The People, Respondent,v.Robert Pealer, Appellant.

Brief

N.Y.January 3, 2013

Estimated time: 15 minutes To be argued by: John A. Cirando, Esq. Syracuse, New York STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff/Respondent, against ROBERT B. PEALER, Defendant/Appellant. Yates County Indictment No. 08-78 Appellate Division Docket No. KA-II-OI024 THE DEFENDANT/APPELLANT'S BRIEF D.J. & J.A. ClRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel TABLE OF CONTENTS PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 2 THE HEARING............................................................................................................................. 11 THE PEOPLE' S CASE 11 THE TRIAL................................................................................................................................. 18 THE PEOPLE'S CASE 18 THE APPELLANT' S CASE 28 REBUTTAL 33 POINT I 34 THE DISTRICT ATTORENY OF SENECA COUNTY WAS NOT AUTHORIZED TO PREPARE, FILE AND SERVE THE PEOPLE'S BRIEF IN THE APPELLATE DIVISION. POINT II 36 THE POLICE STOP OF APPELLANT'S VEHICLE WAS IMPROPER. POINT III 41 APPELLANT WAS PREJUDICED BY DEPUTY LERCH'S TESTIMONY THAT APPELLANT REQUESTED TO SPEAK TO AN ATTORNEY PRIOR TO SUBMITTING TO A BREATH TEST. POINT IV 45 APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE TRIAL COURT ADMITTED CERTIFIED DOCUMENTS INTO EVIDENCE UNDER THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE. POINT V 54 APPELLANT WAS DENIED DUE PROCESS OF LAW DUE TO PROSECUTORIAL MISCONDUCT. POINT VI 60 THE TRIAL COURT ERRED IN ALLOWING IMPROPER AND PREJUDICIAL REBUTTAL TESTIMONY. POINT VII 64 APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED. CONCLUSION 66 THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR IN THE ALTERNATIVE, A NEW TRIAL ORDERED. ii TABLE OF AUTHORITIES Cases Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 2710 [2011] 45, 47, 48, 53 Crawford v. Washington, 541 U.S. 36, 68 [2004] 46, 47, 48, 49, 53 Davis v. Washington, 547 U.S. 813, 830 [2006] 53 Green v. DeMarco, 11 Misc.3d 451, 464-468 49 In the Matter ofHaggertv v. Himelein, 89 N.Y.2d 431, 436 [1997] 35 Marshall v. Davies, 78 N.Y. 414, 420 60 Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 [2009]. 47, 48, 50, 51, 53 People v. Adilovic, 34 Misc.3d 159A [2012] 49 People v. Alicea, 37 N.Y.2d 601, 605 54, 55, 59 People v. AI-Kanani, 26 N.Y.2d 473, 478 42,44 People v. Ashwal, 39 N.Y.2d 105, 109-110 57 People v. Bailey, 58 N.Y.2d 272, 277 54 People v. Benson, 34 Misc.3d I226A [2011] 49 People v. Bianculli, 9 N.Y.2d 468, 472 42, 44 People v. Brooks, 21 Misc.3d 1132[A] 49 People v. Brown, 13 N.Y.3d 332 [2009] 48, 52 People v. Carreira, 27 Misc.3d 293, 297 50, 51, 53 People v. Castro, 101 AD.2d 392, 398, aff'd 65 N.Y.2d 683 60 People v. Chin, 138 AD.2d 389, 390-391 57 People v. Crimmins, 36 N.Y.2d 230, 241 63, 64 People v. Cruz, 100 A.D.2d 882, app. denied 84 N.Y.2d 1035 55 People v. Damato, 79 AD.3d 1060, 1061 [2nd Dept. 2010] 49 People v. Detore, 34 N.Y.2d 199 54 People v. DiFalco, 44 N.Y.2d 482, 486 34 People v. Fisher, 18 N.Y.3d 964 [2012] 44,59 People v. Fisher, 9 Misc.3d 1121 [A] 50 People v. Freycinet, 11 N.Y.3d 38 [2008] 49 People v. Gaimari, 176 N.Y. 84 46 People v. Goldston, 6 AD.3d 736, 737 41 People v. Harris, 84 A.D.2d 63, 69, affd 57 N.Y.2d 335, cert. denied, 460 U.S. 1047 [1983] 60 People v. Higgins, 88 A.D.2d 921, app. denied 57 N.Y.2d 678 54 People v. Huertas, 75 N.Y.2d 487, 491-492 46 People v. Hulbert, 93 AD.3d 953, 954 [3'd Dept. 2012]. 49 People v. Hunt, 18 AD.3d 891 [2005] 41, 44 People v. Ingle, 36 N.Y.2d 413, 420 37 People v. Kanhai, 8 Misc.3d 447, 449-453 50 People v. Kelly, 26 Misc.3d 1205[A] 49 People v. Krueger, 9 Misc.3d 950, 953-957 50 People v. LaBrecht, 13 Misc.3d 45, 49-50 49 People v. Mellott, 10 Misc.3d 1056[A] 49 People v. Mertz, 68 N.Y.2d 136, 148 45 People v. Millard, 247 AD. 253 54, 55, 59 People v. Mott, 94 AD.2d 415, 418 [4th Dept.] 55 People v. Nieves, 67 N.Y.2d 125, 131... 46 III People v. Pealer, 89 A.D.3d 1504 [4th Dept. 2011] 1,45 People v. Rawlins, 10 N.Y. 3d 136 [2008] 49, 52 People v. Rivera, 116 AD.2d 371 55 People v. Robinson, 71 AD.2d 1008 64 People v. Robinson, 97 N.Y.2d 341, 348-349 36, 40, 41 People v. Rose, 67 A.D.3d, 1447, 1448 36 People v. Schwartzman, 24 N.Y.2d 241, 245-246, cert. denied, 396 U.S. 846 [1969] 60 People v. Settles, 46 N.Y.2d 154 46 People v. Toomer, 87 AD.2d 875 54 People v. Travato, 309 N.Y. 382, 386 42, 44 People v. Tucker, 133 AD.2d 787, app. denied, 70 N.Y.2d 878 64 People v. Von Weme, 41 N.Y.2d 584, 587-588 41 People v. Whalen, 59 N.Y.2d 273 55 People v. Williams, 28 AD.3d 1059, 1063 [4th Dept.] 55 People v. Wright, 42 AD.3d 942, 943 [4th Dept.] 36 People v. Wright, 98 N.Y.2d 657, 658-659 [2002] 40, 41 People v. Zimmer, 51 N.Y.2d 390, 393 54 United States v. Gorder, 726 F.Supp.2d 1307, 1314 (D. Utah, 2010) 51 Whren v. United States, 517 U.S. 806, 810 [1996] 36 Statutes IS N.Y.C.R.R. §174.1 38, 40 County Law §700[8] 34, 35 County Law §701 [I] 34 County Law §701 [I][a] 35 Criminal Procedure Law §200.60 4 Criminal Procedure Law §7l0.30 4 Title IS N.Y.C.R.R. §§174.2-174.6 38 Title IS N.Y.C.R.R. §174.1 38,39 Title IS N.Y.C.R.R. Part 174 36, 39 Title IS N.Y.C.R.R. Part 174, Regulatory Impact Statement 7 38 Title IS N.Y.C.R.R. Part 175, Regulatory Impact Statement 3 38 Vehicle & Traffic Law §1192[2] 3 Vehicle & Traffic Law §1192[3] 3 Vehicle & Traffic Law §1193[1][c][ii] 3 Vehicle & Traffic Law §375[1][b][i] 8, 36, 39 Vehicle and Traffic Law §1192 3, 45 Vehicle and Traffic Law §1194 45 Vehicle and Traffic Law §375(l)(b)(i) 2, 38 Vehicle and Traffic Law §375[1][b] 39 Vehicle and Traffic Law §375[1][b][i] 41 Other Authorities Prince, Richardson on Evidence, §8-102 [II th Ed.] 46 Rules Federal Rules of Evidence, Rule 801 46 Federal Rules of Evidence, Rule 802 46 IV QUESTIONS PRESENTED 1. Whether the Seneca County District participated in the instant appeal? Attorney properly 2. Whether the trial court erroneously ruled that the police stop of appellant's vehicle was proper? 3. Whether appellant was prejudiced by testimony that he had requested to speak to an attorney prior to submitting to the breath test? 4. Whether appellant was denied his Constitutional right to confront the witnesses against him when the trial court admitted, over defense objection, certain records into evidence without live testimony from the persons who created the records? 5. Whether appellant was denied due process of law due to prosecutorial misconduct? 6. Whether the trial court erred in permitting the improper and prejudicial rebuttal testimony? 7. Whether appellant's Constitutional right to a fair trial was violated as a result of the aggregated effect of numerous errors during his trial? v STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff/Respondent, against ROBERT B. PEALER, Defendant/Appellant. Yates County Indictment No. 08-78 Appellate Division Docket No. KA-I 1-01024 THE DEFENDANT/APPELLANT'S BRIEF PRELIMINARY STATEMENT This is an appeal, by the defendant, from a Memorandum and Order of the Appellate Division, Fourth Department, entered on November 18, 2011, which unanimously affirmed his judgment of conviction for DRIVING WHILE ABILIY IMPAIRED and the crime of DRIVING WHILE INTOXICATED (as a Felony), following a jury trial in Yates County Court (W. Patrick Falvey, J.) (People v. Pealer, 89 A.D.3d 1504 [4 ili Dept. 2011]). Defendant was sentenced on December 8, 2009 by Yates County Court Judge W. Patrick Falvey to serve 15 days in j ail for DRIVING WHILE ABILITY IMPAIRED, and to serve an indeterminate 1 term of imprisonment having a minimum term of two and one-third years and a maximum term of seven years for the crime of DRIVING WHILE INTOXICATED (as a Felony). A 90 day suspension of license was also imposed for DRIVING WHILE ABILITY IMPAIRED, and a one year revocation of license for the crime of DRIVING WHILE INTOXICATED (as a Felony). A $5,000 fine and mandatory surcharges in the amount of $520 and $280 were also imposed. STATEMENT OF FACTS The police received an anonymous call that a possibly intoxicated driver was operating a gray vehicle with a sticker on the rear window (l10a-111a, 114a, 129a, 147a). Officer Crandall located the vehicle, followed it and while observing no moving violations, stopped the vehicle because it had an unauthorized "FLCC" [Fingerlakes Community College] sticker on the lower left corner of the rear window in violation of Vehicle and Traffic Law §375 (1) (b) (i) (112a-113a, 130a, 132a-135a). The defendant failed the field sobriety tests, the subsequent breathalyzer test, and was charged by way of Felony Complaint with the crimes of DRIVING WHILE INTOXICATED (20a, 22a, 24a, 117a-118a, 120a-122a, 136a-138a, 142a-146a, 155a). Upon arraignment before Penn Yan Village Court Justice Danny M. Hibbard that same day, October 19, 2008, appellant was released on his own recognizance (22a). However, it was later discovered that the Village Court 2 appellant filed a Motion seeking an his own recognizance or setting had lacked the authority to release appellant due to his prior felony convictions (22a). On October 20, 2008, appellant was arrested pursuant to a warrant (22a). He was then re-arraigned and held without bail (22a) . On October 21, 2008, Order releasing him on reasonable bail (18a-21a). On October 22, 2008, the People filed their Affirmation in Response to Appellant's Bail Application (22a-23a). The People opposed appellant's request to be released on his own recognizance, but did not oppose the setting of reasonable bail, suggesting bail in the amount of $20,000 cash or $40,000 fully insured bond (22a-23a). Indictment No. 08-78 was returned by the Yates County Grand Jury, on December 5, 2008 (24a). Appellant was charged with DRIVING WHILE INTOXICATED in violation of Vehicle & Traffic Law §§1192 [3] and 1193 [1] [c] [ii] and with DRIVING WHILE INTOXICATED PER SE: DRIVING WITH .08 OF ONE PER CENTUM OF MORE BY WEIGHT OF ALCOHOL IN BLOOD in violation of Vehicle & Traffic Law §§1192[2] and 1193 [1] [c] [ii] (24a). In particular, appellant was alleged to have operated a motor vehicle at 1:26 a.m. on October 19, 2008, while in an intoxicated condition, specifically, when the weight of alcohol in his blood was .15% (24a). 3 Also on December 5, 2008, the people filed a Special Information charging Predicate Offenses pursuant to Criminal Procedure Law §200.60 (26a). In particular, the People charged that appellant had twice been convicted of felony DRIVING WHILE INTOXICATED, both convictions occurring on June 19, 2002 for separate incidences on occurring on March 9, 2002 and April 17, 2002, respectively (26a-28a). Appellant was notified, on December 5, 2008, that he was to appear before Yates County Court, on December 16, 2008, for arraignment (25a). When appellant and his counsel both failed to appear for arraignment on December 16, 2008, defense counsel indicated via telephone conversation that he had not been aware that a Notice to Appear had been served or that appellant had been indicted (30a-32a). Arraignment was therefore adjourned until December 23, 2008 (32a). On December 23, 2008, appellant was arraigned and entered a requestedplea of not investigation guilty (36a, (35a). Appellant 53a-55a) . The trial court a pre-plea continued appellant's $5,000 cash bail, and appellant was admonished to not leave the State without permission (37a-39a, 52a). Also on December 23, 2008, the People filed their Notice pursuant to Criminal Procedure Law §710.30, Declaration of Readiness, Alibi Demand, Demand for Reciprocal Discovery, and 4 Notice of Intention to Offer Tangible property (39a, 41a-47a, 4Ba, 49a, 50a, 51a). Appellant's Omnibus Motion was filed on April 7, 2009 (56a- 72a). Appellant requested several types of relief, including several Hearings, including those pursuant to Sandoval, Robinson, ~, Parris, Minutes and Dismissal and Huntley; review of of the Indictment; the Grand Jury suppression of evidence; preclusion of non-noticed evidence; Coleman relief; the compelled pre-Hearing and pre-Trial disclosure of Rosario material; leave to submit Memoranda of Law; and leave to submit subsequent relevant Motions (56a-72a). On April 7, 2009, appellant declined a plea offer to plead guilty to the felony of DRIVING WHILE INTOXICATED with two to six years imprisonment, revocation of license, a mandatory surcharge, and a fine of $5,000 (75a, 77a). Motion proceedings were scheduled for April 21, 2009, and appellant's Omnibus Motion was accepted for filing with the trial court (75a-76a, 77a, 7Ba). Appellant's bail was continued at $5,000 cash (77a- 7Ba) . On April 20, 2009, the People filed their Affirmation in Opposition to appellant's Omnibus Motion (BOa-B2a). The People opposed the relief requested by appellant, but did not oppose the holding of any pertinent Hearings and the in-camera review of the Grand Jury minutes (BOa-B2a). 5 Proceedings to Argue Pre-Trial Motions were held on May 12, 2009 (84a-96a). The trial court granted appellant's request for a Sandoval Hearing (84a, 94a-95a). The trial court also granted in-camera review of the Grand Jury Minutes, and denied dismissal of the Indictment without prejudice to the review of the Minutes (85a, 92a-94a). A Huntley Hearing and Hearing to determine the probable cause for the traffic stop of appellant's vehicle were granted (85a-86a, 94a-95a). The trial court denied appellant's Discovery requests and Coleman application as moot, and denied appellant's request for a Parris Hearing, without prejudice (88a, 89a-90a). Appellant's requests to file future Motions and to file Memoranda of Law were denied without prejudice to renewal and/or application on good cause shown (88a-89a). The trial court stated that there was no cause for it to recuse itself, because it can be fair and impartial in these proceedings, even though it had recused itself on a prior case involving appellant (90a-91a). An Order setting forth the trial court's Decision on appellant's Omnibus Motion was filed on May 28, 2009 (98a-99a). On June 4, 2009, the trial court denied appellant's Motion to Dismiss the Indictment on the ground that the Grand Jury proceedings were deficient and/or the evidence submitted to the Grand Jury was legally insufficient (100a-106a). 6 All pre-trial Hearings --- Huntley and probable cause for the traffic stop --- were held on July 7, 2009. The trial court reserved Decision on probable cause, giving the parties time to prepare written submissions on the issue (160a). with respect to Sandoval issues, the trial court precluded reference to any of appellant's convictions prior to, and including, his August 8, 1995 conviction, as they were too remote (164a). The trial court permitted the People to inquire whether appellant had previously been convicted of three prior felonies with respect to his DRIVING WHILE INTOXICATED convictions arising out of arrests on February 1, 1998, March 9, 2002, and April 17, 2002 and whether appellant had been convicted of a felony with respect to his conviction for AGGRAVATED UNLICENSED OPERATION OF A MOTOR VEHICLE IN THE FIRST DEGREE (165a). The trial court denied the People permission to make any reference to appellant's prior traffic infractions for SPEEDING and LEAVING THE SCENE OF AN ACCIDENT (165a-166a). The trial court's Sandoval ruling was also set forth in an Order, filed September 11, 2009 (211a-212a). On July 14, 2009, appellant filed a Memorandum of Law, arguing that there was not adequate probable cause for the police to stop his vehicle (175a-177a). Appellant specifically argued that the anonymous phone tip lacked sufficient reliability to justify the stop in and of itself, and that the police did not observe any other traffic infractions that would 7 substantiate that tip (176a). Furthermore, appellant argued that the People failed to establish that the sticker on appellant's rear window was unauthorized and, therefore, a traffic violation pursuant to Vehicle & Traffic Law §375 [1] [b] [i] (176a-177a) . Appellant concluded that because the traffic stop was not supported by probable cause, all evidence resulting from that illegal stop must be suppressed (177a). The People filed their responding Memorandum of Law on July 17, 2009 (178a-180a). The People contended that the stop of appellant's vehicle by the police was supported by probable cause due to the presence of the unauthorized sticker on the rear window (178a). The People also contended that the anonymous tip was sUfficiently corroborated to serve as a basis for the traffic stop (179a). On August 13, 2009, the trial court entered its Memorandum- Decision and Order on the issue of whether there had been probable cause for the traffic stop (194a-203a). The trial court denied appellant's Motion to Suppress Evidence, concluding that the sticker on appellant's rear window was unauthorized, and therefore provided probable cause for the stop of his vehicle by police (198-199a). The trial court did note that the anonymous tip was insufficient to justify the stop, as was the observation of appellant weaving within his own lane (199a-200a). The trial court concluded that once the traffic stop occurred, the 8 observations of Officer Crandall and appellant's failure to pass the field sobriety tests and breath screen provided reasonable cause for appellant's arrest (200a-201a). Finally, the trial court concluded that appellant's statements were made voluntarily and not in violation of appellant's Constitutional rights (201a-203a). Appellant's trial commenced on September 14, 2009 and it continued on September 15 and 16, 2009 (1-481). Prior to the commencement of the trial, appellant admitted his two prior felony DRIVING WHILE INTOXICATED CONVICTIONS, as set forth in the People's December 5, 2008 Special Information (8-9). At the close of the People's proof, defense counsel made a general Motion to Dismiss on the grounds that the People failed to make a prima facie case with respect to all the elements of the two charges in the Indictment (312). The trial court reserved Decision (312). After the defense concluded its case, defense counsel renewed his earlier Motion to Dismiss (372). The trial court again reserved Decision (372). During deliberations, the jury sent a note (C.E. #3, 509- 510) to the trial court, inquiring whether a breathalyzer machine would detect menthol cough drops and medications. The trial court advised the jury that it could not answer their question (445-446). 9 Appellant was ultimately found not guilty of the charge of DRIVING WHILE INTOXICATED, but guilty of the lesser-included offense of DRIVING WHILE ABILITY IMPAIRED, and guilty of DRIVING WHILE INTOXICATED (as a Felony) (475-476, 508) 0 A Pre-Sentence Report was ordered (479, 519) 0 Appellant's bail was revoked and he was remanded to the custody of the Yates County Sheriff pending sentencing (480) 0 On December 1, 2009, appellant filed a Sentencing Memorandum in which he requested that he be sentenced to the Comprehensive Alcohol Substance Abuse Treatment Program (521) 0 On December 8, 2009, appellant was sentenced as previously indicated (5a, 6a, 7a, 8a, 524-533, 534) 0 The trial court did recommend that appellant take part in any drug treatment/CASAT program that is available (532-533). Notice of Appeal was filed on December 11, 2009, and was received by the District Attorney's Office on December 15, 2009 (3a-4a) 0 By Memorandum and Order, entered November 18, 2011, the Appellate Division, Fourth Department unanimously affirmed the Judgment of Conviction (539-541) 0 The Appellate Division held that: the admission of the simulator solution certificate (PoE. #6) and the breath test calibration (PoE. #6) did not violate appellant's rights under the Confrontation Clause; the stop of appellant's vehicle was proper due to the traffic infraction--- 10 unauthorized sticker on window of vehicle; and any remaining contentions were without merit (539-541). By Certificate Granting Leave, entered March 14, 2012, Leave to Appeal to the Court of Appeals was granted by Hon. Carmen Beauchamp Ciparick, Associate Judge of the Court of Appeals (542). Appellant is currently serving his sentence, with work release, at Rochester Correctional Facility. THE HEARING Two witnesses testified on behalf of the People (hereinafter referred to as "P. H. W. No. "), and no witnesses testified on behalf of appellant. six exhibits were marked for identification, and three were received into evidence on behalf of the People (hereinafter referred to as "P.H.E. # "). No exhibits were marked for identification or received into evidence on behalf of appellant. THE PEOPLE'S CASE 1. KIRK CRANDALL (Penn Yan Police). On the night in question, he was in a marked patrol vehicle and in uniform (138a). He did have a weapon on his person (138a). During the night of October 19, 2008, the Penn Yan Police Department received an anonymous telephone call regarding a gray vehicle with a sticker in the rear window leaving sarrasin's 11 Restaurant that was being operated by one Robert Pealer, who was possibly intoxicated (110a-111a, 114a, 129a, 147a). Dispatch notified him of the call at approximately 1:15 a.m., and he went to investigate (llla, 128a-129a, 146a, 147a). At approximately 1:26 a.m., he was sitting in a parking lot on Lake Street in the Village of Penn Yan when he observed a gray 1996 Subaru driving east on South Avenue (llla, 129a). He then commenced following the vehicle, as it matched the description in the call (130a). The vehicle had an unauthorized "FLCC" (Finger Lakes Community College) sticker on the lower left corner of the rear window, which is a violation of the Vehicle and Traffic Law, and was weaving within its lane, which is not a violation of the Vehicle and Traffic Law (112a, 130a, 132a). He followed the vehicle for approximately four minutes, during which time he did not observe the vehicle cross the center or white fog lines, fail complete stops at signs,to make signals (132a-133a) . Based upon or fail his to make appropriate observation of the unauthorized sticker, he initiated a vehicle stop on Clinton Street by activating his vehicle's emergency lights (112a, 113a, 134a). The gray Subaru then slowed down within its lane, mayor may not have stopped for a few seconds, and then pulled onto the right shoulder without first signaling (113a, 134a-135a). He then approached the vehicle and asked the operator for his license and registration (113a, 114a-115a, 135a). Appellant was 12 the operator of the vehicle, and provided the requested documents without him noting any fumbling (113a, lISa, 13Sa-136a). He asked appellant where he was coming from, and was advised by appellant that he had been at work at Sarrasin's (see P.H.E. #2) (lISa). He also asked appellant whether had had anything to drink that evening, to which appellant responded that he had had two beers after work (see P.H.E. #2) (117a, 137a-138a). He observed that appellant's eyes were red and glossy, his speech was impaired, and the odor of alcohol was coming from his person (l17a-118a, 136a- 137a) . Appellant had not requested a lawyer prior to making any statements (117a). He had not threatened appellant, nor made appellant any promises, in order to compel appellant to make statements (117a). No formal criminal proceedings had been commenced against appellant for the charges on which he was arrested at that point (117a). Appellant, however, was not free to leave at that point (138a). He then asked appellant to engage in field sobriety tests (118a). He first asked appellant whether he had any disabilities that he should be aware of, to which appellant responded that he had a prior neck injury (118a, 142a). The field sobriety tests were then performed on the side of the road, which was flat with a gravel base, and included requests that appellant perform the horizontal gaze nystagmus, the walk-and-turn, the one-leg stand, 13 the finger-to-nose, finger count, and Romberg tests (118a, 138a, 142a-143a). Appellant refused to perform the one-leg stand and walk-and-turn tests, saying that he could not perform them (l18a- 119a). Appellant was not free to leave during the field sobriety testing (142a). In performing the horizontal gaze nystagmus test, he told appellant to look at the tip of his pen and watch it as he moved it side to side (120a, 139a). Appellant was wearing glasses that night, and he did not have appellant remove those glasses prior to performing the test (138a-139a). There is no set number of passes that he must make with the pen --- instead, he continues to move the pen until he gets the results for each of the three categories he is examining for (139a-141a). Appellant did not lack smooth pursuit of the pen tip with his left and right eye, but had nystagmus onset of 45 degrees in both eyes (120a). For the finger-to-nose test, he gave appellant verbal instructions, as well as a demonstration, on how to perform the test (120a). He instructed appellant to place both hands to his sides with feet together; to then tip his head back, close his eyes, and touch the tip of his finger to the tip of his nose with the hand instructed; and finally, to place his hand back to his side without any instruction to do so (120a). He had appellant perform the requested procedure six times (143a). Appellant twice touched the middle of his nose rather than the tip, and failed all 14 six times to follow the instructions to place his hand back towards his side after touching his nose (120a-12la, l43a-144a). Appellant did use the correct finger and arm each time (144a). Appellant did not fall over while performing this test (145a). To complete the Romberg test, he instructed appellant to close his eyes and to indicate when he believed 30 seconds had expired either verbally or by opening his eyes (12la, l45a). Appellant opened his eyes at 22 seconds and indicated that he actually believed 35 seconds had expired (12la, l44a). Appellant did not lose his balance during this test (145a). For the finger count test, he gave appellant verbal instruction and a demonstration that he should touch his thumb to each of his fingers, counting out loud, starting with the forefinger, "one, two, three, four," and then backwards from the pinky finger "four, three, two, one" (12la). Appellant did not follow these instructions, having tried twice to perform the test, asking again how be shown how to perform the test, and failing to begin with the pinky during the second series during his third attempt to perform the test (12la-122a, l46a). During the field sobriety testing, he continued to detect the smell of alcohol coming from appellant's person, and observed that appellant's coordination was impaired (122a). 15 He thereafter asked appellant to undergo a breath screening (122a). Appellant agreed to this screening, which came back positive for .08 or greater blood alcohol content (122a). Having concluded that appellant was intoxicated based upon his personal observations and the field sobriety tests, he arrested appellant at 1:44 a.m. by advising appellant that the arrest was for DRIVING WHILE INTOXICATED and placing him in handcuffs (122a-123a). Upon arresting appellant, he read appellant the Miranda and D.W.I. warnings, which included advising appellant of the consequences of any failure to submit to a chemical test to determine the alcohol content of his blood (123a-125a). After being so advised, appellant indicated that he would consent to such a chemical test and that he did understand his Miranda rights (124a, 125a). He then notified Yates County dispatch that he had a person in custody and asked if a chemical test operator was on duty (125a). He was advised that a chemical test operator was on duty, so he then transported appellant to the Yates County Public Safety Building for testing (125a). Upon arrival the Public Safety Building he met Corrections Officer Lerch (P.H.W. No.2), who is also a breath test operator (125a). Lerch then asked appellant a series of questions and was read refusal warnings (125a-126a). Appellant did ask to speak to an attorney during this time (126a). Appellant then used the 16 telephone (126a). After this, he was again asked if he would submit to the chemical test, which he did (126a). A traffic ticket for the unauthorized sticker was issued to appellant (112a, 130a)'. 2. ANTONIA LERCH (Breath Test Operator) . On October 19, 2008, she administered a breath test to appellant (149a). She first came into contact with appellant at 1:55 a.m. (149a-150a). At that time, she interacted with appellant, the substance of which she then documented (P.H.E. #4-5) (150a-151a). Appellant communicated that he had last consumed alcohol at Sarrasin's Restaurant (151a-152a). She then asked appellant if he were ill, diabetic, had false teeth or anything in his mouth, if he was taking any medication or drugs, and if he was under a doctor's care (152a). Appellant informed her that he was not ill or diabetic but that he was under a doctor's care; took several medications, including Hydrocodone, Gabapentin, and Omeprazole; and did have false teeth in his mouth (153a). After she read appellant his warnings and asked whether he would be willing to take the breath test, appellant requested to speak to an attorney (153a, 154a-155a). Appellant was then permitted, and actually did, call an attorney (153a, 155a). She then re-read appellant the DWI warnings and again asked whether he I The Record on Appeal does not reflect the disposition of the unauthorized sticker traffic ticket. 17 would submit to a breath test (154a, 155a). Appellant would not provide a yes or no answer (155a). She then re-read the DWI rights to appellant for a third time, after which he did consent to take the breath test (155a). She did not make any threats or promises to induce appellant to consent to the breath test (155a). Appellant exercised his constitutional right not to testify at the Hearing. THE TRIAL Four witnesses testified on behalf of the People (referred to as "P.W. No. --") , five witnesses testified on behalf of as appellant rebuttal (referred to as witness (referred "A.W. to No. " ) I "P.R.W. and there No. __It). was one Fourteen exhibits were marked for identification on behalf of the People, and eight were received into evidence (referred to as "P.E. #__"). Four exhibits were marked for identification and received into evidence on behalf of appellant (referred to as "A.E. #__"). There were seven Court Exhibits. THE PEOPLE'S CASE 1. KIRK CRANDALL (Penn Yan Police). On October 19, 2008, at approximately 1:12 a.m., he was on patrol in the Village of Penn Yan (207, 221). At that time, he was notified by Yates County Dispatch that an anonymous call was received regarding a possible intoxicated driver leaving Sarrasin's Restaurant in a gray Subaru with a "FLCC" (Finger Lakes 18 Community College) sticker in the rear window (see D.E. #A, B, and C) (207-208, 221). After receiving the call, he drove down to Lake Street near the restaurant, and parked his vehicle in the parking lot of Knapp & Schlappi (208). At some point, he observed a gray Subaru with the Finger Lakes Community College sticker in the rear window (see D.E. #A, B, and C) pulling out of the restaurant parking lot (208, 221). He began following the vehicle when it turned onto South Avenue, and continued to follow it for four minutes, during which time the vehicle traveled less than one-quarter of a mile (222, 224). As he was following the vehicle, he noticed that it was weaving within its own lane, but testified that he did not know whether appellant crossed out of his lane because there was neither center nor fog lines on the street (208, 222-223, 224). He did not ticket appellant for failure to stay in his lane, stating that without the lines on the road, he could not verify whether appellant committed a traffic infraction (223, 224). He testified both that appellant had come to stop signs and that appellant had not come to any stop signs, but regardless, did not issue any tickets to appellant for failure to stop at a stop sign (222). He had no reason to believe that appellant was speeding at any point, and did not issue any speeding tickets (223). Although appellant went onto different roads, he denied that appellant made any turns that required a turn signal (223-224). The Finger Lakes Community 19 College sticker in the rear window was an unauthorized sticker, which is a violation of the Vehicle and Traffic Law, regardless of its size and amount of resulting obstruction (208-209, 225-226). He ultimately performed a traffic stop on the vehicle by activating his patrol vehicle's emergency lights while on Clinton Street (209, 210, 224, 226). Appellant did not immediately pull over, but instead slowed down or stopped first in his lane and then pulled over off the right side of the road (226-228, 242- 243). He then exited his patrol vehicle, approached the Subaru's driver's side window, and asked the operator for his license and registration (209, 228). At that time, the operator --- appellant --- turned over a driver's license with the name "Robert Pealer," without any documented difficulty (209-210, 228-229). He asked appellant where he was coming from, and appellant responded that he was going home from work at Sarrasin's Restaurant (210, 229). When asked if he had anything to drink, appellant responded that he had had two beers after work (210, 229). He observed during this conversation that appellant had red, glossy eyes and that the odor of alcohol was coming from his person (211, 229). He acknowledged that neither of these observations meant that appellant was necessarily intoxicated (229-230). He then asked appellant to engage in field sobriety tests on the side of the road, which was flat gravel (211-212, 230). Appellant did not have any difficulty walking after exiting his 20 vehicle (243-244). Prior to administering these tests, he asked appellant whether he had any disabilities he should be aware of, at which point appellant indicated that he had a prior neck injury (211, 235). He asked appellant to perform six tests the horizontal gaze nystagmus, the walk-and-turn, the one-leg stand, the finger-to-nose, the finger count, and Romberg tests (212, 235- 236). Of these tests, appellant would not perform the walk-and- turn or one-leg stand tests (212). The horizontal gaze nystagmus test essentially looks for involuntary bouncing of the eyes when gazing to the side --- more specifically, he passes a stimulus before a subject's face, asking them to follow it with their eyes, during which time he is looking for a lack of smooth tracking in the eyes, a nystagmus onset of 45 degrees, and then nystagmus at maximum deviation (212-213, 232- 233, 243). It is not always necessary to require a subj ect to remove their glasses prior to performing this test, and he did not have appellant do so (232). He had appellant perform this test, with a failing result because appellant lacked smooth pursuit of the pen tip with his left and right eye and had nystagmus onset of 45 degrees in both eyes (213 -214, 243). He does not recall the number of times he passed the stimulus before appellant's face, but believes it would have been at least four (214). Prior to administering the finger-to-nose test, he first gave appellant verbal instructions, as well as a demonstration, on how 21 to perform the test (214, 236). Appellant was directed to place both hands to his sides with his feet together, to then take the finger directed, bring it up, touch the tip of his nose, and to place his hand back down to his side all while his eyes were closed and head tipped back (214, 236). Appellant did not place his hand back to his side each time he was requested to perform this task, and two times he touched the bridge of his nose rather than the tip (214-215, 238). He did not document appellant struggling to maintain balance during this test (236-237). Appellant did use the correct and each time (237). The Romberg test consisted of appellant closing his eyes and indicating when he believed 30 seconds had passed (215, 238). Appellant opened his eyes at 22 seconds and indicated that he actually believed 35 seconds had passed (215, 239). Appellant did not fall over during the testing, and he did not document any loss of balance (239). For the finger count test, he first gave appellant verbal instruction and a demonstration appellant was to touch his thumb to each of his fingers, counting out loud, starting with the index finger "one, two, three, four," and then backwards from the pinky finger "four, three, two, one" (215, 239). Appellant did not follow these instructions --- he tried to perform the test either once or twice, asked again how be shown how to perform it, and 22 failed to begin with the pinky during the second series during his third attempt to perform the test (215-216, 240, 244). While administering the field sobriety tests, he continued to smell alcohol on appellant's breath and noticed appellant's speech was impaired (216). He acknowledged that he had no prior contact with appellant, and therefore could not compare appellant's impaired speech to his normal speech (240). Based upon his observations of appellant --- the glossy eyes, impaired speech, and odor of alcohol - - - as well as appellant's failure with the field sobriety tests, he concluded that appellant was intoxicated (217). At 1:45 a.m., he advised appellant that he was under arrest for DRIVING WHILE INTOXICATED and placed appellant in handcuffs (216, 225). He also issued appellant a traffic ticket for having an unauthorized sticker (225). He then used his Miranda and refusal warning card (P.E. #3) to read appellant the refusal warnings and then the Miranda warnings (217- 218, 219-220). Appellant indicated that he would consent to chemical test to determine his blood alcohol content, and that he did understand his rights (218, 220). He then advised dispatch that he had a person in custody and transported appellant to the Yates County Public Safety Building for a breath test (220). 23 2. JUSTIN HAMM (Penn Yan Police). On the morning of October 19, 2008, he responded to Clinton Street to assist Officer Crandall (P.W. No.1) with a traffic stop (256-257, 258, 260). He observed Crandall administer the field sobriety tests, eventually place appellant under arrest, and read appellant his DWI and Miranda warnings (258, 262). His general observations of appellant were that he was unsteady on his feet and his speech was slurred, from which observations he concluded that appellant was intoxicated (259- 261) . 3. G. PHILIP BIEHLS (911 Emergency Dispatch). On October 19, 2008, at approximately 1:12 a.m., he received an anonymous call indicating that one Robert Pealer was about to leave Sarrasin's Restaurant in an intoxicated condition (264-265). He asked the caller for their name and contact information, but they rEfused to provide it (267-268). He then made a computer entry regarding the call and dispatched the Penn Yan Police Department (265-266). 4. ANTONIA LERCH (Breath Test Operator) . She is certified (P.E. #4) to administer breath tests (274- 276, 305-306). On October 19,2008, at approximately 2:00 a.m., she was asked to conduct a breath test on appellant (276) . In administering the breath test, she followed a set procedure which 24 Gabapentin, and appellant the DWI appellant did not began with asking appellant a series of questions and reading him his DWI warnings from a card (P.E. #5) (277-278, 279-280, 311). The questions posed were related to appellant's health, to which he responded that he was not ill or diabetic, that he did have false teeth in his mouth, and that he was under a doctor's care and taking medications, including Hydrocodone, Omeprazole (278-279). She ultimately read warnings three times - - - the first two times, respond to the concluding question as to whether he would submit to a chemical test to determine his blood alcohol content, and the third time he did consent to the testing (280). Appellant did request to speak to an attorney, and she permitted him to place a call for that purpose (281). After speaking to the attorney, appellant did consent to the breath test (281) . Prior to actually conducting the test, there is an observation period of twenty minutes during which she watches the subj ect to ensure they do not drink anything, put anything in their mouth, or regurgitate (280). This step is necessary because for an accurate test to occur, the only thing entering the machine should be appellant's breath (308-309) . However, if an "interfering substance" is detected, the machine will print out a ticket that indicates such a substance was detected and will not permit the test to continue (279). 25 Before she began the observation period, she had appellant remove his false teeth and place them in a styrofoam cup with water (280-281, 305, period at 2:00 a.m. 308) . (281) . She then commenced the She had to restart the observation observation period at 2:15 a.m. because appellant took a drink of water from the cup containing his false teeth (281, 300, 309). Ultimately, an entire twenty minute observation period was completed (281, 300). When administering the test, she used an operational checklist (P.E. #11) and filled it out to ensure that she followed the proper procedures when administering the test (297, 300). The actual breath test was performed at 2:40 a.m. (310-311). Following the test, a printout (P.E. #12) was produced which indicated that appellant's blood alcohol content was .15% (300-302). She has never seen anyone consume alcohol who has not then become intoxicated (303). She concluded that appellant was intoxicated based upon the test results, his having slurred speech and unsteadiness on his feet, and her having to tell him several times to listen to her and to not put anything in his mouth (303- 304) . Regular testing for certification purposes is done every six months in Albany to ensure that the testing apparatus is in proper working order (282, 293, 310). The Data Master instrument certificates in the instant case indicate that the instrument was 26 tested on September 19, 2008 (P.E. #7) and March 6, 2009 (P.E. #8) and was found to be in proper working order (283, 293). The simulator solution used during the performance of the test was also certified (P.E. #6) as having a known reference range of .09% to .1%, having been tested on July 30, 2008 (293- 294, 295). Weekly testing (P.E. #9) is also performed within the Yates County Sheriff's Department by Sergeant Dirisio (295-296, 309). The instrument had been tested on October 15, 2008, and again on October 17, 2008 because the solution had been changed, and was found to be in proper working order (296-297). She acknowledged that the weekly testing log certificate reflects Instrument 125006 (P.E. #9, p. 494), while the Test Record reflects a different Instrument 990033 (P.E. #9, pp. 495-496) (297). She explained the discrepancy indicating that Instrument 990033 is the old one that they used to use, and that the new one is Instrument 125006 and they are both tested on the same test record (297). However, a review of the Test Record reveals that when the new Instrument is tested it is referenced "new DMT" (495-496). It should be noted that neither the October 15, 2008 nor the October 17, 2008 test reflect "new DMT" (497). 27 THE APPELLANT'S CASE 1. LORI JOHNS (Appellant's Co-Worker). On October 18, 2008, she and appellant worked at an offsite catering job at The Clemmons Center in Elmira (317-318). After the event, appellant left first and the rest of the staff loaded the restaurant supplies into a van and returned to Sarrasin's Restaurant (318). At the time she returned to the restaurant, well after midnight, appellant was there (318, 319, 321). She did not see appellant consume any alcoholic beverages at the restaurant, but admitted that she was not paying attention and was not with him the entire time (318-319, 321-322). Based upon her experience having seen people intoxicated, appellant was not intoxicated that night and she had no concerns about him driving home (319, 321). She was convicted of AGGRAVATED UNLICENSED OPERATOR IN THE THIRD DEGREE, for driving without a license, on June 6, 2003; DRIVING WHILE INTOXICATED on June 23, 2003; and was the subject of two bench warrants in August and October of 2003, respectively (320) . 2. THOMAS WISE (Appellant's Manager). On October 18, 2008, appellant worked at the Sarraisin Restaurant for both a wedding and an offsite catering location - The Clemens Center (323-324). Appellant worked in the morning to prepare for the wedding, and then went to The Clemens Center (324). The function at The Clemens Center ended between 9:30 and 28 10:00 p.m., after which appellant left with the remaining food while he and the other staff cleaned up (324-325, 327). When he returned to Sarrasin's Restaurant, appellant was there (325). When he left the restaurant at the end of the night, appellant was sitting at the bar and was having a beer (325). This was the only alcohol he observed appellant drink all night, but he was not with appellant at every moment (325, 327). In his opinion, appellant was "very tired" that night, but was not intoxicated, and he had no concerns about him driving home (325-326). 3. LAURA WILKOLASKI (Appellant's Co-Worker). She saw appellant on October 18, 2008, after appellant returned to the restaurant from the offsite location (329, 331). She served appellant one beer at the restaurant's bar, and believes that the bartender, Marty Kubli (A.W. No.4), may have served appellant one (329, 331, 332-333). There were times when she was not with appellant at the restaurant, but she was behind the bar the entire time and appellant could not have obtained a drink when she was not watching him (33l-332). Appellant did not seem intoxicated to her that night, and she had no concerns about him driving home (329-330). She lives down the road from him and would have driven him home had she been concerned (330). 29 4. MARTIN KUBLI (Appellant's Co-Worker). On October 18, 2008, he saw appellant when he returned to the restaurant from the offsite catering location between 11: 00 and 11:30 p.m. (334-335). He served appellant one beer that night, and saw him consume two beers (335). He admits that there were a few moments when he was not with appellant (337). He did not believe that appellant was intoxicated and had no concerns about appellant driving home (335-336). 5. ROBERT PEALER (Appellant). On October 18, 2008, he was working as the executive chef at Sarrasin's Restaurant (338, 353). At the time, there was another employee at the restaurant, named Ryan, which he did not get along with well due to his (Ryan's) attitude and drug use (342). He woke up at 5:00 a.m., and got to work at 6:00 a.m. to prepare for two large events --- an onsite wedding and an offsite catering event in Elmira (338-339). The offsite function ended at approximately 10:00 p.m., at which point he returned to Sarrasin's Restaurant (339). While at the restaurant that night, he had two beers at the bar --- one served to him by Laura Wilkolaski (A.W. No.3) and the other by Marty Kubli (A.W. NO.4) (340, 354). He did not brush his teeth or rinse his mouth with mouthwash after consuming these drinks (352). He left the restaurant a little after 1:00 a.m. (340). He did not feel intoxicated as a result of the two beers he had, nor did 30 he believe they had impacted him in any way, but he was tired (340, 345). Had he not wanted to drive himself home, others would have driven him as they had done in the past (340-341). He was driving a 1996 Subaru Legacy GG (see D.E. #A, B, and C) that he had purchased earlier that year (342-343, 353). At the time he purchased the vehicle, it had a Finger Lakes Community College sticker on the rear window (see D.E. #A) which is not visible from the inside of the vehicle looking back (see D.E. #B) (344-345) . On his way home that night, he was pulled over by the police on Clinton Street --- a little over two miles from the restaurant (341, 354). Between the restaurant and where he was ultimately stopped by the police, there were six stop signs and one stoplight (348). When the officer activated its emergency rights, he slowed down and pulled over, but denies having "slowed way down and maybe" even stopping in the middle of the roadway prior to pulling over and further denied not using his turn signal (354-355). He was asked by the police officer if he had been drinking that night, and he responded that he had drank two beers prior to leaving work (345, 354). He was then asked to exit his vehicle and perform some field sobriety tests (345-346, 355). He suffers from radiculopathy in his neck and has some deformed discs in the bottom of his spine which causes pinched nerves, a loss of muscle mass and strength, numbness in the hands, and pain and had been under a physician's 31 care for this physical problem prior to and after this incident (346-347). He told the officer about his physical problems prior to the officer administering the field sobriety tests (347). The officer asked him to perform the walk-and-turn test and a test where he would have to stand on one leg (347, 355). He informed the officer he would not be able to perform these tests because of his physical ailments (347-348, 355). His condition also affected his ability to perform the finger count test because the pinched nerves and the numbness and lack of strength in his hand (348). When the officer performed the eye test, he had his glasses on and was not asked to remove them prior to the test (346). After completing these tests, he was arrested for DRIVING WHILE INTOXICATED, handcuffed, and taken to the police station (348-349, 356). He was not advised of his Miranda or DWI warnings at the time of his arrest (356). At the police station, he was asked some questions, read some warnings, and was eventually asked to blow into a breath machine, which he agreed to do (349, 356- 357) . There was a waiting period before he actually submitted to the breath test, but he was not advised that the period had to be restarted at any point (357). Prior to taking the breath test, he was asked to remove the plate of teeth from his mouth and was sent to the bathroom to rinse his mouth, but he denied having drank from a cup of water (349, 357). This plate of teeth does not ~work 32 right," and causes him to slur his speech in general (349). At no point prior to administering the test did Deputy Lerch (P.W. No. 4) look in his mouth to ensure that nothing else was in his mouth (349-350). At the time he actually blew into the breath machine, he did have a Halls mentho-lyptus cough drop (A.E. #D) in his mouth, which has a smell sort of akin to alcohol (350-351, 358). The read-out on the instrument indicated his blood alcohol content was .15% (357). He has been convicted of multiple felonies, including convictions on June 28, 2002 for two Class D felonies related to incidences occurring on March 9, 2002 and April 17, 2002; a Class E felony related to the April 17, 2002 incident; and a conviction on a Class E felony on June 2, 1998 related to an incident on February 2, 1998 (352-353). REBUTTAL 1. ANTONIA LERCH (Yates County Sheriff's Department). She asked appellant whether he had false teeth or anything else in his mouth, to which appellant responded that he had false teeth (369). He did not indicate that there was anything else in his mouth (369). She had him remove his teeth, rinse out his mouth with water in the bathroom, and then asked him to open his mouth and lift his tongue (369). She did not observe anything in his mouth at that time (369). 33 POINT I THE DISTRICT ATTORENY OF SENECA COUNTY WAS NOT AUTHORIZED TO PREPARE, FILE AND SERVE THE PEOPLE'S BRIEF IN THE APPELLATE DIVISION. The District Attorney is the prosecutorial officer with the responsibility to conduct all prosecutions for crimes and offenses cognizable by the courts of the county in which he or she serves (People v. DiFalco, 44 N.Y.2d 482,486 [1978]). The District Attorney may delegate prosecutorial authority to others, and when the District Attorney is unable to appear or is disqualified from proceeding, a superior criminal court may appoint the District Attorney of another county or a private attorney to undertake the duties of the prosecutor (County Law §701[1]). The Yates County District Attorney's Office's Brief in the Appellate Division, Fourth Department was written, filed and served by Seneca County District Attorney Barry L. Porsch. According to County Law §700[8], the District Attorney of Seneca County, which is a full time position, shall: .. . give his whole time to his duties and shall not engage in the practice of law, act as an arbitrator, referee, or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his duties as district attorney. As such, Seneca County District Attorney Barry L. Porsch completing the People's Appellate Division Brief while acting of 34 counsel to the Yates County District Attorney's Office violated County Law §700[8] since he engaged in the practice of law outside of Seneca County. Nothing in this Record indicates that at any point a superior criminal court appointed Barry L. Porsch as a special prosecutor of the instant case (County Law §701 [1] [a] ) . The conduct of the Seneca County District Attorney was not in accordance with the standard set forth by this Court In the Matter of Haggerty v. Himelein (89 N.Y.2d 431, 436 [1997]) where an Assistant Attorney General was appointed as an Assistant District Attorney to work under the direction of that District Attorney. Moreover, the Attorney General did not personally participate, In the Matter of Haggerty (89 N.Y.2d at 437), but in this case the Seneca County District Attorney personally participated. The District Attorneys failed to conduct the prosecution in a manner that fostered faith in the justice system (County Law §§700 [8], 701 [1] [a] ) . 35 POINT II THE POLICE STOP OF APPELLANT'S VEHICLE WAS IMPROPER. The police are authorized to stop a vehicle if a traffic infraction occurs in their presence (Whren v. United States, 517 u.s. 806, 810 [1996]; People v. Robinson, 97 N.Y.2d 341, 348-349 [2001]; People v. Wright, 42 A.D.3d 942, 943 [4 th Dept.]). In New York, police stops of automobiles are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations; or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime; or when the police have a probable cause to believe the driver has committed a traffic violation (Robinson, 97 N.Y.2d 348-349; People v. Rose, 67 A.D.3d 1447, 1448). The trial court's Memorandum-Decision and Order following the Hearing made clear that the only grounds that existed to justify the stop of appellant's vehicle was the presence of the Finger Lakes Community College sticker in the rear window [D.E. #A] (198a-199a; 344). The college sticker was not specifically listed in Title 15 N.Y.C.R.R. Part 174, and was therefore unauthorized, and therefore constituted a traffic infraction pursuant to Vehicle and Traffic Law §375 [1] [b] [i] (198a-199a). The trial court specifically found that neither the anonymous 36 tip received by police nor appellant's alleged weaving within his own lane could justify the stop (199a-200a). The trial court concluded that because Officer Crandall (P.H.W. No.1) had observed a traffic infraction, albeit a minor one, the infraction meant that the stop was not the result of a "mere whim, caprice or idle curiosity" (200a; quoting People v. Ingle, 36 N.Y.2d 413, 420 [1975]). It is respectfully submitted that, while the sticker in appellant's rear window was not specifically authorized, the violation in this case is of such a technical manner, so rarely enforced, and so commonly violated on the roads in New York that giving credence to the trial court's ruling in this case would nullify any requirement that there be some reasonable basis for the stop, practically giving the police license to conduct pretextual traffic stops based on little more than a "whim, caprice or idle curiosity." The Highway Law was amended in 1925 to provide: " ... The use or placing of posters or stickers on windshields or rear windows of motor vehicles, other than those authorized by the Commissioner of Motor Vehicles, is hereby prohibited" (Laws of New York 1925, Chapter 310). The legislative history reflects that its one-year trial purpose was because: " ... stickers often obscure vision and owners of parked cars are frequently annoyed 37 by having advertisers smear up their windshields ... " (April 2, 1925 letter of state Tax Commission in support of Chapter 310) . The foregoing subsequently became part of Vehicle & Traffic Law §375(1) (b) (i): " ... The use or placing of posters or stickers on windshields or rear windows of motor vehicles other than those authorized by the commissioner of motor vehicles is hereby prohibi ted ... " . Title 15 N.Y.C.R.R. §174.1 reflects that stickers on the windshield and rear window interfere with visibility. The regulation authorizes: a registration sticker; an inspection sticker; a Thruway sticker; security stickers; and special event stickers (Title 15 N.Y.C.R.R. §§174.2-174.6). The security and special event stickers allow entities to easily and quickly limit access to their facilities (Title 15 N.Y.C.R.R. Part 175, Regulatory Impact Statement 3). Allowing any business, nonprofit organization or individual with a need to use windshield stickers was considered and rejected because it would cause an increase in windshield stickers which reduce visibility through the windshield and because most of them would be used as parking stickers (Title 15 N.Y.C.R.R. Part 174, Regulatory Impact Statement 7) . Title 15 N.Y.C.R.R. §174.1 states that only those "posters and stickers" that are authorized by the Commissioner of Motor Vehicles may be displayed on the windshield or rear windows of 38 vehicles registered in New York. The justification for the limitation is that "Posters or stickers on the windshield and rear window interfere with visibility" (Title 15 N.Y.C.R.R. §174.1). Failure to abide by the dictates of Title 15 N.Y.C.R.R. Part 174 is made a violation under Vehicle and Traffic Law §375 [1] [b] [i] which provides that "the use or placing of posters or stickers on windshields or rear windows of motor vehicles other than those authorized by the commissioner, is hereby prohibi ted. " The inclusion of this provision under the requirement that all vehicles have wiper blades that clear enough of the windshield to provide for reasonable visibility makes clear that the justification for this law is to avoid interference §375 [1] [b]) . with visibility (Vehicle and Traffic Law College stickers window (see D. E. #A, of the type B, and C) are that were in appellant's extraordinarily common and interfere minimally, if at all, with visibility through the back window. Not only college students, their parents, and alumni use these types of stickers, but also military parents and veterans or just people sharing with the world their latest vacation sites, or favorite football team. The ubiquity of these rear window stickers, combined with common sense reasoning, would indicate that this provision of the Vehicle and Traffic Law is rarely enforced, as people would certainly avoid these stickers 39 if they knew a traffic stop, ticket, and possibly criminal charges could result. Moreover, the violation claimed in this case cannot be equated with a faulty muffler (cf., People v. Wright, 98 N.Y.2d 657, 658-659 [2002]). In this case, Officer Crandall (P.H.W No.1) did not see anything in appellant's driving or about the condition of the vehicle itself that would justify commencing a traffic stop other than the existence of this small, transparent sticker in the corner of appellant's rear window (111a-112a, 113a, 129a- 130a, 132a-133a, 134a, 198a-200a). However, because of this technical violation of the Vehicle and Traffic Law, Officer Crandall was able to engage in a "fishing expedition," armed with little other than his curiosity about whether this was the same individual about whom the anonymous phone call had been made, by stopping appellant's vehicle to conduct a deeper investigation on a matter completely unrelated to that sticker. The law does recognize that the actual motivations of the traffic stop do not matter so long as there is some articulable basis for the stop in the law (Robinson, 97 N.Y.2d at 349). However, this case demonstrates that there is a massive loophole in the system now, which permits officers to stop vehicles for little to no reason because of transparent college stickers that do not interfere with visibility --- the sole reason for their prohibition (Title 15 N.Y.C.R.R. §174.1). 40 The trial court's approval of this sort of pretextual stop cannot be tolerated. The spirit of Vehicle and Traffic Law §375 [1] [b] [i] is to preserve the safety of motorists by ensuring that they have a clear view out of their back window. Allowing this traffic stop, where the essence of that law was not violated, as a pretext to investigate some other crime was improper, and due to that impropriety all evidence discovered as a result of the traffic stop should be suppressed, appellant's conviction reversed, and the Indictment dismissed (see Robinson, 99 N.Y.2d at 348-349; cf., Wright 98 N.Y.2d at 658-659). POINT III APPELLANT WAS PREJUDICED BY DEPUTY LERCH'S TESTIMONY THAT APPELLANT REQUESTED TO SPEAK TO AN ATTORNEY PRIOR TO SUBMITTING TO A BREATH TEST. "A defendant's invocation of his right against self- incrimination or to counsel in response to police questioning cannot be used against him during the People's direct case" (People v. Von Werne, 41 N.Y.2d 584, 587-588 [1977]; see People v. Goldston, 6 A.D.3d 736, 737). This rule applies equally to cases in which a defendant responds to some questioning, but then declines to answer certain questions or to end the questioning (People v. Hunt, 18 A.D.3d 891 [2005]). 41 It is reversible error when evidence is presented to the jury that a defendant requested an attorney during a police interview (People v. AI-Kanani, 26 N.Y.2d 473, 478 [1970]). When such evidence is presented to the jury during the People's case- in-chief, its only purpose is to create an inference of the defendant's consciousness of guilt (AI-Kanani, 26 N.Y.2d at 478; see also People v. Bianculli, 9 N.Y.2d 468, 472 [1961]; People v. Travato, 309 N.Y. 382, 386 [1955]). It is respectfully submitted that appellant was prejudiced by the testimony of Breath Test Operator Lerch (P.W. No. 4!P.R.W. No.1), which established that appellant had requested to speak to an attorney before he submitted to the breath test (280) . After being arrested for DRIVING WHILE INTOXICATED, appellant was taken to the Yates County Public Safety Building for a breath test (220, 276). In the instant case, the following exchange took place during the direct examination of Lerch: PROSECUTOR: At any point did the defendant ask to speak to an attorney? LERCH: Yes, he did. PROSECUTOR: And did you allow him to call the attorney? LERCH: Yes, I did. PROSECUTOR: After the defendant called the attorney, did there come a time when he agreed to submit to a breath test? 42 LERCH: Yes (280). Lerch also testified that appellant was advised of his rights three times before he finally consented to testing (280). The substance of Lerch's testimony in this regard would leave the jury to infer that appellant refused to consent to testing without first speaking to an attorney (280, 281). Further compounding this error was the admission of People's Exhibit #11 --- the Operational Checklist filled in by Lerch as she conducted the breath test on appellant evidence (497-498). On this checklist, Lerch had written: 2: 00 - Read Warnings, had him remove false teeth + rinse out mouth. When asked if he would take test he requested call to lawyer. 2:04 called 1-800-DWI-Team and spoke to attorney ... 2:18 - got off phone w/lawyer. into 2: 20 - yes or test. Reread Warnings no answer to - will not willingness give me to take 2: 24 - Reread Warnings and said "yes" will take test (497-498). Not only did the jury get to hear Lerch's testimony about appellant's request for an attorney, but they were permitted to read it as well from documents the People offered into evidence (497-498) . 43 The only possible reason why the prosecutor would want to elicit such testimony is lead the jury to infer that appellant did not want to consent to testing because he believed that it would reveal his guilt (see Al-Kanani, 26 N.Y.2d at 478; see also Bianculli, 9 N.Y.2d at 472; Travato, 309 N.Y.2d at 386). This was reversible error, and the judgment of conviction must be reversed (Al-Kanani, 26 N.Y.2d at 478; Hunt, 18 A.D.3d at 892). Defense counsel's failure to object to such improper evidence deprived defendant of the right to effective assistant of counsel (see People v. Fisher, 18 N.Y.3d 964 [2012]). 44 POINT IV APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE TRIAL COURT ADMITTED CERTIFIED DOCUMENTS INTO EVIDENCE UNDER THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE. The Appellate Division held that the statements in P.E. #6, 7 & 8 are not accusatory because they do not establish an element of the crime of Driving While Intoxicated regarding any particular individual, and were not rendered inadmissible by Bullcoming v. New Mexico ( _ u.s. 131 S. Ct. 2705, 2710 [2011] ) 2011] ) . (People v. Pealer, 89 A.D.3d 1504, 1506 [4 th Dept. Appellant was arrested for DRIVING WHILE INTOXICATED (122a; 216, 225). He was then transported to the Yates County Public Safety Building for testing by a DMT Data Master to quantify his breath ethanol level in order to charge him with an additional violation of the Vehicle & Traffic Law (125a, 149a; 220, 300-302) (see Vehicle and Traffic Law §1192). It strains credulity to believe that he would be "unarrested" if he passed the breath test. As such, the purpose of the breath test is accusatory regarding not only this specific arrestee, but every arrestee blowing into the machine (125a, 149a; 220, 300-302). A breathalyzer is scientifically reliable to determine a defendant's alcohol content (Vehicle and Traffic Law §1194; People v. Mertz, 68 N.Y.2d 136, 148) 45 The key elements then become whether the simulator solution and the calibration and maintenance of the breathalyzer was proper. Hearsay consists of a statement made out of court that is offered for the purpose of proving the truth of the matter asserted (People v. Huertas, 75 N.Y.2d 487, 491-492 [1990]; People v. Nieves, 67 N.Y.2d 125, 131 [1986]; see also Federal Rules of Evidence, Rule 801). Unless an exception applies, a hearsay statement must be excluded upon obj ection (Nieves, 67 N. Y. 2d at 131; Federal Rules of Evidence, Rule 802). The principal justification for the exclusion of hearsay evidence is the lack of opportunity to cross-examine the declarant, thus highlighting weaknesses in the witness' story and provide the trier of fact an opportunity to assess the credibility of the witness (Prince, Richardson on Evidence, §8-102 [11 th Ed.]; see also People v. Settles, 46 N.Y.2d 154, 166 [1978]; People v. Gaimari, 176 N.Y. 84 [1903]). In criminal cases, the Sixth Amendment to the Federal Constitution contains the Confrontation Clause, which explicitly guarantees to each criminal defendant the right to confront those who "bear testimony" against him. In Crawford v. Washington (541 U.S. 36, 68 [2004]), the Supreme Court concluded that where a State seeks to introduce testimonial hearsay evidence against a criminal defendant, the Sixth Amendment's Confrontation Clause is implicated. In such 46 circumstances, the State must demonstrate that the witness is unavailable and that there was a prior occasion for cross- examination for the hearsay statements to be admissible (Crawford, 541 U.S. at 68). The Supreme Court reiterated its holding in Crawford (541 U.S. at 68) in its decision in Melendez-Diaz v. Massachusetts (557 U.S. 305 [2009]). In Melendez-Diaz (557 U.S. at 332), the Supreme Court concluded that it was error to admit into evidence affidavits prepared by forensic analysts detailing the quantity and type of drugs seized in the case. The Supreme Court noted that the affidavits were likely produced by persons who were aware of the documents' evidentiary purpose and were intended to substitute for live witness testimony (Melendez-Diaz, 557 U.S. at 321) . In Bullcoming (131 S.Ct. at 2709) the Supreme Court further clarified the Confrontation Clause. Bullcoming (131 S. Ct. at 2709) was arrested on charges of DRIVING WHILE INTOXICATED. Principal evidence included a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for AGGRAVATED DRIVING WHILE INTOXICATED (Bullcoming, 131 S.Ct. at 2709). At trial, the prosecution did not call as a witness the analyst who signed the certification (Bullcoming, 131 S.Ct. at 2709). Instead, the prosecutor called another analyst who was familiar with the laboratory's testing procedures, but had 47 neither participated in nor observed the test on petitioner's blood sample (Bullcoming, 131 S.Ct. at 2709). The Supreme Court held that such testimony does not meet constitutional requirements: The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist (Bullcoming, 131 S.Ct. at 2709) . This Court interpreted Crawford (541 U.S.at 68) and Melendez- Diaz (557 U.S. at 332) in People v. Brown (13 N.Y.3d 332 [2009]). In Brown (13 N.Y.2d at 336), this Court found that a DNA report processed by a subcontractor laboratory was admissible without the testimony of the person who prepared the report. In so finding, this Court noted that neutral testing procedures were utilized and the graphical DNA test results meant nothing without the testimony of an expert who could testify that the report's findings matched the DNA sample to a known sample, thus giving the results evidentiary weight (Brown, 13 N. Y. 2d at 341). This Court also noted that other factors could also be considered in determining whether a document is testimonial in nature, including whether the agency that produced the report is independent of law enforcement; whether the document reflects objective facts; whether the report is biased in favor of law enforcement; and whether the report accuses the defendant directly (Brown, 13 N.Y.2d at 339-340; see 48 also People v. Freycinet, 11 N.Y.3d 38 [2008]---autopsy report is not testimonial as it is not prepared by law enforcement agency, and was an objective account of observable facts not linking defendant to fingerprint crime; People v. Rawlins, reports are inherently 10 N.Y. 3d 136 accusatory, [2008] --- and thus testimonial, but admission harmless error as primary detective, who did testify, upon reviewing that same evidence, reached the same conclusion) . After Crawford (541 U.S. at 68), and its progeny, was decided, criminal courts in New York State were forced to decide whether certified documents regarding the calibration, testing, and maintenance of breathalyzer machines were testimonial in nature and therefore prohibited from being admitted into evidence without the testimony of the witness who conducted the testing. Many New York courts have determined that such records were non- testimonial, and were therefore admissible in evidence without violating the defendant's right of confrontation (see People v. Hulbert, 93 A.D.3d 953, 954 [3m Dept. 2012]; People v. Damato, 79 A.D.3d 1060, 1061 [2nd Dept. 2010]; People v. Adilovic, 34 Misc.3d 159A [2012]; People v. Benson, 34 Misc. 3d 1226A [2011] People v. Kelly, 26 Misc.3d 1205 [A] ; People v. Brooks, 21 Misc.3d 1132 [A] ; People v. LaBrecht, 13 Misc.3d 45, 49-50; Green v. DeMarco, 11 Misc.3d 451, 464-468; People v. Mellott, 10 Misc.3d 1056 [A] ; 49 People v. Fisher, 9 Misc.3d 1121 [A] ; People v. Krueger, 9 Misc.3d 950, 953-957; People v. Kanhai, 8 Misc.3d 447, 449-453). In People v. Carreira (27 Misc.3d 293, 297 [2010]), the Watertown City Court concluded that simulator solution and calibration records maintained by law enforcement were testimonial in nature, and therefore were inadmissible absent live testimony by the person or persons who prepared the records. The justification for deeming these records non-testimonial ignores the fact they are prepared expressly for use in litigation against allegedly intoxicated drivers (Carreira, 27 Misc.3d at 298). These records do not have the same presumption of neutrality as typical business records because they are prepared, maintained, and used by law enforcement personnel, all of whom may be presumed to hope for convictions (Carreira, 27 Misc.3d at 298). Confrontation would help assure that the testing was actually conducted and was conducted competently (Carreira, 27 Misc.3d at 298) (see P.E. #9). In the case at bar, defense counsel objected to the certified records pertaining to simulator solution (P.E. #6) and the calibration and maintenance of the breathalyzer machine records (P.E. #7-8) being admitted into evidence without the live witness testimony of the persons responsible for the testing (285-287, 288-289, 294). Counsel indicated that the certificates (P.E. #6, 7, 8) were prepared for use at trial, not business records, and Melendez-Diaz (557 U.S. at 321) precluded their admission (285- 50 287, 288-289, 294). The trial court ruled that the reports (P.E. #6, 7, 8) were non-testimonial in nature, and admitted the contested exhibits into evidence over defense objection (290-292, 294) It is respectfully submitted that the reasoning set forth in Carreira (27 Misc.3d at 297-298) reflects the correct analysis of this issue. While it is true that the calibration of breathalyzer machines is not geared towards a specific arrestee, the fact remains that the purpose of the testing is to guarantee the accuracy of the breathalyzer machines for use in litigation against the arrestee blowing into the machine (Carreira, 27 Misc.3d at 298). Without confrontation, there is nothing to guarantee that law enforcement remains honest in actually conducting the required testing and not fabricating the records to assure more convictions. A defendant should not be convicted based upon the readings provided by a machine when he has no opportunity to question the accuracy of that machine's readings it is tantamount "business to permitting an appellant record" (see United States v. to be convicted by a Gorder, 726 F. Supp. 2d 1307, 1314 (D. Utah, 2010) ---holding "Intoxilyzer 8000 Operation Checklist" testimonial). Moreover, the documents (P.E. #6, 7, 8) were not non- testimonial "documents prepared in the regular course of equipment maintenance" as contemplated in Melendez v. Diaz (557 U.S. at 51 are testimonial in nature and should have 322). The documents (P.E. #6, 7, 8) were prepared solely for use in court as the functional equivalent of testimony to show the Data Master DMT result as to that arrestee could be sued as evidence against that arrestee. It should be noted that so holding would not be inconsistent with the Court of Appeal's holding in Brown (13 N.Y.3d at 340). As has been discussed, these records (P.E. #6, 7, 8) were not produced by an agency independent of law enforcement, but by law enforcement themselves (486-487, 488-490, 491-493) (see Rawlins, 10 N.Y.3d at 151). The records (P.E. #6, 7, 8) are also intended for litigation, not against any particular person, but against arrested intoxicated drivers without records verifying the accuracy of the breath test, those test results would have little to no significance. Brown (13 N.Y.3d at 339-340) specifically states that these are facts that can be taken into consideration when evaluating whether a document is testimonial in nature, and it is respectfully submitted that in this case, the People's Exhibits (#6, 7, 8) been excluded. The certificates (P.E. #6, 7, 8) are quite plainly an Affidavit, written down and sworn to by the declarant (486-487, 488-490, 491-493). Therefore, they are functionally identical to live, in-court testimony, doing "precisely what a witness does on direct examination" (293-295, 486-487, 488-490, 491-493) 52 (see Melendez-Diaz, 557 U.S. at 321; Carreira, 27 Misc.3d at 297; see also Davis v. Washington, 547 U.S. 813, 830 [2006]). It should be noted that any business rationale overlooks the fact that solution (P.E. #6) and calibration (P.E. #7-8) certificates are not typical business records, as their certification is required by New York precisely because evidence produced using them will end up in criminal court and their accuracy is solely necessary for prosecutorial purposes (Carreira, 27 Misc.3d at 298). Bullcoming (131 S.Ct. at 2709-2710) makes it clear that the interpretation of what is testimonial evidence is expanding, and provides further evidence that the trial court's ruling that the records (PE #6, 7, 8) were non-testimonial in nature was erroneous (290-292, 294). Without confrontation with the actual individuals who calibrated and maintained such machines there was nothing to guarantee that law enforcement remained honest in actually conducting the required testing and not fabricating the records to assure more convictions (Carreira, 27 Misc.3d at 297). It is respectfully submitted that the exhibits (P.E. #6, 7, 8) are testimonial in nature, and their admission into evidence, in the absence of the technician or analyst who prepared them violated appellant's Sixth Amendment right to confrontation (Carreira, 27 Misc.3d at 297-300; see Bullcoming, 131 S.Ct. at 2709-2710; Melendez-Diaz, 557 at 321; Crawford, 541 at 68). As 53 such, appellant was denied the right to a fair trial, his judgment of conviction must be reversed, and a new trial ordered. POINT V APPELLANT WAS DENIED DUE PROCESS OF LAW DUE TO PROSECUTORIAL MISCONDUCT. The prosecutor's mission is not so much to convict as it is to achieve a just result (People v. Bailey, 58 N.Y.2d 272, 277 [1983]; People v. Zimmer, 51 N.Y.2d 390, 393 [1980]). Therefore, the prosecutor is obligated to make sure a defendant receives a fair trial (People v. Higgins, 88 A.D.2d 921 [2nd Dept. 1982], app. denied 57 N.Y.2d 678 [1982]; People v. Toomer, 87 A.D.2d 875 [2~ Dept. 1982]). A prosecutor's job is to be fair and impartial and avoid unfair insinuations designed to prejudice the jury (People v. Millard, 247 A.D. 253 [3 rd Dept. 1936]). Criminal trials are to be conducted in such a way that the proof presented at trial will be legal evidence presented through unimpaired and intemperate conduct (People v. Alicea, 37 N.Y.2d 601, 605 [1975] ) . The prosecution has a duty to act in good faith while giving his opening statement and continues throughout his summation (Alicea, 37 N.Y.2d at 604-605; People v. Detore, 34 N.Y.2d 199 [1974] ) . A prosecutor exceeds the bounds of 54 legitimate advocacy where the prosecutor engages in any personal abuse or vilification of the defendant or makes remarks prejudicial to the defendant (People v. Whalen, 59 N.Y.2d 273, 280-281 [1983]; see also People v. Rivera, 116 A.D.2d 371, 373 [1st Dept. 1986]). The appellate court must review instances of impropriety at the trial to determine whether prosecutorial misconduct was so egregious as to warrant a mistrial (People v. Mott, 94 A.D.2d 415, 418 [4 th Dept. 1983]). In order to merit a mistrial, the conduct must cause substantial prejudice to appellant as to deny due process of law (Mott, 94 A.D.2d at 418). Reversal on the grounds of prosecutorial misconduct does not require proof of bad faith intent (People v. A.D.2d 882, 883 [2nd Dept. 1984], app. denied by Medina). Where review of the record illustrates Cruz, 100 People v. less than guilt, prejudicial effect the slightest impropriety overwhelming evidence of defendant's by bar,atcase prejudic:ed the was inthat trialfaira on the defendant may result form (Cruz, 100 A.D.2d at 883) . It is respectfully submitted appellant's right to prosecutorial misconduct (Alicea, 37 N.Y.2d at 605; Millard, 247 A.D. at 256, 257). It is respectfully submitted that the prosecutor committed misconduct when she purposely elicited from Breath Test Operator 55 Lerch (P.W. No. 4!P.R.W. NO.1) that appellant invoked his constitutional right to speak to an attorney prior to submitting to the breath test (see POINT III, supra). During her closing argument, the prosecutor made several comments that were highly prejudicial to appellant and which were not based upon facts in evidence. Such comments were designed to inflame the jury's emotions against appellant and simultaneously bolster the credibility of Officer Crandall (P.W. No.1), the prosecutor said: Now, defense counsel has suggested to you that there's something wrong with the way that Officer Crandall pulled over the defendant and stopped him in his car. I would suggest to you that there's something right about it. Officer Crandall's duties include investigating complaints and protecting the community. This includes keeping our streets safe. Would you have an officer not go out and investigate a complaint that someone was driving intoxicated? (405-406) The prosecutor's statement is clearly designed to invoke in the jury the feelings that Officer Crandall was simply a man doing his job, protecting the public from dangerous persons making the streets unsafe for everyday citizens like themselves (405-406). Such an inflammatory comment would certainly strike a chord with jurors, and could very well have influenced their perceptions of the case. 56 The prosecutor also "testified" during her summation, making comments that referred to matters not in evidence and called upon the jury to draw conclusions that were not inferable from the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109-110 [1976]; People v. Chin, 138 A.D.2d 389, 390-391 [2nd Dept. 1988]). At one point, the prosecutor said: We know that the defendant drank more than two beers. And one way we know that is the breath test. The defendant's blood alcohol content was .15 at 2 :40 a.m. just over an hour after he was driving. .15 is almost double the legal limit of .08. This number would reflect a significant amount of alcohol (407). Although the prosecutor was certainly free to comment that the breath test results were .15%, as there was testimony on that fact, absolutely nothing in the Record indicated how much alcohol is in a single beer or how that would translate into a blood alcohol content for an individual. The prosecutor's comments, therefore, were entirely inappropriate and quite unnecessary. 57 The most egregious comment made by the prosecutor was that Lerch: Explained to you and to defense counsel that each chemical substance has its own fingerprint and the instrument detects differences in substances. She testified that if there's an interfering substance, the instrument will not allow the test. Look at the back of the Halls label. The substance in those cough drops is menthol. From Antonia's testimony we know that substance would not interfere with the test results (408). Defense counsel promptly objected, and the trial court sustained the objection, saying: The closing statements, as I've indicated, are not - is not evidence in the case. It's only what the attorneys feel the evidence showed. The Jury will decide as to the facts that were presented (408). While the trial court did sustain the objection and gave a curative instruction, it is respectfully submitted that no curative instruction could "unring the bell." While Lerch did testify that the test would not proceed if there were an "interfering substance," her testimony did not specify what an interfering substance would consist of or whether the machine could ever mistakenly identify one substance as another primarily because she was not an expert (279). To insinuate to the jury, then, that Lerch's testimony could be interpreted in a way that is not in conformity with the substance of her testimony or her actual authority on the topic is completely 58 prejudicial and very well may have impacted the outcome in this case. Indeed, the prejudicial impact of the prosecutor's statement is revealed by the fact that the jury requested further instruction on the issue of the cough drop and whether menthol would have affected the validity of the breath test (C.E. #3, 509-510). The jury's uncertainty on this issue could have been ultimately pushed towards accepting the validity of the tests results based upon the prosecutor's inappropriate interpretation of Lerch's testimony. Because the prosecutor's inappropriate comments during summation touched on key issues during this case, and very likely played a role in appellant's conviction, the judgment of conviction must be reversed and the matter remanded for a new trial (Alicea, 37 N.Y.2d at 605; Millard, 247 A.D. at 256-257). Defense counsel's failure to object to such improper conduct deprived defendant of his right to effective assistance of counsel (see People v. Fisher, 18 N.Y.3d 964 [2012]). 59 POINT VI THE TRIAL COURT ERRED IN ALLOWING IMPROPER AND PREJUDICIAL REBUTTAL TESTIMONY. Generally, rebuttal evidence is allowed to disprove some fact that is sought to be proved by an adversary or to sustain the character of a witness who has been impeached, or corroborating evidence which has been discredited (see Marshall v. Davies, 78 N.Y. 414, 420; see also People v. Harris, 84 A.D.2d 63, 70-71 [2nd Dept.], aff'd 57 N.Y.2d 335 1345 [1982], cert. denied, 460 U.S. 1047 [1983]). The People may not use rebuttal evidence if it serves merely to bolster their case after the defense has rested (People v. Schwartzman, 24 N. Y. 2d 241, 245-246 [1969], cert. denied, 396 U.S. 846 [1969]; People v. Castro, 101 A.D.2d 392, 398 [1st Dept. 1984], aff'd 65 N.Y.2d 683 [1985]). Rebuttal evidence is also improper if it is used solely to impeach a witness' credibility on collateral matters (see Harris, 84 A.D.2d at 71; 57 N.Y.2d at 345). It is respectfully submitted that the rebuttal testimony of Breath Test Operator Lerch (P.W. No. 4/P.R.W. No.1) was improper because it only served to bolster their case after the defense presented its case (Schwartzman, 24 N.Y.2d at 245-246; see also Castro, 101 A.D.2d at 398) . During her testimony in the People's case-in-chief, Lerch testified that prior to conducting a breath test, she observes 60 the subject for twenty minutes to ensure that they do not drink anything, put anything in their mouth, or regurgitate to avoid anything other than the subject's breath going into the machine (280, 308-309). She testified that in this particular instance, she had appellant remove his false teeth and place them in a styrofoam cup with water (280-281, 305, 308). She also stated that the observation period had to be restarted because appellant had taken a sip of water from the cup with his teeth in it (281, 300, 309). Lerch also testified that appellant repeatedly had to be told not to put anything in or near his mouth (303-304). Lerch's testimony during the People's case-in-chief, then, established that she had appellant empty his mouth and that she was watching him to ensure that he did not put anything else in it (280-281, 300, 305, 308, 309). Furthermore, the People offered into evidence Lerch's Operational Checklist (P.E. #11), which also addressed these same concerns (497-498). During his testimony, appellant testified that he had, in fact, removed his teeth and went to the bathroom to rinse his mouth (349, 357). Appellant also testified that he had a Halls metho-Iyptus cough drop in his mouth at the time that he blew into the machine, and that these drops smell sort of like alcohol (350-351, 358). 61 After the defense rested its case, the People requested to recall Lerch on Rebuttal so that they could specifically ask her whether she had examined appellant's mouth to ensure nothing was in it (359, 362). Defense counsel objected to the purposed rebuttal testimony, noting that Lerch already testified about the need to ensure nothing was in the subj ect' s mouth and how she had appellant remove his teeth and had ample opportunity to ask more pointedly whether Lerch actually looked in appellant's mouth (362-363). The trial court ultimately ruled that Lerch could testify on rebuttal as to whether she checked the contents of appellant's mouth (365). On rebuttal then, Lerch reiterated her earlier testimony that she had appellant remove his teeth, and now added that she had him rinse out his mouth in the bathroom with water and then actually looked in his mouth (369). She asserted that she did not observe anything in appellant's mouth at that time (369). It is respectfully submitted that Lerch's rebuttal testimony was inappropriate and should not have been permitted. The People had ample opportunity to ask a more direct question about whether anything was in appellant's mouth during the testing, but even without the very pointed inquiry into the matter, the evidence submitted during their case-in-chief made it clear that, according to Lerch, appellant's mouth was free from any objects at the time of testing (280-281, 300, 305, 308, 62 309, 497-498). All the rebuttal testimony of Lerch served to do was contradict appellant's testimony through the bolstering of the People's case. Nor can it be said that this error was necessarily harmless (see People v. Crimmins, 36 N.Y.2d 230, 241 [1975]). It should be noted that the jury was clearly concerned whether there was a cough drop in appellant's mouth and what impact it may have had on the validity of the testing (see C.E. #3, 509-510). The inappropriate rebuttal testimony may have unduly influenced the jury's considerations because they heard Lerch's version multiple times, in addition to the prosecution's prejudicial comments about how the Halls cough drop would not interfere with the test results (see POINT IV, supra). Appellant's jUdgment of conviction must be reversed, and a new trial ordered. 63 POINT VII APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED. An appellate court's overriding responsibility is to ensure that the cardinal right of a defendant to a fair trial is respected in every instance (People v. Crimmins, 36 N.Y.2d 230, 238 [1975]). A defendant may be denied his constitutional right to a fair trial through a single error that is more formalistic, or an aggregation of numerous errors (see Crimmins, 36 N.Y.2d at 237-238) . The right to a fair trial is fundamental, and even overwhelming proof of guilt cannot be used as a basis for overlooking egregious conduct committed during trial (Crimmins, 36 N.Y.2d at 237-238). A defendant's "entitlement to a fair trial and effective assistance of counsel must be scrupulously safeguarded" (People v. Robinson, 71 A.D.2d 1008 [2nd Dept. 1979]). The trial court, therefore, has an obligation to ensure a fair trial and to take prompt curative measures, even without such a request by the defense (People v. Tucker, 133 A.D.2d 787, 788-789 [2nd Dept. 1987] app. denied, 70 N.Y.2d 878 [1987]). It is respectfully submitted that, even if this Court does not feel that the individual errors enumerated in POINTS III, IV, ~' and VI (supra) --- namely, that appellant was prejudiced by references to his request to speak to an attorney prior to 64 submitting to a breath test (POINT III, supra); that appellant was denied his constitutional to confront the witnesses against him when the trial court admitted into evidence, over defense objection, certain "business records" (P.E. #6-8) pertaining to the accuracy of the breathalyzer machine used in his case (POINT IV, supra); that appellant was prejudiced by prosecutorial misconduct during summation (POINT V, supra); and that appellant was prejudiced by improper rebuttal testimony (POINT VI, supra) individually warrants a reversal of the judgment of conviction, these errors viewed together can lead to no other conclusion than that appellant's right to a fair trial was denied. As such, this Court should reverse appellant's conviction and remand the matter for a new trial (see Crimmins, 36 N.Y.2d at 237-238). 65 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR IN THE ALTERNATIVE, A NEW TRIAL ORDERED. Respectfully submitted, .J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deY. Moeller, Esq. Of Counsel Dated: June 14, 2012 66