The People, Respondent,v.Roy S. Kangas, Appellant.BriefN.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. REPLY 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 Dated completed: November 4, 2015 i TABLE OF CONTENTS PAGE Table of Authorities ...........................................................................................................................ii Argument Point I THE COUNTY COURT CORRECTLY HELD THAT EXHIBITS 7 AND 8 WERE NOT ADMISSIBLE AS BUSINESS RECORDS OF THE ONEIDA COUNTY SHERIFF’S DEPARTMENT ..........................................................................1 Point II THE PEOPLE’S BRIEF ASSUMES “FACTS” DEHORS THE RECORD ....................................3 Conclusion .........................................................................................................................................3 ii TABLE OF AUTHORITIES Page Cases People v. Rath, 41 Misc 3d 869 (NY Dist Ct 2013) ..........................................................................3 Regina v. Friedman, 272 AD2d 461, 462 (2 nd Dep’t. 2000) ..............................................................3 Statutes CPLR §4539.......................................................................................................................................3 State Technology Law §306 ..............................................................................................................3 1 I. THE COUNTY COURT CORRECTLY HELD THAT EXHIBITS 7 AND 8 WERE NOT ADMISSIBLE AS BUSINESS RECORDS OF THE ONEIDA COUNTY SHERIFF’S DEPARTMENT. On appeal the Oneida County Court held that the documents contained in Exhibits 7 and 8 should not have been admitted pursuant to CPLR §4518 as business records of the Oneida County Sheriff’s Department [OCSD] (A. 9). The County Court reasoned that the original records of the maintenance, testing and calibration of the DataMaster instrument and simulator solution record were made and kept in the regular course of business of the NYSDCJS and NYSPFIC agencies of the State of New York. The County Court concluded that the certification of the OCSD records clerk alleging that the documents were exact photocopies of original records made and kept in the regular course of business of the OCSD was “erroneous” (A. 8). In their Brief before this Court the People maintain that the documents “are originals” “and while they were ‘made’ elsewhere, they were ‘routinely relied on’ by the OCSD and used in the ordinary course of business of the OCSD . . .”. (Brief @ 14). The People propose that “[s]ince OCSD routinely relied on these reports, and uses these reports in the regular course of their business, they are ‘circumstantially familiar’ with them, and they qualify as business records of OCSD despite the fact that the original reports were made at a different agency” (Brief @ 17). The People are mistaken. A review of the record before this Court conclusively establishes that the documents possessed by OCSD are neither “originals”, nor were members of OCSD “circumstantially familiar” with them. The certifications of NYSDCJS employee John Digman contain the following language: “. . . that the copies annexed hereto are exact photocopies of original records of the Office of Public Safety which are in my possession, custody and control.” (A. 27, 30). 2 As certified by Digman, OCSD was provided photocopies and the original records remained in the possession, custody and control of NYSDCJS - Office of Public Safety (A. 27, 30). The record further establishes that members of the OCSD were not “circumstantially familiar” with the records in question. At the trial of this matter Exhibits 7 and 8 were not subpoenaed directly to the court, but were offered for admission from the briefcase of the Assistant District Attorney through witness Sean McVicar [McVicar] (A. 151, 157). McVicar was an Oneida County Sheriff’s Deputy at the time of the defendant’s arrest (A. 148), but at the time of his testimony was no longer an employee of OCSD (A. 148). McVicar testified that he was no longer a certified breath test operator, as his DataMaster certification had expired (A. 148). McVicar when questioned about Exhibit 8 was unable to explain the calibration information that was contained within the NYSDCJS document stating “I’m not trained to the inner workings of the instrument. I’m trained as an operator only” (A. 169). McVicar, to his credit, admitted that he was not familiar with the documents and was did not know if they were kept in the ordinary course of business of OCSD: Q. Okay. Have you ever seen those documents before? A. Not prior to today. Q. That is the first you laid your eyes on that? A. This morning, yes. Q. Do you know if that’s kept in the ordinary business? A. According to these certified records. Q. Do you know if those are kept in the ordinary course of business? A. This is not something I am generally part of. (A. 167). 3 The People’s claim that members of OCSD are “circumstantially familiar” with the documents of the state agencies is belied by the record. The County Court’s determination that the documents contained in Exhibit 7 and 8 should not have been admitted pursuant to CPLR §4518 as business records of OCSD should be affirmed. II. THE PEOPLE’S BRIEF ASSUMES “FACTS” DEHORS THE RECORD. The People argue that the Exhibit 7 containing the Simulator Solution Record and Exhibit 8 containing the Inspection/Maintenance/Calibration Record “never existed in physical form” (Brief @ 17 & 24). However, there is nothing in this record to support such a claim. It would appear that the “facts” were adopted from People v. Rath, 41 Misc 3d 869 (NY Dist Ct 2013). More critically there is nothing in this record to identify the “physical form” the documents were in when they were received by OCSD or the format they are stored in after they were received. Appellate review is limited to the record made on the proceeding below and absent matters that may be judicially noticed new facts may not be injected at the appellate level. Regina v. Friedman, 272 AD2d 461, 462 (2 nd Dep’t. 2000). The People’s reliance on facts dehors the record should not be considered on this appeal. CONCLUSION It is respectfully submitted that the Legislature when they enacted the State Technology Law recognized the need to safeguard the integrity of the electronic data that was stored. In doing so the Legislature adopted State Technology Law §306 and the implication of its cross- reference to CPLR §4539. The process to admit electronic record or electronic signature evidence pursuant to CPLR §4539 is not onerous. An affidavit from the data administrator including the manner or method by which tampering or degradation of the reproduction is prevented, stapled to the face of the electronic record sought to be admitted, would suffice.