The People, Respondent,v.Roy S. Kangas, Appellant.BriefN.Y.September 14, 2016To Be Argued By: Time Requested For Argument: STATE OF NEW YORK Steven G. Cox, Esq. 15 minutes COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, vs. ROY S. KANGAS, Defendant-Appellant. COURT OF APPEALS DoCKET APL-2015-00180 ROME CITY COURT DOCKET No. 53169 ONEIDA COUNTY COURT RJI No. 14-C-036 BRIEF FOR PLAINTIFF- RESPONDENT DATE: October 19, 2015 STEVEN G. Cox, EsQ. Assistant District Attorney Chief Appellate Counsel Of Counsel SCOTT D. MCNAMARA, ESQ. Oneida County District Attorney 235 Elizabeth Street Utica, New York 13501 315/798-5766 3151798-5582 (fax) TABLE OF CONTENTS Table Of Contents ....................................................................................................................... 2 Table Of Citations ....................................................................................................................... 3 Preliminary Statement .................................................................................................................. 6 Facts ............................................................................................................................................... 8 POINT I ...................................................................................................................................... 12 County Court properly found the chemical test to be admissible, in part because the documentary foundation of operability was properly received pursuant to CPLR §§ 4518[a] & (c] . ............................................................................................................................... 12 POINT 11 ..................................................................................................................................... 30 County Court properly received the exhibits as electronic records ....................................... 30 Conclusion ................................................................................................................................... 39 2 TABLE OF CITATIONS CASES California v Trombetta, 467 US 4 79 [1984] -------------------------------------------------------------13 Commonwealth v Steele, 455 Mass. 209 [Mass. 2009] -------------------------------------------------13 Green v DeMarco, 11 Misc.3d 451 [Momoe Co. Sup. Ct. 2005] -------------------------------------13 Liberto v Worcester Mut Ins Co, 87 AD2d 477 [2d Dept.1982] --------------------------------------26 People v Azpuru, NY SlipOp. 50341(U) (NY City Crim Ct 2002) -----------------------------------20 People v Boscic, 15 NY 3d 494 [20 1 OJ --------------------------------------------------------------------11 People v Brown, 128 Misc.2d 149 [Madison County Ct. 1985] ---------------------------------------28 People v Cratsley, 86 NY2d 81 [1995] -------------------------------------------------------------------14 People v DiSalvo, 284 AD2d 54 7 [2d Dept. 2001] ------------------------------------------------------15 People v Etienne, 192 Misc.2d 90 [First Dist., Nassau Co. 2002] ------------------------------------15 People v Farrell, 137 Misc2d 926 [Dobbs Ferry Just. Ct, 1987]--------------------------------------14 People v Flores, 138 AD2d 512 [2d Dept. 1988], lv denied ,72 NY2d 859 [1988] -----------25, 28 People v Freeland, 68 NY2d 699 [1986] -----------------------------------------------------------------11 People v Freycinet, 11 NY 3d 38 [20 11] ------------------------------------------------------------------26 People v Gill, (New York County Criminal Court, Docket No. 99N103751, April26, 2000, AP- 5)-------------------------------------------------------------------------------------------------------------23 People v Hampe, 181 AD2d 238 [1992], app denied 80 NY2d 930 [1992] -------------------------11 People v Hampe, 181 AD2d 238 [3d Dept. 1992] -------------------------------------------------------12 People v Hernandez, 31 Misc3d 208 [Rochester City Ct. 2011] -----------------------------20, 21, 31 People v Hudson, 23 7 AD2d 943 [4th Dept. 1997] -----------------------------------------------------27 People v King, 232 AD2d 111 [2d Dept. 1997], lv. denied 91 NY2d 875 [1997] ------------------36 People v Lent, 908 NYS2d 804, 2010 WL 2802714 [App. Term, 9th & lOth Jud. Dist. 2010) --12 People v Lin, 46 Misc3d 20 [Sup Ct App Term 2nd Dept 2014]--------------------------------------26 People v May, 162 AD2d 977 [4th Dept. 1990], lv denied 76 NY2d 861 [1990]-------------- 25, 28 People v Mertz, 68 NY2d 136 [1986] ---------------------------------------------------------------- 11, 12 People v Patnian, 20 Misc. 3d 298 [Justice Court, Rennselaer Cty. 2008] --------------------------30 People v Pealer, 20 NY3 d 44 7 [20 13] --------------------------------------------------------------------26 3 People v Pealer, 89 AD 3d 1504 [4th Dept. 2011 ]-------------------------------------------------------25 People v Rath, 41 Misc3d 869 [Dist. Ct., Nassau Co. 2013]-------------------------------------------16 People v Rath, 41 Misc3d 869, 873 [Dist. Ct., Nassau County 2013] --------------------------------10 People v Roach, 226 AD2d 55 [4th Dept. 1996] --------------------------------------------------------24 People v Robinson, 53 AD3d 63, 70 [2d Dept. 2008]---------------------------------------------------12 People v Smith, 258 AD2d 245 [4th Dept. 1999] --------------------------------------------------------20 People v Wray, 183 Misc.2d 444 [Sup.Ct. Kings Cty. 2000] ------------------------------------------15 Rodriguez v Triborough Tunnel and Bridge Authority, 276 AD2d 769, 770 [2d Dept 2000]-----26 State v O'Dell, 202 Ariz. 453 [Ariz. App. Div. 2002] --------------------------------------------------13 State, Department of Motor Vehicles v Taylor-Caldwell, 229 P3d 471 [Nev. 2010]---------------13 STATUTES CP~ § 330.30 -------------------------------------------------------------------------------------------------- 9 CP~R § 23 06--------------------------------------------------------------------------------------------------26 CP~R § 23 07--------------------------------------------------------------------------------------------------25 CP~R § 4518 [a]-------------------------------------------------------------------------------- 14, 17, 18, 3 5 CP~R § 4518 [ c] ---------------------------------------------------------------------------------------- passim CP~R § 453 9--------------------------------------------------------------------------------------------- 26, 31 CP~R § 45 3 9 [a]----------------------------------------------------------------------------------------- 14, 31 CP~R § 453 9 [b] --------------------------------------------------------------------------------------- passim CP~R § 4 5 40 --------------------------------------------------------------------------------------------------19 CP~R § 4 5 40 [b] ---------------------------------------------------------------------------------------------18 Public Officers ~aw § 60------------------------------------------------------------------------------------19 S T~ § 3 02( 1) --------------------------------------------------------------------------------------------------1 7 S T~ § 3 02 -----------------------------------------------------------------------------------------------------2 9 S T~ § 3 0 5 -----------------------------------------------------------------------------------------------------2 9 S T~ § 3 06 -----------------------------------------------------------------------------------------------------2 8 S T~ § 3 09 -----------------------------------------------------------------------------------------------------3 0 S T~ § 3 04 [2] -------------------------------------------------------------------------------------------------29 VT~ § 1192 [2] ------------------------------------------------------------------------------------------------ 9 VT~ § 1194 [ 4] [ c] -------------------------------------------------------------------------------------------12 4 VTL § 119 5 [ 1] -----------------------------------------------------------------------------------------------12 Wis. Admin. Code § Trans 311.06 [3] [ d] ----------------------------------------------------------------13 TREATISES 5 Wigmore on Evidence [Chadbourn Rev.] § 1684------------------------------------------------------26 Alexander, Practice Commentaries, McKinney's Cons. Laws ofNY, Book 7B, CPLR § 4518:4A, p. 4 54 --------------------------------------------------------------------------------------------------------3 3 Memorandum in Support, New York State Senate, 1996 McKinney's Session Laws ofN.Y., vol. 2, at 199 9-2 0 00 -------------------------------------------------------------------------------------------- 3 4 Richardson on Evidence [1Oth Ed.] § 342 ----------------------------------------------------------------25 Weinstein, Korn & Miller, New York Civil Practice; (Lexis-Nexis Matthew Bender 2nd Ed. Vol. 9' ,-r,-r 45 3 9.11) ----------------------------------------------------------------------------------------------3 3 5 PRELIMINARY STATEMENT The issue before the Court involves the foundational requirements for certain documentary evidence to be received by a trial court demonstrating the reliability of a chemical test result in a driving while intoxicated prosecution. The wrinkle before the Court in this instance is that the documents in question- a certified Simulator Solution Record from the State Police Forensic Investigation Center (Trial Exhibit #7) and certified Records of Inspection/Maintenance/Calibration of a Breath Test Instrument from the Division of Criminal Justice Services (Trial Exhibit #8)- were provided by the Oneida County Sheriffs office records unit. The documents were offered, and received into evidence, with a certification from the Sheriffs office that both were records made and kept in the ordinary course of business of the Sheriffs office and that it was the business of the Sheriffs office to make and keep such records. Attached to that certification were copies of the original documents held by the Sheriffs office, including the certifications from each respective agency. While admittedly not best practice, it is the People's position that it was not error for the trial court to find sufficient indicia of reliability to receive these documents into evidence. Secondarily, the Court must consider the intent of the legislature in enacting the Electronically Stored Records Act, among the provisions 6 of the State Technology Law. Was it to make it easier or more difficult to transition to electronic or digital storage of voluminous documents? 7 FACTS "You're going to fuck my life up if you do this," defendant Roy S. Kangas told Rome Police Officer Jeffrey Sanders when he told him to step out of his car, "I just live around the corner." Sanders had just pulled defendant over while on routine patrol around 11 :00 P.M. the night of July 20, 2012 when he saw a gray van make a left turn without signaling (R 66). The observation occurred less than a mile away from popular local bars, where the World Series of Bocce Weekend event had brought in a higher-than-usual volume of patrons (R 93-94). Sanders had to activate both his lights and siren to get the attention of defendant before he stopped his car (R 67). Defendant pulled his car so far off the road that his wheels were on the grass. Defendant admitted to Sanders that he had a few drinks that night at the Toccolana Club, then a few more at nearby DeMatteo's Bar (R 74). During this conversation, Sanders smelled alcohol and noticed that defendant's eyes were glassy and bloodshot (R 67). That's when Sanders asked defendant to step out of his car to perform some field sobriety tests (R 74). Throughout the tests, defendant continued to tell the officer that he only lived a short distance away (R 74, 75, 77). Sanders placed defendant under arrest and transported him to the Oneida County Sheriffs Office (R 79-81, 82, 138), where Deputy (later Trooper) Sean McVicar administered a chemical breath test using the Datamaster breath test instrument (R 8 149). The result was a reading of .19: over double the legal limit of .08 (R 160- 161). A jury trial was held in Rome City Court before the Hon. Daniel C. Wilson, Rome City Court Judge, on August 7-12, 2013. The People introduced a record of analysis of simulator solution certified by the Oneida County Sheriffs Office (hereinafter OCSO) and the New York State Forensic Investigation Center (People's Ex.# 7) (R 23-25); and two Datamaster breath test instrument records of inspection, maintenance and calibration certified by the Oneida County Sheriffs Office and the Division of Criminal Justice Services (People's Ex.# 8) (R 26-32); all over defense objections. The People first offered Exhibit #8 (Calibration Records), drawing this objection from defense counsel: "I'm going to object. These are actually copies. The certification on the front, there is no seal on it. There is nothing on here to indicate that it's actually sent by the undersheriff and not from Albany where allegedly these documents came from. I don't know how she's certifying what Albany did and there is no seal on any ofthem." (R 6, 153-155). The trial court, outside the presence of the jury, entertained further argument on the issue, during which the trial court observed that there was a certification from the state within the document. Defendant alleged, without basis, that the OCSO Records Clerk Katie Felshaw "never saw the original. If she did see the original, that would be in here." Of course, ifFelshaw had supplied the original, no 9 certification of a copy thereof would have been attached. The trial court properly received the exhibit as a business record. Next, the People offered Exhibit #7 (Simulator Solution), drawing this objection from trial counsel: "I object. It's an electronic signature that is not verified to show it could be tampered with (sic). There is case law that I do have for it. She's trying to certify something that she didn't do. I think that is a big issue at this point." (R 8, 156-157). The prosecutor responded that the certification provided by the Sheriffs office was actually unnecessary and superfluous. "There is an electronic signature by Jennifer Limoges of the Forensic Evaluation (sic) Center." The trial court received the exhibit over objection (R 157). Following trial, the jury convicted defendant of driving while intoxicated with a BAC of .08% or Greater (VTL § 1192 [2]) (R 277-278). On September 6, 2013, the defendant filed a motion pursuant to CPL § 330.30 of the Criminal Procedure Law to set aside that verdict. That motion was denied by Memorandum Decision (Wilson, J) dated October 19, 2013. Defendant appealed the VTL § 1192 [2] conviction to Oneida County Court, alleging the foundational documents for the Datamaster were received in evidence in error. Hon. Michael L. Dwyer issued a written decision, dated February 25, 3015, affirming that determination (R 3-20). County Court did consider the certifications of OCSO Records Clerk Felshaw to be inadequate as the language 10 contained therein certified the records as copies of original documents made and kept by the OCSO when, in fact, each was originally made and kept by a different entity (DCJS and the State Police). County Court, therefore, treated those certifications as irrelevant, looking instead to the respective certifications of the underlying documents themselves. County Court found the certifications from DCJS and the Forensics Investigation Center fully complied with the requirements of CPLR § 4518 [ c] (R 8-15). Further, the court below separately analyzed the admissibility of Exhibit #7 as an Electronic Record. The court below recognized that CPLR § 4539 [b] language requiring authentication that the method of electronic reproduction does not "permit additions, deletions or changes" did not apply in this case. Citing a well-reasoned District Court decision from Nassau County, the court below agreed that "electronic records, in contrast, are created or stored by electronic means from the outset and are not within the scope of CPLR 4539 [b ]" (citing People v Rath, 41 Misc3d 869, 873 [Dist. Ct., Nassau County 2013]) (R 17-18). Finally, the court below dispensed with defendant's argument that a "raised seal" was required to authenticate the certifications from the DCJS or the Forensic Investigations Center. "Neither 4518 [ c] nor Article III of the STL require that an exhibit offered in evidence as a business record contain a raised seal," the court wrote. Defendant appeals the determination of Oneida County Court herein. 11 POINT I County Court properly found the chemical test to be admissible, in part because the documentary foundation of operability was properly received pursuant to CPLR §§ 4518[a] & [c]. This Court has made clear that a defendant's blood alcohol content is admissible whenever obtained pursuant to a chemical test that meets the foundational requirements for admissibility-namely, that the testing device (1) is of a type that, when operated correctly, ordinarily produces scientifically reliable results and (2) was both in good working order and properly used on the date in question (see People v Mertz, 68 NY2d 136, 148 [1986]). To that end, the People must demonstrate that the instrument "had been tested within a reasonable period in relation to defendant's test and found to be properly calibrated and in working order" (Mertz, 68 NY2d at 148). The foundation requires documentary evidence "from which the trier of fact could reasonably conclude that the test results were derived from a properly functioning machine using properly constituted chemicals" (People v Freeland, 68 NY2d 699, 701 [1986]). "There must still be proper foundation testimony under CPL § 4518 [a], or a proper 4518 [ c] certificate" to lay that foundation, the Mertz Court instructed (Mertz, 68 NY2d at 148; People v Boscic, 15 NY3d 494, 497 [2010]). Courts have held that breath test instruments are reliable and accurate (People v Hampe, 181 AD2d 238 [1992], app denied 80 NY2d 930 [1992]) and 12 here, defendant failed to adduce any evidence at trial to demonstrate that the breath instrument in issue was unreliable. Rather, defendant sought to apply an unnecessarily restrictive standard to the introduction of common, foundational documents regularly relied upon by courts across the state. In general, the legislature and courts of this state have eased the introduction of the results of breath test devices by untethering them from specific foundational showings and requirements, by: (a) Legislatively rendering test results admissible (See VTL § 1195 [1]); (b) Taking judicial notice of a particular breath test device's reliability based solely on its placement on a Department of Health list (See, e.g., People v Robinson, 53 AD3d 63, 70 [2d Dept. 2008] [machines on DOH list presumed reliable]; People v Hampe, 181 AD2d 238,241 [3d Dept. 1992] (same); People v Lent, 908 NYS2d 804, 2010 WL 2802714 [App. Term, 9th & lOth Jud. Dist. 2010) (same); (c) Presuming that a breath test is properly administered because the police officer administering it possesses a Department of Health permit (See, e.g., VTL § 1194 [4] [c]; People v Mertz, 68 NY2d 136, 148 [1986]; People v Miller, 199 AD2d 692, 693 [3d Dept. 1993]); 13 (d) Accepting hearsay documents to establish that the machine was working properly (See, e.g., Mertz, supra; Lent, supra; Green v DeMarco, 11 Misc.3d 451 [Monroe Co. Sup. Ct. 2005]); and by (e) Not mandating that a second, confirmatory test be run shortly after the first (a requirement in many States) (See, e.g., California v Trombetta, 467 US 479, 481 [1984]; State v Ybarra, 237 P3d 117, 2010 WL 3169357 [N.M. App. 2010]; State, DepartmentofMotor Vehicles v Taylor-Caldwell, 229 P3d 471,471 [Nev. 2010]; Commonwealth v Steele, 455 Mass. 209, 211-14 [Mass. 2009]; State v O'Dell, 202 Ariz. 453, 455 [Ariz. App. Div. 2002]; Wis. Admin. Code§ Trans 311.06 [3] [d]). It would be, therefore, counter-intuitive for the Court to find the need for stricter control or greater obstacles to the introduction of electronic evidence which fulfills the same mission as its pen-and-paper predecessors. A. County Court erred in deciding the foundational documents were not records of the Oneida County Sheriff's office. The documents in possession of the Oneida County Sheriffs office (OCSO) -the simulator solution record and Datamaster maintenance/calibration records- are the originals and while they were "made" elsewhere, they were "routinely relied on" by the OCSO and used in the ordinary course of business of the OCSO and therefore qualify as copies sufficient for admission as business records under 14 CPLR § 4539 [a], and CPLR § 4518 [a] (See People v Cratsley, 86 NY2d 81 [1995]). Further, once adopted by the OCSO and incorporated into their records, they were admissible under CPLR § 4518 [ c] as records of a municipal corporation. A Justice Court recognized exactly that principle in People v Farrell, 137 Misc2d 926 [Dobbs Ferry Just. Ct, 1987]. Just as here, in Farrell a police department took control of an original certificate of another entity and incorporated it into its business records. In Farrell, the Dobbs Ferry Police Department copied a Bureau of Municipal Police certificate as to radar calibration then affixed their own authenticating document to the copy. The Farrell Court wrote: "In any event, they are 'papers' of the Dobbs Ferry Police Department which is 'a department ... of a municipal corporation' (see CPLR § 2307). As such, these records are admissible under CPLR § 4518[ c] without the necessity of a preliminary showing that they are business records ... By virtue of CPLR § 2307[b] a certified photostatic copy may be produced in place of the original ... " (Farrell, 137 Misc2d at 931). B. Documents in the possession of the OCSO were kept in the ordinary course of business. Defendant, on brief, states that "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 (sic)" (Defendant's Brief, p.6). Defendant cites Cratsley, which does state that "the mere filing of papers from other entities, even if they are retained in the regular course of business, is 15 insufficient to qualify the documents as business records" (Cratsley, 86 NY2d. at 89). In Cratsley, however, this Court went on to say that in some cases the relationship between the two entities and the nature of the records in question may give the party using the information sufficient familiarity with the records to allow the admission of the evidence and to provide foundation testimony for their admittance, circumstantial familiarity (ld.). A Nassau County District Court applied this Court's "circumstantial familiarity" theory to driving while intoxicated cases in People v Etienne, 192 Misc.2d 90 [First Dist., Nassau Co. 2002]. That court pointed out that the Second Department had further developed this exception, holding that the recipient's "routine reliance upon" the original possessor's information will allow for the admission of the evidence by the recipient's employee even though they are neither the custodian nor the one who prepared the information (see People v DiSalvo, 284 AD2d 547 [2d Dept. 2001]; People v Wray, 183 Misc.2d 444 [Sup.Ct. Kings Cty. 2000]). The deputies of the OCSO were intimately familiar with the certified documents ofthe Division of Criminal Justice and the Forensic Investigation Center as they are requisite foundational documents of every DWI prosecution, as well as verification that the Sherriffs own breath-testing equipment was in proper working order. 16 Here, not only does the OSCO routinely rely on outside agencies - fellow law enforcement agencies - that have the proper resources, to run the actual scientific tests and create the original records from those results, but OSCO uses the reports of those outside entities in the regular course of their agency business. It is routine for the OCSO to deal with DWI arrests, which regularly involve chemical breath test instruments. It is routine for the OSCO to have the records at issue here in relation to the tests conducted to support the reliability of the instruments used in these tests. Since OSCO routinely relies on these reports, and uses these reports in the regular course of their agency business, they are "circumstantially familiar" with them, and they qualify as business records of OSCO despite the fact that the original reports were made at a different agency. C. Exhibit #7- Simulator Solution. People's Exhibit #7- the Certified Record of Analysis, Simulator Solution Lot #12060- was digitally created in the first instance by the State Police Forensic Investigation Center - meaning it never existed in physical form as an original document. Generally, documents regarding calibration of breath test machines are not subject to the best evidence rule and are admissible pursuant to the business records exception to the hearsay rule (People v Rath, 41 Misc3d 869 [Dist. Ct., Nassau Co. 2013]). 17 In Rath, the District Court addressed the adequacy of the foundation for electronically created and stored business records. That was a typical DWI case in which the prosecution introduced printouts of electronic records concerning the calibration, maintenance and testing of the breathalyzer that was used to determine the defendant's consumption of alcohol. These documents were accompanied by an electronically generated and electronically signed certificate of a supervisor in the forensic investigation center of the New York State Police. The certificate averred that the original electronic calibration records met the three foundational requirements for business records contained in CPLR § 4518 [a], and that each of the documents was an accurate copy of the electronic records that had been delegated to her possession, custody and control by the Superintendent of the New York State Police. The Rath Court found this sufficient to admit the calibration documents under the authority of CPLR 4518 [a]' s provision for electronic records, along with the provisions of the State Technology Law (in particular,§§ 302(1)- (3), 304(2), 305(1) & (3), and 306). Because none of the calibration documents in Rath originally existed as hard copy - the records reflected in the documents were created electronically in the first instance -the admissibility prerequisites of CPLR § 4539 [b] (reproductions of optically imaged versions of documents that were originally created as hard copy) did not apply. The electronically signed certificate of authentication of the 18 calibration documents, which described the production of the documents and showed that the original records met the foundational requirement for business records, itself qualified as the statutory equivalent of an "original" signed certificate. Importantly, the Rath court also held that the documents and certification satisfied the admissibility criteria of CPLR § 4518 [ c] and that the forensic supervisor's certificate qualified as an admissible public record under CPLR § 4540 [b]. CPLR § 4540 [b] states, in pertinent part: (b) Certificate of officer of the state. Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, ... or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed. Here, Exhibit #7 included a certification, digitally signed by Jennifer F. Limoges, Supervisor of Forensic Services at the Forensic Investigation Center, appropriately referencing CPLR § 4518 [ c]. The certification represents that the attached was a "true and accurate representation of an electronic record" delegated to her custody and control and goes on to recite necessary CPLR § 4518 [a] language to lay the foundation for the document. The language of the certification appears over a State Police watermark -that agency's chosen seal. 19 D. "Raised Seal"not required under the law. It is not necessary for the breath test documents to have a raised seal in order to be admissible (People v DiRose, 42 Misc3d 1224[A] [J. Ct. 2014]). The nature of an agency's seal is ill-defined, but discussed in Public Officers Law§ 60, which reads: 1) Each of the civil departments in the state government shall have an official seal. In addition to the divisions or bureaus required by law to have an official seal, any division or bureau of any department shall have such a seal, if so required by rules of the department. The official seal shall be used in the cases prescribed by law. Such rules also may prescribe other cases in which it shall or may be used. For the purposes of any provisions of the law requiring the use of the official seal of the officer or body who or which is the head of a department, division or bureau, the seal of such department, division or bureau shall be deemed the official seal of such officer or body. 2) ... The official seal, if any, of a division or bureau of a department shall have thereon the matter required for the official seal of the department and in addition thereto words or initials, or both, describing the division or bureau ... Nothing in this description requires a raised seal. Further, nothing in this section describes a particular type of seal necessary to the Office of Public Safety within the Division of Criminal Justice Services. There is no reason to believe that more than official letterhead, which bears the state seal and describes the division and bureau, is necessary. CPLR § 4540 requires that an official publication or a copy of a publication that is attested to as correct by an officer or deputy having legal custody of the 20 state is prima facie evidence of the foundational requirement for a business record as long as it has the individuals signature or a facsimile of the signature and is accompanied by the seal of the public body (emphasis added). Two lower court judges - one in Albany City Court and the other in Rochester City Court - have nevertheless found a raised seal necessary to meet the "certification or authentication" test. (See People v Hernandez, 31 Misc3d 208 [Rochester City Ct. 2011 ]). Those courts point to the seal requirements set forth in CPLR § 4540 and the discussion of this in People v Smith, 258 AD2d 245 [4th Dept. 1999]. However, CPLR§ 4540 does not require that the seal be raised, it merely states that an official seal be affixed to the document. In People v Smith, the court refused to accept a DMV abstract where the seal was adhered to preprinted forms prior to the creation of an official driving record/DMV abstract. The court in that case discussed that there were not mechanisms in place that could overcome the ability to forge such a document and further went on to state that adhering a time stamp to the document along with the electronic signature could assist with overcoming the potential forgery challenge. After the Smith case the DMV changed their system to require the seal to be applied contemporaneously with the driver's identification and record. The court in People v Azpuru, NY SlipOp. 50341 (U) (NY City Crim Ct 2002) held that the changes made to the timing of adherence of the seal cured the earlier problem 21 articulated in Smith. The court in Azpuru, therefore, accepted the DMV abstract into evidence and held that the authentication requirements of the CPLR were met since the seal and certification were electronically placed on each page of the DMV abstract contemporaneously with the driver's identification and record being determined. Rochester and Albany City Courts continue to improperly adhere to the Smith decision and state that a raised seal is required. Both Courts have used this decision to dismiss per se driving while intoxicated cases that utilize electronic calibration records with electronic signatures. Defendant points specifically to People v Hernandez, 31 Misc3d 208 [Rochester City Ct. 2011], in support of his position that the certifications here "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"' (Defendant's Brief, p. 11 ). In fact, that is not the holding of Hernandez. Rather, the Hernandez Court found the items inadmissible for lack of a "raised seal," citing Brown (discussed above). In any event, that decision was largely abrogated by the Monroe County Court in People v Coyne (Unpublished decision attached). In dicta; the Hernandez court notes that the certified report in question there was admitted after the People "produced for inspection documents containing original pen and ink signatures. In fact, the authenticating certificate was not only 22 sworn before a notary but bore a raised seal over the assistant lab director's signature-metaphorically wearing both suspenders and a belt." Clearly that Court's understanding was that either a notarized signature, or a seal - but not both -were necessary. In People v Coyne, Monroe County Court explicitly rejects defendant's contention that simulator solution records were received in evidence in error, refuting Hernandez's rationale: "The court in Hernandez held that simulator solution documents containing electronic signatures were inadmissible as business records, concluding that there was no testimony before the court explaining how the document was generated and the authenticating certificate contained no such information. The court further stated that the document did not indicate whether either party who e-signed the document actually did the testing. Further, it did not indicate, if they did not do the testing, the source of their belief that the test was performed by an identified individual who had a business duty to conduct the test. Here, however, two forensic scientists signed the document indicating that the simulator solution was 'tested' and was 'hereby approved for use' which sufficiently allows for the inference they actually performed the test. . .In any event, the Hernandez decision is not binding on this court and to the extend it holds otherwise, on this issue, this Court declines to follow it." In People v Gill, (New York County Criminal Court, Docket No. 99Nl03751, April26, 2000, AP-5), the trial court found that the certification language by which the Commissioner attests that the record "is a true and complete copy of an electronic record on file with the New York State Department of Motor 23 Vehicles, Albany, New York (a Driving Abstract)" even without the presence of a raised seal, properly authenticates a DMV abstract under the CPLR. E. Exhibit #8- Calibration Records People's Exhibit #8- the Breath Test Instrument Record of Inspection/Maintenance/Calibration - was created in the first instance by the Division of Criminal Justice Services, Office of Public Safety. The actual reports of technician Paul Hasbrouck were certified as "exact photocopies of original records of the Office of Public Safety which are in my possession, custody and control" by Supervisor John R. Dingman- keeper of the records of the Office of Public Safety. Dingman's certification further contained the requisite CPLR § 4518 [a] language that the underlying reports were created at the time the actual testing was conducted and it is the ordinary course of business of the Office of Public Safety to make and keep such reports. Today, these records -like Exhibit #7- are all either digitally created in the first instance - never existing in physical form - or electronically scanned copies that had previously existed in physical form (See Defendant's Exhibit "A"). Defendant objected to the admission of Exhibit #8 in part because the certification of JohnS. Dingman, Special Programs Supervisor in the Office of Public Safety - and keeper of the records of calibration and maintenance of the Datamaster in question- was a copy, not an original. It was attached to an original 24 certification of Katie Felshaw, OCSO Patrol Records Clerk, and accompanied a copy of the actual report of calibration/maintenance performed by the State Police. Dingman's certification contained all the required language, was printed on Division of Criminal Justice letterhead, and bore a facsimile (copy) of his signature which had been notarized. The prosecuting attorney referred the trial court to People v Roach, 226 AD2d 55 [4th Dept. 1996] to support his contention that a copy could be received as well as an original. The trial court then received Exhibit #8 into evidence. In People v Roach, the trial court was conducting a Pringle hearing before suspending a driver's license following a DWI arraignment. The law calls for the court to have a certified copy of the chemical test results, demonstrating that defendant's blood alcohol level exceeded the legal limit. The trial court found the copy of that document to be sufficient. "CPLR 4539 [a]) provides that copies of original documents made in the regular course of business, if properly identified, are 'as admissible in evidence as the original'. That section of the CPLR 'recognizes the fact that the modem business practice is to make photographic reproductions in the regular course of business and ... that photographic reproductions so made are sufficiently trustworthy to be treated as originals for the purpose of the best evidence rule' (People v Flores, 138 AD2d 512, 513 [2d Dept. 1988], lv denied 72 NY2d 859 [1988]; see, People v May, 162 AD2d 977 [4th 25 Dept. 1990], lv denied 76 NY2d 861 [1990])." The Fourth Department, therefore, applied that rationale even to documents which must be presented in certified form to be admissible. F. Testimony unnecessary: Self-authenticating government documents. When offering breath test documents relating to the routine inspection, maintenance and calibration of the instrument, it is not necessary to produce the person who created those records. The main motivation for creating the records is to establish that the instruments are in working order, not to secure evidence in a particular proceeding. As such, the Appellate Division, Fourth Department, has held that routinely-prepared certificates reporting the results of calibration tests and simulator solution tests, which are used to assess the accuracy of breath-test equipment, are nontestimonial (People v Pealer, 89 AD3d 1504 [4th Dept. 2011]). The court reasoned as follows: [T]he statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence .... The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were "not defendant's 'accuser[s]' in any but the most attenuated sense." (89 AD3d at 1505, quoting People v Freycinet, 11 NY3d 38, 42 [2011].) The certification makes the document self-authenticating and therefore admissible as an exception the hearsay rule without the need to lay a foundation 26 (Rodriguez v Triborough Tunnel and Bridge Authority, 276 AD2d 769, 770 [2d Dept. 2000]; Liberto v Worcester Mut Ins Co, 87 AD2d 477 [2d Dept.1982]). It was unnecessary for the prosecution to have a witness identify these records for their introduction into evidence as long as the records contained a proper certification pursuant to CPLR § 4518 (People v Pealer, 20 NY3d 447, 456 [2013]). " ... [A]ll issues relating to the determination of whether a testing device is working properly prior to the commencement of a test are resolved by certified copies of documentation relating to the inspection, maintenance and calibration of the instrument and any solutions used, the admission of which, pursuant to the business records exception to the hearsay rule, requires no testimony by those responsible for the inspections, maintenance, and calibrations (People v Lin, 46 Misc3d 20 [Sup Ct App Term 2nd Dept 2014]; citing Pealer, Id at 447)." The records introduced at trial were attached to certifications with the statutorily required language. Laboratory test results fall within the common law public documents exception to the hearsay rule which provides that "[ w ]hen a public officer is required or authorized, by statute or by the nature of his duty, to keep records or to make reports of acts or transactions occurring in the course of his official duty, the records or reports so made by the public officer or under his supervision are admissible in evidence" (Richardson on Evidence [lOth Ed.] § 342). The 27 legislature included by reference in CPLR § 4518 [ c] the official records referred to in CPLR §§ 2306 and 2307, thereby, in effect, codified much of the public documents exception to the hearsay rule. By including library records and patients' records from private hospitals (as referred to in CPLR § 2306) this statutory hearsay exception now also includes even some quasi-public records which would not otherwise fall within the public documents exception (Cf. Matter of Quinton A., 49 NY2d 328, 400 [1980]; 5 Wigmore on Evidence [Chadbourn Rev.] § 1684). The Fourth Department has held that when a public officer is either required by statute or by nature of position to keep records or make reports in the regular course of duty that they are admissible as prima facie evidence of the facts stated (See People v Hudson, 23 7 AD2d 943 [4th Dept. 1997]). Self-authentication of a copy of a public record requires an attestation and a certification to comply with that section. "Attestation" is a statement by an officer to the effect that a copy of an original record in his custody is accurate, and "certification" is a demonstration of the legal authority of the officer who has so attested (People v Brown, 128 Misc.2d 149 [Madison County Ct. 1985]). Defendant contends The fact that the People introduced copies, rather than original documentation, of the breathalyzer's accuracy, is of no moment. CPLR § 4539 provides that copies of original documents made in the regular course of business, 28 if properly identified, are "as admissible in evidence as the original". That section of the CPLR "recognizes the fact that the modern business practice is to make photographic reproductions in the regular course of business and * * * that photographic reproductions so made are sufficiently trustworthy to be treated as originals for the purpose of the best evidence rule" (People v Flores, 138 AD2d 512, 513 [2d Dept. 1988], lv. denied 72 NY2d 859 [1988]; see, People v May, 162 AD2d 977 [4th Dept. 1990], lv denied ,76 NY2d 861 [1990]). 29 POINT II (Addressing Points II and III of Defendant's Brief) County Court properly received the exhibits as electronic records. Defendant incorrectly urges this Court to believe that electronically created records- those that never existed in physical form originally- are subject to the requirements of CPLR § 4539 [b] and failure to adhere to that section renders them inadmissible. Electronic records are different and are clearly exempt from those requirements. A. Electronic Records. The statutory authority that supports the admissibility of electronic signatures and records can be found in the New York Electronic Signature Records Act (ESRA). ESRA recognizes technological advances and requires that electronic signatures and records have the same force and effect as a pen and ink signature. Article 3 of the State Technology Law (STL) codifies the ESRA. STL § 306 states that in a proceedings where the Civil Procedure Law and Rules (CPLR) applies, an electronic record and an electronic signature may be admitted as long as the provisions of article 45 (particularly 4539) of the CPLR (business records exception) are met. Pursuant to Criminal Procedure Law (CPL) § 60, the rules of evidence for civil cases set forth in the CPLR apply in criminal cases unless there is a statutory or judicial distinction for the criminal case. Thus, an electronic signature or record is admissible in criminal cases. 30 STL § 302 defines an electronic record as information evidencing any act, transaction, occurrence, event or other activity whether it is a true and accurate representation of the electronic record, the electronic records here clearly fall within this definition. STL § 305 states that government entities can store information by electronic means and that these electronic records shall have the same force and effect as records not produced through electronic means. STL § 304 [2] states that an electronic signature may be used in lieu of a signature affixed by hand and shall have the same force and affect as one affixed by hand. With two exceptions, almost every court has accepted the electronic signatures and records of the calibration test results and the business records certification. (See People v Rath, supra.; People v Coyne, (unreported decision attached); People v Patnian, 20 Misc. 3d 298 [Justice Court, Rennselaer Cty. 2008]). Although Courts throughout the state have accepted the admissibility of electronic records, the city courts in Albany and Rochester have challenged the admissibility of calibration records and simulator solution certifications that were developed electronically utilizing electronic signatures. Those courts challenged both the use of an electronic signature and whether an electronic signature and an electronic record met the foundational and authentication requirements of the business records exception under CPLR § 4518 [ c]. 31 The City Court for the City of Rochester in People v Hernandez, 915 NYS2d 824 [Rochester City Court 2011], challenged the use of the electronic signature on both foundational grounds and on the use of a signature itself. The Rochester Court claims, citing STL § 309, that electronic signatures are only admissible if the defendant and the defendant's attorney agree to consent to utilization of the electronic signature. STL § 309 states: "Nothing in this article shall require an entity or person to use an electronic record or electronic signature." The statute only prohibits someone from being required to "use" and electronic signature, it does not require that a defendant, as is the case in these types of proceedings, consent to the use of an electronic record. No other court has supported this interpretation of the law. A. The electronic records were properly received without need to demonstrate that they had not been tampered with. Defendant's argument here hinges upon his perception of the foundational requirements for admission as trial evidence of the documentary evidence in question. Defendant explains that perception in his brief: (T)he 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 (document): (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 ... or within a reasonable time thereafter' (CPLR § 4518 [a]); (2) an (sic) 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) addressing 'the manner or 32 method (if any) by which 'tampering or degradation' of the reproduced records is prevented. (see CPLR § 4539 [b]). (Defendant's brief, pp. 9-1 0). Defendant's perception, however, is flawed and does not actually reflect the foundational requirements for electronic records. Digitally created documents, like Exhibit #8 - Simulator Solution, never existed in physical form. They, therefore, are not subject to the requirements of CPLR § 4539 [b] because it cannot be read without reference to 4539 [a]. CPLR § 4539 [a], the section immediately preceding [b], reads: (a) If any business, institution, or member of a profession or calling, in the regular course of business or activity has made, kept or recorded any writing, entry, print or representation and in the regular course of business has recorded, copied, or reproduced it by any process, including reproduction, which accurately reproduces or forms a durable medium for reproducing the original, such reproduction, when satisfactorily identified, is as admissible in evidence as the original, whether the original is in existence or not, and an enlargement or facsimile of such reproduction is admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduction does not preclude admission of the original. This language, on its face, excludes digitally created documents. In 1996 CPLR § 4539 was amended and divided into two (2) subdivisions. The new Section 4539 [a] retained all of the provisions of the old Section 4539 and added the language below: "If any business, institution, or member of a profession or calling, in the regular course of business or activity has made, kept or recorded 33 any writing, entry, print or representation and in the regular course of business has recorded, copied, or reproduced it by any process, including reproduction, which accurately reproduces or forms a durable medium for reproducing the original, such reproduction, when satisfactorily identified, is as admissible in evidence as the original, whether the original is in existence or not, and an enlargement or facsimile of such reproduction is admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduction does not preclude admission of the original." Subdivision (b), which reads as follows, was also added to Section 4539: 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. Defendant seizes on the word "reproduction" to urge that subdivision [b] applies to any electronically stored document offered into evidence. Contrary to defendant's argument, "reproduction" does not refer to a "document" which was originally created electronically and later printed out as a hard copy. "Reproduction," as used in CPLR § 4539 [b ], refers to the situation where a hard copy of an original paper document is stored electronically, perhaps by being scanned, and later printed as a "reproduction" of that original hard copy. As noted in the Practice Commentaries: The 1996 amendment to CPLR § 4539, adding subdivision [b], is also of limited utility with respect to electronic records. CPLR § 4539 [b] governs the admissibility of reproductions' of business records that 34 were originally in documentary form and then stored by means of optical scanning or imaging. Electronic records, in contrast, are created or stored by electronic means from the outset and are not within the general scope of CPLR 4539 [b]. Furthermore, CPLR 4539 [b] could have the unintended effect of restricting the admissibility of electronic records not stored with the technology described in [that statute] [Alexander, Practice Commentaries, McKinney's Cons. Laws ofNY, Book 7B, CPLR § 4518:4A, p. 454]. The same application of the statute is recognized in Weinstein, Kom & Miller, New York Civil Practice; (Lexis-Nexis Matthew Bender 2nd Ed. Vol. 9, ,-r,-r 4539.11): CPLR 4539 [b] ... expressly recognizes as an acceptable reproduction one which is created by electronic or any other technical process, provided that two requirements are satisfied: the process must store an image of the original; and the trial judge must be satisfied, based upon the authenticating testimony or affidavit, that such an image cannot be altered without leaving some detectable record that alteration has occurred. The purpose of CPLR 4539 [b] is to acknowledge and accept existing and future technologies which accomplish image storage by a variety of different methods, while also recognizing that some of those technologies permit tampering with stored images in ways that were not feasible when photocopies or microfilm images were involved. Thus when an image is scanned by a device which is controlled by a computer and stored on magnetic media, the image may be retrieved by a graphics editing program and easily altered in appearance or content. The Defendant's argument is similarly belied by the legislative intent and history of the statute. In their Memorandum in Support of the amendment, the New York State Senate recognized: Electronic data imaging, or optical disk storage, is a relatively new computer technology for the digital storage of paper documents. The document is read' by an optical scanner and stored in binary form on a 35 computer readable disk. It can then be called up so that its picture' appears on the screen exactly as it was scanned. The document, in electronic form, can then be used in the course of business, sent to other computers connected to the system or printed to make an exact duplicate of the original. Optical storage holds great potential for government, financial and insurance companies and other large businesses and institutions that must retain large volumes of documents for long periods of time. Optical disk systems are being installed in growing numbers because of the economy, efficiency, reliability and durability of the medium. The most obvious benefit is the system's electronic file cabinet' capabilities. Optical systems can put the contents of literally a warehouse full of file cabinets at an operator's fingertips. Unfortunately, government entities and businesses that adopt optical disk systems cannot take full advantage of one of the most important attributes of this technology-the ability to dispense with storage of paper records altogether. This is because of uncertainty as to the admissibility of records reproduced by optical disk technology under CPLR Rule 4539 ... If there were legal certainty as to the admissibility of optical disk records, governmental entities and businesses that use optical disk systems would realize significant cost savings from the avoidance of storage costs and the inefficient use of employee time for document filing and retrieval. Memorandum in Support, New York State Senate, 1996 McKinney's Session Laws ofN.Y., vol. 2, at 1999-2000 B. Adding language which would satisfy 4539 [b] is permissible, while not required. Defendant attaches, as Exhibit 1 to his brief, a copy of a recent certification provided by the Division of Criminal Justice Services. Of particular note, in defendant's mind, is the last sentence of the first paragraph, reading; "This record, once created, is stored in an electronic format that cannot thereafter be altered or 36 modified." As demonstrated in my argument above, this language is necessary where hard-copy originals are converted into electronic documents - most commonly by "scanning" - and the certification is of an electronic copy of such a scan. However, that's not the only reason for such language. CPLR § 4518 [a] states "An electronic record ... 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 electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record (emphasis added)." Since it is permissible for a trial court to consider whether an electronic record could have been tampered with, the Division of Criminal Justice Services and the State Police are of the view that there is no harm in adding such language. Nevertheless, it is not required where such record was created digitally in the first instance. The Second Department explored this issue in People v King, 232 AD2d Ill [2d Dept. 1997], lv. denied91 NY2d 875 [1997]: Subdivision (b) relates to optically-scanned images of business records that were originally in documentary form. In 2000, the Electronic Signatures and Records Act authorized the admissibility of "electronic records" pursuant to CPLR Article 45, "including, but not limited to" CPLR 4539. N.Y. State Technology Law§ 306. Electronic records are comprised of data that were in electronic form at the outset, such as information in a computer database. Electronic records are 37 defined 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." Id. § 302(2). The term "electronic" relates to "technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities." I d. § 302(1 ). The implication of§ 306's cross-reference to CPLR 4539 is that tangible forms of information stored in such computer databases, such as documentary printouts, qualify as "copies" or "reproductions" within the meaning ofCPLR 4539(a). Although§ 306 speaks only of the admissibility ofthe electronic record itself, the definition of electronic record requires that such record be "capable of being accurately reproduced in forms perceptible by human sensory capabilities." State Technology Law§ 302(2). Thus, there should be no need for the proponent to produce, as an exhibit, the hard drive or other electronic medium in which the electronic record is stored. 38 Conclusion In accordance with the above, the People respectfully request that the judgment of conviction and the ruling of Oneida County Court, be unanimously affirmed. 39 Respectfully submitted, SCOTT D. McNAMARA, ESQ. Oneida County District Attorney By: 4.rc 0L .. Steven G. Cox, Esq. · Assistant District Attorney, of Counsel 23 5 Elizabeth Street Utica, New York 13501 (315) 798-5766 (315) 798-5582 (FACSIMILE) DATE: IJ/rf_f) I