continued.
The People did not present any further witnesses. The defense announced that it would not be calling any witnesses. As a result of both sides resting their case, closing arguments were presented and the court reserved on the verdict.
Question of Law Presented.
Would the admission of the breath test foundation documents violate the defendant's right to confront the witnesses against him?
Legal Analysis.
The right to confront one's witnesses is secured by the Sixth Amendment to the United States Constitution and by Article 1, Section 6 of the New York State Constitution. This particular issue has been a matter of some recent intense scrutiny, especially as same relates to breath test foundation documents. Much of the controversy can be traced to the recent United States Supreme Court Decision of Crawford v. Washington, (2004) 541 U.S. 36, 124 S.Ct. 1354, which dealt specifically with the confrontation issue. Again, on the local level, the question has become whether or not the admittance of the breath test foundation documents as business records, which are in fact hearsay, and which are admitted into evidence as an exception to the hearsay rule, pursuant to C.P.LR. Section 4518(a), violate the defendant's right to confront the witnesses that testify against him.
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted by the witnesses against him". U.S. Constitution, Amendment VI. "In any trial court whatever the party accused shall be allowed to appear and defend in person and with counsel . . . and be confronted with the witnesses against him or her. N.Y.S. Constitution, Article 1, Section 6.
See People v. Orpin, (2005) 8 Misc 3d 768, 796 NYS2d 512 wherein Irondequoit Town Justice John L. DeMarco held that admission of breath test foundation documents as business records would violate the defendant's confrontation rights under the Sixth Amendment to the U.S. Constitution. However, in a case decided subsequently, City Court Judge Thomas Rainbow Morse of Rochester City Court in People v. Fisher (2005) 9 Misc 3d 1121(A), 2005 WL 2780686 (N.Y. City Civ.Ct.) held that "The DWI foundational documents are not 'testimonial' under the Confrontation Clause and are admissible as business records. . . ."
The U.S. Supreme Court in Crawford v. Washington, (2004) 541 U.S. 36, 124 S.Ct. 1354, 1374, distinguished between testimonial and nontestimonial hearsay evidence. In a case where the hearsay is testimonial in nature a higher standard is required. In order to admit said testimonial hearsay evidence ". . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford v. Washington 124 S.Ct. at 1374. However, if the hearsay offered is "nontestimonial" in nature, then it may be admitted under an exception to the hearsay rule. Ibid. at 1374. Nevertheless, the court did not specifically define what it considered "testimonial". The Court did state that
"Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practice with closest kinship to the abuses at which the Confrontation Clause was directed." Ibid. at 1374.
The Crawford case dealt with a tape recorded statement, not foundational breath test documents. Thus a review of that case begs the question as to whether foundational breath test documents are testimonial or nontestimonial. However, testimony has long been defined as "Evidence given by a competent witness, under oath or affirmation; as distinguished from evidence dervied from writings and other sources." Black's Law Dictionary (4th Edition 1968) page 1046.
In People v. Orpin (2005) 8 Misc 3d 768, 773, 796 NYS2d 512, 516 the court held that the breath test documents were prepared with the intent of using them in a criminal case. The court determined that "It is difficult to conceive of any purpose in preparing these documents other than for use in DWI trials." Orpin at 773, 516. As a result the breath test documents were considered "testimonial in nature" and not admissible as under any exception to the hearsay rule, because admission of said documents would violate the Confrontation Clause.
In People v. Fisher (2005) 9 Misc 3d 1121(A), 2005 WL 2780686 (N.Y.City Civ.Ct), 2005 NY Slip Op. 51726(U) the Court specifically determined that breath test foundational documents were not testimonial in nature. Ibid at 2005 WL 2780686 at **6. The court noted that The calibration certificate and certification of analysis of the simulator solution relate to tests performed well before the defendant was stopped for DWI by the Rochester Police Department and later given a breath test by the Monroe County Sheriff's Deputy." Thus the court opined that nobody associated with the preparation of said documents could be said to be "bearing 'witness against'" the defendant in said preparation. The court also determined that the simulator solution test logs were also nontestimonial. The basis for the Court's finding was that "The tests were performed routinely and were scheduled irrespective of the administration of the defendant's breath test." Thus, the court held that assuming the particular document in question, i.e. the breath test foundation document, satisfied the requirements of C.P.L.R. 4518(a), it could be admitted under the business records exception to the hearsay rule, without violating the Confrontation Clause.
Ibid.
Ibid.
Ibid.
Ibid.
It is well established law in this state that a business document prepared by a public employee that reports the results of a recognized scientific test is, if it complies with all the statutory requirements, admissible as a business record. People v. Nisonoff (1st Dept. 1944) 267 A.D.356, 45 NYS2d 854. The key to admission of such business records has been that the results of the test or procedure being reported did not involve ". . . the exercise of judgement and discretion, expressions of opinion, and making conclusions. . . ." In other words a nontestimonial document contains the results of a particular well recognized test or procedure and/or sets out an objective finding, which would have been observed and recorded by any trained individual in that field. On the contrary, the business record could be testimonial if it contains the results of a test or procedure which could be interpreted subjectively. In such a situation the preparer of said document would have to be produced to undergo cross-examination, in order that the defendant's Sixth Amendment right of confrontation not be violated. Thus, even though a testimonial document may be a valid business record pursuant to C.P.L.R. 4518(a), its admittance into evidence, without the production of the preparer of said document to testify as to the contents of same, would violate the defendant's right to confront the witnesses against him. People v. Fisher, 2005 WL 2780686 at **9.
Ibid at 369, 864.
In People v. Nisonoff, 1st Dept. 1944) 267 A.D.356, 45 NYS2d 854, an autopsy report, prepared by a doctor who died prior to the start of a murder trial, was admitted into evidence because the cause of death was sufficiently proven by other evidence. As a result, it was determined that the report did not violate the defendant's right to confront witnesses. Presumably, the autopsy report would not have been admitted, if the report was the only basis for the conviction.
More specifically, testimonial documents contain, but are not limited to, the following characteristics: i.e. they are sworn to or affirmed; they have been prepared exclusively for litigation purposes; they are directed at a specific individual; or they address the facts in controversy in such a way that they are subject to interpretation or explanation. Thus documents such as affidavits and supporting depositions would be testimonial, and could not be entered into evidence, even if they could be classified as a business records, unless the deponent was subject to cross-examination by the defendant. However, it is important to note that documents that are neither sworn to or affirmed can be testimonial in nature if they contain one or more of the testimonial characteristics. On the other hand, documents made in the ordinary course of business by a public entity, without a specific individual in mind and which purport to record the results of an objective test or process, as is the case with breath test foundation documents, would normally be considered to be nontestimonial in nature. See Crawford v. Washington, (2004) 541 U.S. 36, 124 S.Ct. 1354, People v. Fisher (2005) 9 Misc 3d 1121(A), 2005 WL 2780686 (NY City Civ.Ct.), and People v. Nisonoff, 1st Dept. 1944) 267 A.D.356, 45 NYS2d 854.
See in particular People v. Fisher (2005) 9 Misc 3d 1121(A), 2005 WL 2780686 at **9 (N.Y.City Civ.Ct.), which refers to a Data Master Evidence Ticket and a blood test report as documents which, although neither sworn to or affirmed, were prepared for the trial at hand and dealt directly with a specific defendant, which made them testimonial documents.
The Appellate Division in People v. Nisonoff, (1st Dept. 1944) 267 A.D.356, 369, 45 NYS2d 854, 864 stated that
"'The determination of the percentage of alcohol in liquor at a specified temperature is the ascertainment of a fact by well recognized scientific processes. Chemical action and measurement in such an analysis do not depend in general upon the quickness of apprehension, retentiveness of memory, temperament, surmises or conjectures, of the individual. The admission in evidence of the record of such a fact made by a public officer pursuant to statutory obligation would be as likely to be accurate as many of the public records which have been held to be admissible. There would seem to be as little likelihood of variation of result in such an analysis between different chemists as in the observation of the weather, enumeration of proprietors, or the notation of the weights on scales by other classes of public officers. * * *' page 417 of 245 Mass., page 469 of 140
N.E., 29 A.L.R. 281."
However, even if some issue or irregularity is raised by one of the parties relative to a document, which is considered to be nontestimonial, the document should be admitted, assuming it complies with C.P.L.R. 4518(a). Such issue or issues ". . . shall affect its weight, but shall not affect its admissibility." C.P.L.R. 4518(a). See Also, People v. Dailey, (4th Dept. 1999) 260 AD2d 81, 700 NYS2d 307.
Conclusion.
A. Objection to Admittance of Foundation Breath Test Documents.
The foundation breath documents herein, i.e. the Operational Checklist, the Weekly Simulator test record, the Certificate of Calibration and the Certificate of Analysis of the Simulator Solution, are nontestimonial documents. Said documents were made in the regular course of business, by a government agency. They were prepared without a particular individual in mind. They report the results of objective tests or measurements, which by definition are not subject to interpretation. Said documents are valid business records as defined by C.P.L.R. 4518 (a). As a result, admittance of said foundation breath test documents, without requiring the preparer of those documents to appear and testify at the trial, would not violate the defendant's Sixth Amendment right to confront the witnesses against him. Thus, defendant's objection to the admittance of the breath test foundation documents is hereby overruled, and the documents are received into evidence.
B. Charge of Speeding pursuant to V.T.L. 1180(d) 55/40.
The people have sustained their burden of proof relative to the charge of Speeding in violation of V.T.L. 1180(d). The evidence shows beyond a reasonable doubt that the defendant was operating his vehicle at the speed of 55 miles per hour in a posted 40 mile an hour zone at the date, time and place alleged.
C.P.L. 70.20 sets out the standard of proof for conviction.
C. Charge of Common Law Driving While Intoxicated in Violation of V.T.L. 1192(3).
The people have established by proof beyond a reasonable doubt that the defendant operated his vehicle in an intoxicated condition. The fact that the defendant was speeding does not in and of itself prove that the defendant was intoxicated. Nevertheless, upon stopping the vehicle the officer observed some of the standard physical indicia of intoxication. In addition, the defendant failed to properly perform any of the roadside tests and admitted to consuming alcohol prior to driving his vehicle. Based on the totality of the facts and circumstances herein, I find the defendant guilty of common law driving while intoxicated in violation V.T.L. 1192 (3).
D. Charge of Per Se Driving While Intoxicated in Violation of V.T.L. 1192(2).
Based on the defendant's physical condition as testified to by Officer Burns and the results of the breath test, indicating blood alcohol count was .15% BAC, the People have proven their case beyond a reasonable doubt that the defendant was guilty of Per Se, Driving While Intoxicated in violation of V.T.L. 1192(2).
"People v. Mertz, 68 NY2d 136, 146, 506 NYS2d 290, 295 497 NE2d 657 (1986), makes clear that a chemical test result, without more (such as 'evidence of one or more of defendant's deportment, speech, stability and the odor of his or her breath'), is in and of itself insufficient to sustain a conviction of violating VTL 1192(2)." Handling the DWI Case in New York, (2004-05 Edition) Section 37:5.
This constitutes the decision and order of this court this Court. This matter is restored to the disposition calender to set a sentencing date.