The People, Respondent,v.Roy S. Kangas, Appellant.

Brief

N.Y.September 14, 2016

APL-2015-00180 To be argued by Mark C. Curley (15 minutes Requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROY S. KANGAS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT Mark C. Curley, Esq. Leonard & Curley, PLLC Attorneys at Law 205 W. Court Street Rome, New York 13440 Tele: 315.336.1410 Fax: 315.336.1434 i TABLE OF CONTENTS PAGE Table of Authorities ...........................................................................................................................ii Preliminary Statement ........................................................................................................................1 Question Presented.............................................................................................................................1 Statement of Facts ..............................................................................................................................2 Argument Point I THE PEOPLE FAILED TO ESTABLISH A PROPER FOUNDATION FOR THE ADMISSION OF THE 0.10% SIMULATOR SOLUTION RECORD AND THE DATAMASTER CALIBRATION/MAINTENANCE RECORDS. .................................................4 A) The admission of exhibits #7 and #8 as business records of the Oneida County Sheriff’s Office was error requiring reversal. ...............................................5 B) The admission of representations of electronic records without proper foundation was error requiring reversal. ................................................................................7 C) Photocopies of the authenticating certificates of John Digman were insufficient to establish a proper foundation for the admission of the DataMaster calibration/maintenance records, error requiring reversal. .................................14 Point II ON APPEAL THE COUNTY COURT ERRED IN FINDING THAT STATE AGENCIES ARE EXEMPT FROM THE REQUIREMENTS OF CPLR §4539(B). ..........................................15 Point III ON APPEAL THE COUNTY COURT ERRED IN FINDING THAT CPLR §4539(b) ONLY APPLIED TO DOCUMENTS THAT WERE ORIGINALLY IN HARD COPY. .............15 Conclusion .........................................................................................................................................16 ii TABLE OF AUTHORITIES Page Cases Am. Exp. Bank, FSB v Zweigenhaft, 38 Misc 3d 1218(A) (Civ Ct 2013) ........................................13 Am. Exp. Centurion Bank v. Badalamenti, 30 Misc 3d 1201(A) (NY Dist Ct 2010) .......................8, 13 Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577 (1998) .........................................12 Midland Funding LLC v. Loreto, 34 Misc 3d 1232(A) (Civ Ct 2012) ..............................................10-11 Bank Hapoalim B.M. v. WestLB AG, 121 AD3d 531 (1 st Dep’t. 2014) ...........................................7 People v. Brown, 128 Misc 2d 149 (NY Co Ct 1985). ....................................................................14 People v. Burdick, 72 AD3d 1399 (3 rd Dep’t 2010) ..........................................................................6 People v. Cratsley, 86 NY2d 81 (1995) .............................................................................................6 People v. Hernandez, 31 Misc 3d 208 (Rochester City Ct 2011) ......................................................10 People v. Mertz, 68 NY2d 136 (1986). ............................................................................................5 People v. Rath, 41 Misc 3d 869 (NY Dist Ct 2013) ..........................................................................11 People v. Sykes, 167 Misc 2d 588 (Sup Ct 1995) .............................................................................14 Patrolmen's Benev. Ass'n of City of New York v City of New York, 41 NY2d 205 (1976) ............12 Statutes CPLR 2307.........................................................................................................................................4 CPLR §4518.......................................................................................................................................passim CPLR §4539.......................................................................................................................................passim State Technology Law §302 ..............................................................................................................7, 8 State Technology Law §306 ..............................................................................................................passim Other Authorities 4 N.Y. Jur. 2d Appellate Review §606 ..............................................................................................7 NYSDCJS revised authenticating certification of electronic records ................................................end at “A” Handling the DWI Case in New York § 43:1 ....................................................................................4 Letter from Senator Kemp Hannon Bill Sponsor ..............................................................................end at “B” 1 PRELIMINARY STATEMENT By leave of the Honorable Leslie E. Stein, granted June 25. 2015 1 , Appellant Roy S. Kangas appeals from the February 25, 2015 decision and order of the County Court, Oneida County, affirming a judgment of the Rome City Court, rendered November 13, 2013, convicting the Appellant, after a jury trial of Driving While Intoxicated, per se with a BAC of .08% or Greater, in violation of Vehicle and Traffic Law §1192(2), a misdemeanor, and sentencing him to a $500 fine, $390 surcharges, a one year conditional discharge, ignition interlock and six month revocation of NYS driving privileges. The questions presented on this appeal were preserved by defense counsel. (A. 153-156) QUESTIONS PRESENTED 1. Whether the trial court erred in admitted breath test documents under the business records exception to hearsay because: A. The documents were not made and kept in the ordinary course of business of the offering agency. B. The certifications offered were photocopies and were not sufficiently authenticated. C. There was no testimony from anyone having personal knowledge of how the records were made or kept. 2. Whether the trial court erred in admitting representations of electronic records without proper foundation, namely: A. Competent testimony or affidavit establishing that the electronic record does not permit additions, deletions or changes without leaving a record of such alterations. B. Competent testimony or affidavit establishing the manner and means whereby tampering and degradation is prevented. 3. Whether the appellate court erred in finding that state agencies are exempt from the requirements of CPLR §4539(b). 4. Whether the appellate court erred in finding that CPLR §4539(b) only applies to documents that were originally hard copies. 1 The Order Granting Leave to Appeal is reprinted in the Appellant’s Record at A.2. Citations to the Appellant’s Record are in parentheses preceded by “A.” 2 STATEMENT OF FACTS On July 20, 2012 Roy S. Kangas [Kangas] was arrested by members of the Oneida County Sheriff’s Department and charged with Aggravated Driving While Intoxicated [VTL §1192(2-a)], Driving While Intoxicated [VTL §1192(3)] and Failure to Signal a Turn [VTL §1163]. A jury trial was commenced on August 8, 2013 in Rome City Court [Hon. Daniel Wilson] (A. 33-277). The charge of Aggravated Driving While Intoxicated [VTL §1192(2-a)] was dismissed (A. 105, 109). At trial the People offered two exhibits; Exhibit #7 (A. 156) and Exhibit #8 (A. 151) Attached to the face of Exhibit #7 was an original authenticating certificate of Oneida County Sheriff’s Office [OCSO] signed in ink by Records Clerk Katie Felshaw. (A. 23) Exhibit #7 consists of electronic records; including the 0.10% Simulator Solution Record made in the ordinary course of business of the New York State Police Forensic Investigation Center [NYSPFIC] (A. 24-25). Attached to the face of Exhibit #8 was a similar authenticating certificate of OCSO signed in ink by Records Clerk Felshaw (A. 26). Exhibit #8 consists of DataMaster calibration/maintenance records made in the ordinary course of business of the New York State Division of Criminal Justice Services [NYSDCJS] (A. 27-31). The authenticating certificates of Felshaw attached to both Exhibit #7 and Exhibit #8 erroneously claimed that the attached documents were photocopies of original records of the OCSO and that they were made in the regular course of business of the OCSO and that she had knowledge of the events recorded (A. 23, 26). Defense counsel objected that Exhibit #7 and Exhibit #8 were not business records of the OCSO (A. 153, 154), the authenticating certificates of the state agencies were photocopies, not originals (A. 154), and further that the electronic records failed to contain the required affidavit establishing that the documents were free from tampering (A. 156). The exhibits were admitted over defense counsel’s objection (A. 155, 157) 3 The jury returned verdicts of not guilty of Driving While Intoxicated [VTL §1192(3)] and Failure to Signal a Turn [VTL §1163]. The defendant was convicted of Driving While Intoxicated, per se with a BAC of .08% or Greater [VTL §1192(2)] 2 . Kangas timely appealed to the Oneida County Court. [Hon. Michael J. Dwyer] (A. 3-20). The defendant maintained that the certifications of OCSD Records Clerk Felshaw were erroneous, as the certification and 0.10% simulator solution record [Exhibit #7] and DataMaster calibration/maintenance records [Exhibit #8] were not made in the ordinary course of business of the OCSO. The defendant further argued that the certification and 0.10% simulator solution record were electronic records and the People did not satisfy their burden under State Technology Law §306 and CPLR §4539(b), as the authenticating certificate failed to include the manner or method by which tampering or degradation was prevented. Lastly the defendant maintained that authenticating certificates of the state agencies were photocopies, not originals. On appeal the People continued to maintain that the original documents of NYSPFIC and NYSDCJS were in the possession of OSCD and the “double certification process enhances authenticity”. The People further argued that CPLR §4539(b) does not apply to government agencies or government documents. Lastly, the People alleged that CPLR §4539(b) only applies to business records that were “originally in documentary form” and “optically scanned” for storage. The County Court agreed that certifications of OCSD Records Clerk Katie Felshaw were erroneous, as the records were not made in the ordinary course of business of the OCSO (A. 9). However, the County Court affirmed the defendant’s conviction finding that the authenticating certificates of Felshaw were not necessary for the admission of People’s Exhibits #7 and #8 (A. 2 The defendant was not charged with Vehicle and Traffic Law §1192(2) the charge was submitted to the jury under §1192(9). 4 9-20). The County Court, in essence, peeled away the false certification of Felshaw and examined the documents contained therein (A. 9). The County Court was of the opinion that Exhibit #7 was properly admitted as it contained a separate certification of Jennifer F. Limoges [Limoges], an employee of NYSPFIC (A. 13). The County Court concluded that even though Exhibit #7 was an electronic record NYSPFIC did not have to comply with CPLR §4539(b) as the statute only applies to “the record of a private entity” (A. 17). The County Court further held that the qualifying language of CPLR §4539(b) did not apply to Exhibit #7 because the document never existed in hard copy (A. 17-18). The County Court was also the opinion that Exhibit #8 was properly admitted as it contained a separate certification of John Digman [Digman] a supervisor at NYSDCJS. The County Court referenced CPLR §4518(c) and the cross reference to CPLR §2307 to establish that compliance with a subpoena for records from a department or bureau of a municipal corporation can be accomplished by the authenticating certification of a supervisor of a department (A. 10). The fact that the notarized authenticating certification of Digman was a photocopy did not alter the opinion of the County Court. It should be noted that Exhibit #7 and #8 were not obtained by judicial subpoena. Exhibits #7 and #8 appeared in Court from the briefcase of the prosecutor. I. THE PEOPLE FAILED TO ESTABLISH A PROPER FOUNDATION FOR THE ADMISSION OF THE 0.10% SIMULATOR SOLUTION RECORD AND THE DATAMASTER CALIBRATION/MAINTENANCE RECORDS. This appeal presents several questions relating to the admission of business records pursuant to CPLR §4518. The admissibility of documents has been described as “one of the most confusing, complicated, and contradictory areas of law confronting the trial lawyer.” Handling the DWI Case in New York § 43:1. This case was no exception. While the scientific reliability of breathalyzers in general is no longer open to question, “there must still be either 5 proper foundation testimony under CPLR §4518(a) or a proper CPLR §4518(c) certificate to establish that the particular instrument used to test a defendant's BAC and the ampoules used with it had been tested within a reasonable period in relation to defendant's test and found to be properly calibrated and in working order”. People v. Mertz, 68 NY2d 136, 148 (1986). In this case neither the 0.10% simulator solution record, nor the inspection/maintenance/calibration records were properly admitted. A. The admission of exhibits #7 and #8 as business records of the Oneida County Sheriff’s Department was error requiring reversal. CPLR §4518(a) codifies three foundational elements necessary to overcome a hearsay objection and admit a business record for the truth of its contents. It must be shown that: (1) the document or record was made in the regular course of business; (2) that it was the regular course of such business to make the record, and (3) that the record was made at or about the time of the event or within a reasonable time thereafter. The simulator solution record offered by the People at trial indicates that the testing was performed by Carrie A. Kirkton, an employee of the NYSPFIC, which is located in Albany, New York (A. 25). A second “Certification pursuant to CPLR 4518” was attached to copies of the original simulator solution record generated by and received from the NYSPFIC. The second certification stated that the Oneida County Sheriff’s Office, rather than the NYSPFIC, was in possession of the original simulator solution record and that the original record was made and kept in the ordinary course of business of the Oneida County Sheriff’s Office (A. 23). Admission of the records on this foundation was error. As with the simulator solution record, so with the inspection/maintenance/calibration records. The inspection/maintenance/calibration records indicate that the “necessary maintenance procedures” and calibration were performed by Michael J. Hess and Paul 6 Hasbrouck, employees of the NYSDCJS, Office of Public Safety, which is located in Albany, New York (A. 27-32). A second “Certification pursuant to CPLR 4518” was attached to copies of the original inspection/maintenance/calibration records generated by and received from the NYSDCJS. The second certification stated that the Oneida County Sheriff’s Office, rather than the NYSDCJS, was in possession of the original inspection/maintenance/calibration records and that the original records were made and kept in the ordinary course of business of the Oneida County Sheriff’s Office (A. 26). Admission of the records on this foundation was also error. The testing, inspection, maintenance and calibration were performed in state labs in Albany. What the OCSO had were copies. Contrary to the claim of the People, and OCSO Records Clerk Felshaw, simply possessing a copy of a document generated by another agency does not ipso facto transform that document in an original or business record under CPLR §4518. In People v. Cratsley, 86 NY2d 81 (1995) the New York Court of Appeals addressed this very issue: “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” Standard Textile Co. v. National Equip. Rental, 80 AD2d 911 (2 nd Dep’t. 1981); see also, Yachnin, The Business Record Rule—CPLR 4518(a)—Worth Learning and Never Forgetting, NYLJ, May 30, 1995, at 12, col 5 [objection for lack of foundation warranted when “the writing is a business record but received from another business entity”].” In People v. Burdick, 72 AD3d 1399 (3 rd Dep’t 2010) the Appellate Division reversed on a similar issue, finding that although the witness testified that she requested, received and filed these two reports in the normal course of business, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records,” because “[s]uch papers simply are not made in the regular 7 course of business of the recipient, who is in no position to provide the necessary foundation testimony”. On appeal of this case, the County Court agreed that the authenticating certificates of Felshaw, attached to Exhibits #7 and #8 were erroneous, as they were not the business records of the OCSO. However, the County Court decided to set the false certifications aside and examine the documents contained therein. This was error. At trial the People chose to proceed on a theory that Exhibits #7 and #8 were business records of the OCSO. On appeal neither the People nor the Court should be permitted to chart a different course for the admission of the exhibits. Bank Hapoalim B.M. v. WestLB AG, 121 AD3d 531, 535 (1 st Dep’t. 2014)(A party may not adopt a position on appeal at odds with its arguments to the trial court.) The rule against a change of theory on appeal is applicable to both appellants and respondents, “since resort cannot be had to a theory not suggested at the trial for the purpose of either sustaining or reversing the determination made in the trial court”. 4 N.Y. Jur. 2d Appellate Review §606. More critically it is respectfully submitted that Exhibit #7 and Exhibit #8 cannot be partitioned after the trial to remove the offending false certifications. The false certifications of Felshaw were introduced as evidence in this case and considered by the jury in reaching its verdict. Inasmuch as the conviction of Roy Kangas is premised on false certifications it must be reversed. B. The admission of representations of electronic records without proper foundation was error requiring reversal. At the trial of this matter the People offered Exhibit #7 which are electronic records of NYSFIC. NY State Tech. Law §302(2) defines “electronic record” as “information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities”. The documents include (1) the 0.10% Simulator Solution Record, digitally signed by Carrie A 8 Kirkton [Kirkton], a Forensic Scientist at the NYSPFIC and (2) the authenticating certification pursuant to CPLR 4518 digitally signed by Jennifer F. Limoges [Limoges], Supervisor at NYSPFIC. NY State Tech. Law § 302(3) defines “electronic signature” to mean an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record”. It is not disputed that electronic records can be admitted as business records provided that the People establish a proper foundation. (CPLR §4518(a)) As to what constitutes a proper evidentiary foundation New York State statutory law, CPLR §4518, CPLR §4539, State Technology Law §302, and State Technology Law §306, read together, set forth the foundational requirements for the submission of evidentiary proof in admissible form in a case where the evidence is maintained in an electronic format. Am. Exp. Centurion Bank v Badalamenti, 30 Misc 3d 1201(A) (NY Dist Ct 2010). Initially, the Court must determine if the record sought to be introduced is a business record that qualifies to be admitted as such. CPLR §4518, commonly referred to as the “Business Record Rule” instructs: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. CPLR §4518(a) also sets forth the basic requirements for the introduction of an electronic business record into evidence: “An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the 9 electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record.” Turning to State Technology Law §302, as directed to by CPLR §4518(a), the statute defines an “electronic record” as follows: “Electronic Record shall mean information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities.” Under the heading “Admissibility into Evidence”, State Technology Law §306, states: “In any legal proceeding where the provisions of the civil practice law and rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of article forty-five of the civil practice law and rules including, but not limited to section four thousand five hundred thirty- nine of such law and rules.” Finally, CPLR §4539(b) includes the following language: “A reproduction created by any process which stores an image of any writing, entry, print or representation and which does not permit additions, deletions, or changes without leaving a record of such additions, deletions, or changes, when authenticated by competent testimony or affidavit which shall include the manner or method by which tampering or degradation of the reproduction is prevented, shall be as admissible in evidence as the original. In sum, in order to meet the statutory foundational requirements for the admission of electronic records under the “Business Record Rule”, the People were required to produce by competent testimony or affidavit, by a person having personal knowledge of the maker's business practices and procedures, proof that the record: (1) “was made in the regular course of any business and ... it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518[a]); (2) an satisfactory account of whether and how the electronic record keeping system permits “additions, deletions or changes without leaving a record of such additions, deletions or changes”; (3) 10 addressing “the manner or method” (if any) by which “tampering or degradation” of the reproduced records is prevented. See, CPLR §4539(b). In this case the authenticating certificate of OCSO Records Clerk Felshaw (A. 23) erroneously alleges that the authenticating certificate of Limoges (A. 24) and the Simulator Solution Record of Kirkton (A. 25) were made in the regular course of business of the OCSO (the Felshaw certificate does not offer any explanation as to how the documents were obtained by the OCSO, the format they were in when they arrived, how they were stored or the manner or method (if any) by which tampering or degradation of the reproduced electronic records was prevented. The Limoges certificate alleges that the Simulator Solution Record is a true and accurate representation of an electronic record of NYSPFIC and has been delegated to her possession, custody and control by the Superintendent of the New York State Police. Limoges further alleges, in pertinent part, that the record was made in the regular course of business of the NYSPFIC. However the Limoges certificate fails to provide any details as to the manner in which the electronic records of NYSPFIC and electronic signatures of Kirkton and Limoges were created, compiled, stored, and maintained or details of the system employed by NYSPFIC to prevent tampering and to track changes. At trial Exhibit #7 was introduced through NY State Trooper Sean McVicar. [McVicar] McVicar was an Oneida County Deputy Sheriff on the date of arrest and also the breath test operator (A. 155-157). McVicar was able to identify the documents by reading the headings, but offered no testimony of how the electronic records of NYSPFIC and electronic signatures of Kirkton and Limoges were created, maintained or secured (A. 155-157). 11 In People v. Hernandez, 31 Misc 3d 208, 218 (Rochester City Ct 2011) the court concluded that the electronic signature instrument calibration certificate was inadmissible, as even though the rules of evidence allow for admission of copies under CPLR 4539(b), the authenticating certificates before the court fail to pass the statutory test requiring them to set forth “the manner or method by which tampering or degradation of the reproduction is prevented.”). Similarly in Midland Funding LLC v. Loreto, 34 Misc 3d 1232(A) (Civ Ct 2012) the court held that if electronic information is used, then the second requirement is inclusion in an affidavit of information establishing that the documents are free from tampering or degradation and the basis of that belief. On appeal the County Court maintained that the provisions of CPLR §4539(b) “do not apply to the records received in evidence as Exhibit 7 by the lower court” (A. 17). The County Court maintained that CPLR §4539(b) only “governs the admissibility of a copy of a document ‘to be introduced as a record of a private entity’”. (emphasis in original) (A. 17). However, a review of CPL §4539(b) reveals that it does not contain such limitation. The County Court further maintained that “[b]ecause the simulator solution record and attached certification which had been created electronically in the first instance and never existed as hard copies, the qualifying language of CPLR §4539(b) does not apply” (A. 18). Apparently, the County Court adopted not only the conclusion in People v. Rath, 41 Misc 3d 869 (NY Dist Ct 2013), but also the facts. This record fails to support the County Court’s conclusion that the documents never existed as hard copies. In fact the authenticating certification of Felshaw would indicate otherwise (A. 23). A further review of the decision in Rath reveals that the court supported its conclusion by examining the legislative intent of CPLR §4539(b) when it was enacted in 1996. However, the 12 court failed to examine the legislative intent of State Technology Law §306 and the implication of its cross-reference to CPLR §4539 when it was enacted in 1999. As noted by Senator Kemp Hannon, the Senate Bill Sponsor, “[o]bviously, the validity of electronic records and signatures cannot be addressed in statute without creating some evidentiary assumptions. However, this statute explicitly defers to the Civil Practice Law and Rules in such matters.” [See, Letter of Senator Hannon attached as Exhibit “B”]. State Technology Law §306 specifically provides: “In any legal proceeding where the provisions of the civil practice law and rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of article forty-five of the civil practice law and rules 1 including, but not limited to section four thousand five hundred thirty- nine of such law and rules.” In enacting State Technology Law §306 it was the intent of the legislature to place the admission into evidence of electronic records and electronic signatures squarely within the ambit of CPLR §4539 - and they did so without exclusion or limitation. This would include CPLR §4539(b) and the requirement that to be admitted into evidence an electronic record or electronic signature must by authenticated by competent testimony or affidavit which shall include the manner or method by which tampering or degradation of the reproduction is prevented. If one were to follow the People’s County Court argument, State Technology Law §306 it would be applicable only in cases where a non-government entity created an electronic record, reduced the record to a hard copy, optically scanned the hard copy, stored it and then reduced it to print form again for admission into evidence. If the People’s interpretation of Technology Law §306 were accepted it would severely restrict the admission of electronic records and electronic signatures into evidence, as they would have to be optically scanned and maintained as images to comply with such an interpretation of CPLR 4539(b). It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature. Patrolmen's Benev. Ass'n of City of New York v City of New York, 41 13 NY2d 205, 208 (1976). “As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.” Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 (1998). Since its enactment courts that have had the opportunity to interpret State Technology Law §306 have provided a straight forward application for the admission of electronic records into evidence. Am. Exp. Centurion Bank v. Badalamenti, 30 Misc 3d 1201(A) (NY Dist Ct 2010)(Where the affidavit does not describe whether the electronic record keeping system permits “additions, deletions or changes without leaving a record of such additions, deletions or changes” or address “the manner or method” (if any) by which “tampering or degradation” of the reproduced records is prevented, the party cannot satisfy its burden, under State Technology Law 306 and CPLR 4539(b), of laying a proper foundation for submitting the subject reproductions. See also, Am. Exp. Bank, FSB v Zweigenhaft, 38 Misc 3d 1218(A) (Civ Ct 2013)(“This testimony was insufficient to meet the requirements inherent in Technology Law §306 and CPLR §4539(b). [The witness] did not provide any detail as to Amex's system of generating and maintaining electronic records. No information was provided as to how the documents were created or compiled to begin with. Nor was there any testimony as to how Amex maintains its electronic files -- while this Court has no interest in the type of hardware used, it would be helpful to know how the files are organized, who has access, and how the integrity of the files is maintained such to prevent tampering and track what changes were made, by whom, and when.”). It should be noted that NYSDCJS has since revised their authenticating certification of electronic records to include the following language: “[t]his record, once created, is stored in an electronic format that cannot thereafter be altered or modified.” For illustrative purposes a copy of the new certification is attached to this brief as Exhibit “A”. 14 In this case the People failed to meet the statutory foundational requirements for the admission of electronic records, as they failed to produce by competent testimony or affidavit describing whether the electronic record keeping system permits “additions, deletions or changes without leaving a record of such additions, deletions or changes” and addressing “the manner or method” (if any) by which “tampering or degradation” of the reproduced records is prevented. See, State Technology Law §306; CPLR §4539(b). The admission of the electronic records was error. C. Photocopies of the authenticating certificates of John Digman were insufficient to establish a proper foundation for the admission of the DataMaster calibration/maintenance records, error requiring reversal. On appeal the County Court also determined that copies of the DataMaster calibration/maintenance records [Exhibit #8] were properly admitted, despite the “confusion” of the false certification of Felshaw, as they contained notarized certifications of state employees (A. 13). The notarized authenticating certifications of John Digman were photocopies (A. 27, 30). It is acknowledged copies of public documents are excepted from the application of the best evidence rule, this being so because of the danger of the original being lost or damaged, as well as reasons of public convenience. People v. Brown, 128 Misc 2d 149, 152 (NY Co Ct 1985). While copies of the DataMaster calibration/maintenance records (A. 28, 29, 31, 32), would be acceptable, CPLR Rule 4540(b) requires that such copies be properly certified before admission may properly be had. It has further been held that the authenticating certificates, prepared for litigation, must be an original absent a valid excuse for non-production. People v Brown, 128 Misc 2d at 152-53 (“The photostatic copy of the first certificate therefore violates the best evidence rule and is inadmissible on that account, the prosecution having shown no valid excuse for the non-production of the original.”) It is respectfully submitted that there is a considerable 15 difference from a best evidence standpoint between a copy of a public document and a copy of a certificate attesting to the accuracy of that document. People v. Brown, 128 Misc 2d 149, 152-53 (NY Co Ct 1985). “A copy of a certification is tantamount to no certification.” People v. Sykes, 167 Misc 2d 588, 590 (Sup Ct 1995) affd, 225 AD2d 1093 (4th Dep’t. 1996). Based on the above, County Court erred in determining that the DataMaster calibration/maintenance records were properly admitted. II. ON APPEAL THE COUNTY COURT ERRED IN FINDING THAT STATE AGENCIES ARE EXEMPT FROM THE REQUIREMENTS OF CPLR §4539(b). On appeal, the County Court rejected the Appellant’s argument that the admission into evidence of electronic records requires compliance with State Technology Law §306 and CPLR §4539(b). In the opinion of the County Court, NYSDCJS and NYSPFIC did not have to comply with CPLR §4539(b) because the statute only applies to “the record of a private entity”. This was error. A review of CPLR §4539 makes clear that although CPLR §4539(a) restricts its reach to “any business, institution, or member of a profession or calling . . .” CPLR §4539(b) contains no such limitation. Here again, examination of the legislative intent of State Technology Law is helpful. "This legislation therefore applies to both the public and private sectors." [See, Letter of Senator Hannon attached as Exhibit “B”] III. ON APPEAL THE COUNTY COURT ERRED IN FINDING THAT CPLR §4539(b) ONLY APPLIED TO DOCUMENTS THAT WERE ORIGINALLY IN HARD COPY. On appeal the County Court further held that the qualifying language of CPLR §4539(b) did not apply to the electronic records contained in Exhibit #7 because the documents never existed in hard copy. This was error on several levels. Initially, this record fails to support the conclusion that the documents never existed as hard copies. More critically the implication of