The People, Respondent,v.Robert Pealer, Appellant.BriefN.Y.January 3, 2013To Be Argued By: Hon. Jason L. Cook Time: 20 Minutes COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ROBERT B. PEALER, Defendant-Appellant. RESPONDENT'S BRIEF Hannah E.C. Moore, Esq. New York Prosecutors Training Institute, Inc. 107 Columbia Street Albany, NY 12210 Tel. (518) 432-1100 Fax. (518) 432-1180 Ofcounsel Date completed: August 24,2012 HON. JASON L. COOK Yates County District Attorney Attorney for Respondent 415 Liberty Street Penn Yan, New York 14527 Tel. (315) 536-5550 Fax. (315) 536-5556 RULE SOO.13(a) RELATED LITIGATION STATEMENT As of August 24, 2012, there are no other criminal prosecutions against Robert B. Pealer pending in Yates County related to the case before this Court, and the Yates County District Attorney's Office is not aware of any other, related litigation. TABLE OF CONTENTS RESPONDENT'S BRIEF TABLE OF CASES AND AUTHORlTIES ... ... .... ........... ........... ............................ iv STATEMENT .................. ...................................................................... .. ........... ..... . 1 QUESTIONS PRESENTED ................ .. ...................... .. ... .. ....................................... 2 THE FACTS .. .... ............................ .. ........ .. ............ ... ............ .. .................. ...... ........... .4 THE INDICTMENT ...... ......... ...... .............. ......... ............................. ..... ........... 4 THE PRE-TRlAL HEARlNG .............. .................................. .............. .. .......... 5 THE TRlAL ... ...... ........................................ ............................................ ......... 9 THE SENTENCE ....... ............................ .......... ........................ ...................... 17 THE APPELLATE DIVISION DECISION ................................................... 17 ARGUMENT POINT ONE THE APPELLATE DIVISION CORRECTLY UPHELD THE TRlAL COURT'S DETERMINATION THAT THE VEHICLE STOP WAS PROPER SINCE DEFENDANT WAS INITIALLY STOPPED FOR A VIOLATION OF THE VEHICLE AND TRAFFIC LAW (RESPONDING TO APPELLANT'S POINT II) ............................................. .............................. 21 POINT TWO AS THE APPELLATE DIVISION FOUND, THE ADMISSION OF BREATH TEST DOCUMENTS DID NOT ii VIOLATE DEFENDANT'S SIXTH AMEND:MENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (RESPONDING TO APPELLANT'S POINT IV) ....................................... 29 POINT THREE DEFENDANT'S CLAIM THAT HE WAS PREJUDICED BY OFFICER LERCH'S TESTIMONY THAT HE REQUESTED TO SPEAK TO AN ATTORNEY PRIOR TO SUBMITTING TO A BREATH TEST IS UNPRESERVED AND WITHOUT :MERIT, AND WAS PROPERLY REJECTED BY THE APPELLATE DIVISION (RESPONDING TO APPELLANT'S POINT III) .......... ...... ....... ......... ..................... ............... ............... ................. .49 POINT FOUR THE TRIAL COURT PROPERLY ALLOWED REBUTTAL TESTIMONY, AND THE APPELLATE DIVISION PROPERLY REJECTED THIS CLAIM (RESPONDING TO APPELLANT'S POINT VI) ................................................. ....... ... ....... ....... 54 POINT FIVE THE PROSECUTOR'S CONDUCT DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL, AND THIS UNPRESERVED CLAIM WAS PROPERLY REJECTED BY THE APPELLATE DIVISION (RESPONDING TO APPELLANT'S POINTS V AND VII) ........................................................ 58 POINT SIX THE PEOPLE'S APPELLATE DIVISION BRIEF WAS PRO PERL Y PREPARED AND FILED, AND THIS ISSUE IS NOT PROPERLY BEFORE THIS COURT (RESPONDING TO APPELLANT'S POINT I) . ..................................................................... 66 CONCLUSION ............................................. .. ............ ......... ............. .... ..... .............. 73 iii TABLE OF CASES AND AUTHORITIES CASE LAW FEDERAL CASES Bullcoming v New Mexico, 131 S Ct2705 (2001) ...... ........ 19, 32, 35, 36, 43, 45, 46 Crawford v Washington, 541 US 36 (2004) ... .. .. ........ .......... ..... 29,33-37,39,40,48 Marks v United States, 430 US 188 (1997) .. ............... ..... ..... ..... .... ........................ 38 Miranda v Arizona, 384 US 436 (1966) ........................................... 7, 9, 12, 16,53 Melendez-Diaz v Massachusetts, 129 S Ct 2527 (2009) ..... 20,30,31,32,34,39-46 Nichols v United States, 511 US 738 (1994) ...................................... .... ................ 38 United States v Cundiff, 555 F3d 200 (8th Cir 2009) .............. ... ........ .. ... .. ............. 38 Whren v United States, 517 US 806 (1996) ................................................. 20, 23, 28 Williams v Illinois, 132 S Ct 2221 (2012) .......... .. ................ .. ................ 36-38,45,26 NEW YORK STATE CASES Green v DeMarco, 11 Mise 3d 451 (Monroe Co Sup Ct 2005) .............................. 39 Harvey v Pinnick, 88 AD2d 40 (4th Dept 1982) ..................................................... 71 In re McDonald, 174 AD2d 942 (3d Dept 1991) ................................................... 71 Matter of Jimmy D. , 15 NY3d 417 (2010) ................... .. .... .......... ... ... .. ........ ............ 52 Matter of William W, 188 Mise 2d 630 (2001) ....................... .. .............................. 25 Pajak v Pajak, 56 NY2d 394 (1982) ...... .. .... ................................... .. ....................... 25 iv People v Allen, 301 AD2d 57 (4th Dept 2002) .............. ................... ... .. ....... .. ..... .... 69 People v Adilovic, 34 Mise 3d 159(A)(App Term 2d Dept 2012) .................. ... ..... .44 People v Al-Kanani, 26 NY2d 473 (1970) ....... ....... .................................... ............. 51 People v Arce, 42 NY2d 179 (1977) ........... .... .......... ... .. ................. .. ....... .... .. .......... 60 People v Ahswal, 39 NY2d 105 (1976) ....... .... ..................... .......... ......................... 59 People v Benson, 34 Mise 3d 1226(A)(Nassua Dist Ct 201 1) ............... ................ .44 People v Blair, 90 NY2d 1003 (1997) ...... ................ ....... ................. .. ..................... 55 People v Bowen, 17 AD3d 1054 (4th Dept 2005) .......... .... ... ......... .. ....................... 69 People v Brooks, 21 Mise 3d 1132 (A) (Bronx Co Sup Ct 2008) ...... ...... ........ .40, 42 People v Brown, 6 AD3d 1125 (4th Dept 2004) ............ ... ...... .. ............................... 69 People v Brown, 13 NY3d 332 (2009) .......... .......... .... ...... ............. ................... .41,48 People v Calabria, 93 NY2d 519 (2000) .................... ............. .... ........ ........ ..... ....... 61 People v Carreira, 27 Mise 3d 293 (Watertown City Ct 20120) .. ...... ...... ... .. .. . 29,44 People v Chianese, 41 AD3d 1168 (4th Dept 2007) ...... ..... ............... ....... .... .. .... .... 68 People v Crimmins, 36 NY2d 230(1975) ....... .......... ................................... 53, 56, 63 People v Curkendall, 12 AD3d 710 (3d Dept 2004) ............ .... .. ......... ... .... ........ .. ... 52 People v DAlessandro, 185 AD2d 114 (1st Dept 1992) .... ................ ......... ........ ... 60 People v Damato, 79 AD3d 1060 (2d Dept 2010) ........................ ... ..... .... ............. .43 People v Delair, 6 AD3d 1152 (4th Dept 2004) ......... ........ .... .. ....... ........ ... ............. 69 People v Di Bari, 26 Mise 3d 1222(A) (North Castle Just Ct 2010) .... ................ .. .43 v People v Edwards, 14 NY3d 741 (2010) ........ ... ..... .. ........... .... ..... .... .. ..... ................ 25 People v Fischer, 9 Mise 3d 1121(A) (Rochester City Ct 2005) ..................... ....... 39 People v Ford, 69 NY2d 7745 (1987) ....... ....... ......... ... .. .... .. ...... ..... .......... .............. 67 People v Freeman, 78 AD3d 1505 (4th Dept 201 0) ... ..... ........ .. ............ ................. 62 People v Galloway, 54 NY2d 396 (1981) .......................... .. .................................... 59 People v Harris, 98 NY2d 452 (2002) ........ ........................ .......... ........................... 55 People v Harvey, 26 Mise 3d 1218(A) (Niagara Co Sup Ct 2010) ........... ...... ........ 43 People v Heide, 84 NY2d 943 (1994) ..................................................................... 62 People v Hernandez, 71 NY2d 233 (1987) .................... ... ....................................... 55 People v Higgins, 55 AD3d 1303 (4th Dept 2008) .... ...... ....................... .. ............... 68 People v Hulbert, 93 AD3d 953 (3d Dept 2012) ......................................... .. .......... 43 People v Jeffery, 2 AD3d 1271 (4th Dept 2003) .... .... ................................... .. .. ...... 27 People v Kanhai, 8 Mise 3d 447 (Crim Ct, Queens Co 2005) ................................ 39 People v Krom, 61 NY2d 187 (1984) ............... .. .......................... .. ......................... 27 People v Krueger, 9 Mise 3d 950 (Lockport Just Ct 2005) ......... .. .... ..... ................ . 39 People v Lebrecht, 13 Mise 3d 45 (App Term 2d Dept 2006) .................... 31, 40, 43 People v Lent, 29 Mise 3d 14 (App Term 2d Dept 2010) ............. ...... ................... .43 People v Lowe, 12 NY2d 768 (2009) ............................. .. ........................................ 27 People v Luedecke, 22 AD2d 636 (4th Dept 1965) .. .... .... .... .................... .. ............. 69 People v Marshall, 30 Mise 3d 145 (A) (App Term 2d Dept 20 10) ...................... .43 vi People v Medina, 53 NY2d 951 (1981) .................................................................. 62 People v Mundo, 99 NY2d 55 (2002) ...................................................................... 23 People v Ortiz, 115 AD2d 531 (1st Dept 1986) ...................................................... 59 People v Ott, 30 AD3d 1081 (4th Dept 2006) ........................................................ 64 People v Patterson, 39 NY2d 288 (1976) ................................................................ 50 People v Paz, 148 AD2d 1 008 (4th Dept 1990) ..................................................... 68 People v Pealer, 89 AD3d 1504 ...................... .. ..... 19,23,31 ,32,49,53,55,58,67 People v Perez, 67 AD3d 1324 (4th Dept 2009) ..................................................... 68 People v Petikas, 10 Mise 3d 915 (Nassau Dist Ct 2005) ....................................... 25 People v Rawlins, 10 NY3d 136 (2008) .................................................................. 41 People v Robinson, 97 NY2d 341 (2001) .......................................................... 20-28 People v Savino, 100 NY2d 192 (2003) .................................................................. 60 People v Scott, 86 NY2d 864 (1995) ....................................................................... 52 People v Shaw, 72 NY2d 1032 (1988) ..................................................................... 52 People v Smith, 18 NY3d 544 (2012) ............ .......................................................... 52 People v Stevens, 21 Mise 3d 128 (A) (App Term First Dept 2008) ...................... .40 People v Stultz, 2 NY3d 277 (2004) ....................................................................... 64 People v Taylor, 24 AD3d 1269 (4th Dept 2005) ................................ ......... ........... 55 People v Von Werne, 41 NY2d 584 (1977) ............................................................. 51 People v Wright, 98 NY2d 657 (2002) ............................................................ ........ 26 vii Schumer v Holtzman, 690 NY2d 46 (1983) ............................................................. 68 Williams v Brooklyn El. R.R. Co., 126 NY 96 (1891) ............................................. 59 OTHER STATE CASES Commonwealth v Dyarman, 2011 PA Super 245,33 A3d 104 cPa Super Ct 2011)47 Commonwealth v Zein inger, 459 Mass 775, 947 NE2d 1060 (Sup Iud CtMA 2012) ...................... .... ........ ..................... ....................... .47 Ramirez v State, 928 NE2d 214 (Ind Ct App 2010) ................................ .. .............. 47 State v Bergin, 231 Ore App 36, 217 P3d 1087 (Or Ct App 2009) ......................... 47 State v Kramer, 278 P3d 431 (Idaho Ct App 2012) .............. .......................... ........ .47 United States v Forstell, 656 F Supp 2d 578 (ED Va 2009) ...... .. ......... ..... ..... ..... ... 47 STATUTES47 9 NYCRR 6031.2 ............. .......................... .............................................................. 33 15 NYCRRR 174 ......................... .. ................. .. ............................ ..... ...... ... .. ..... .. 8,23 10 NYCRR 59.4 ... ..... ... ................. .. .. ........ ........ .. .... ... ................... ... ... .. ................... 33 CPL § 240.20 ........................................................................................................... 33 CPL § 260.30(7) .......... ....... ...... .. ....... ..................... ................ ................. ... ... .... ... .... 55 CPL § 470.05 ........... .............. .......... .. .......... .. ............................. ........ .. 50,60,61,67 CPL § 470.35 .......................................... ... ... ........................................................... 67 County Law § 701 ................ ....... ... ........... ..... ... ........... .. .......................................... 68 County Law § 700 ................ ......... ....... ........................................................ 68, 70-72 viii VTL § 375 ...... ..... ....................... .. .............................................. .................... 8,20,22 VTL § 1192 ................................................ .. .......................... .. ...... .. ............ 1, 4, 5,17 VTL § 1193 ........................................................................ .. ................. 1, 4, 5, 17, 64 ix STATEMENT By permission of the Honorable Carmen Beauchamp Ciparick, Associate Judge of this Court, granted March 14, 2012, defendant appeals from an order of the Appellate Division, Fourth Department, entered on November 18,2011 (89 AD3d 1504), unanimously affirming a judgment of the Yates County Court (Falvey, J.), rendered December 8, 2009, convicting defendant, after a jury trial, of Driving While Ability Impaired (Penal Law § 1192[1]) and felony Driving While Intoxicated (Penal Law §§ 1192[2]; 1193[1] [cJ[ii]). Defendant was sentenced to an indeterminate term of imprisonment of from 2 1/3 to 7 years for the Driving While Intoxicated, and a concurrent definite term of 15 days jail for the Driving While Ability Impaired. Defendant's license was revoked for one year for the Driving While Intoxicated conviction, and suspended for 90 days for the Driving While Ability Impaired conviction. Defendant was also ordered to pay a $5,000 fine for the Driving While Intoxicated conviction. Defendant is currently serving his sentence. According to the New York State Department of Correctional Services website inmate lookup, http://nysdoccslookup.doccs.ny.gov/, accessed on August 21, 2012, defendant has been granted temporary release status. 1 QUESTIONS PRESENTED 1. Was the police stop of defendant's vehicle proper where defendant was stopped for a traffic infraction for having an unauthorized sticker on the rear window of his car? The trial court held that it was, and the Appellate Division affirmed 2. Were the simulator solution record and calibration/maintenance records ofthe breathalyzer machine (People's Exhibits 6-8) properly admitted into evidence as certified business records? The trial court found that they were, and the Appellate Division affirmed. 3. Was defendant prejudiced by the breathalyzer operator's testimony that defendant requested to speak with an attorney prior to submitting to a breath test? The trial court never addressed this issue because defendant did not object to the testimony at trial. The Appellate Division did not direct this claim directly, but found all of the remaining claims to be either unpreserved or without merit. 4. Did the prosecutor's conduct deprive defendant of a fair trial? Defendant's claims in this regard were unpreserved and thus without a ruling in the trial court. The Appellate Division did not address this claim directly, but found all of the remaining claims to be either unpreserved or without merit. 5. Did the trial court properly allow rebuttal testimony from the breath test operator after defendant testified that he had a cough drop in his mouth during the breath test? The trial court permitted this limited rebuttal. The Appellate Division did not address this claim directly, but found all of the remaining claims to be either unpreserved or without merit. 2 6. Did defendant receive a fair trial? The trial court did not address this issue, as it was not raised at trial. The Appellate Division did not address this claim directly, but found all of the remaining claims to be either unpreserved or without merit. 7. Was the respondent's appellate division brief was proper? The trial court never addressed this issue because it was raised for the first time in defendant's appellate division reply brief. The Appellate Division did not address this claim. 3 THE FACTS The Indictment By Indictment Number 08-78, filed December 5, 2008, the Yates County Grand Jury charged defendant with Driving While Intoxicated (VTL § 1192[3]) and VTL § 1193[1][c][ii]), 1 and Driving While Intoxicated: Per Se (VTL § 1192[2]) and VTL § 1193[1][c][ii]). The indictment charged that, on October 19, 2008, at approximately 1 :26 a.m., defendant operated his 1996 Subaru in an intoxicated condition. The indictment further charged that a chemical analysis of defendant's breath revealed that he had .15 of one per centum by weight of alcohol in his blood (24a).2 In a Special Information Charging Predicate Offense, filed on December 11, 2008, the People charged that defendant was previously convicted of the crimes of: DWI in violation of New York State Vehicle & Traffic Law 1192(3) & 1193(1)( c)(ii), a class D felony, in Ontario County Court, County of Ontario, State of New York, on June 19, 2002 for an incident occurring on 3-9-02; and 1 VTL § 1193(1)(c)(ii) states, in pertinent part, that a person who operates a motor vehicle in violation of VTL § 1193(2), (3), or (4), and has previously been convicted of a violation of one of those sections twice within the preceding ten years, shall be guilty of a class D felony. 2 Numerical references followed by "a" are to the record on appeal submitted by defendant- appellant. Numerical references without an "a" are also to the record on appeal submitted by defendant-appellant (the record on appeal is numbered la-212a and then 1-543 [this section begins with the first page of trial transcript, and extends to documents beyond that transcript)) . 4 DWI in violation of New York State Vehicle & Traffic Law 1192(3) & 1193(1)(c)(ii), a class D felony, in Ontario County Court, County of Ontario, State of New York, on June 19, 2002 for an incident occurring on 4-17-02 Pre-Trial Hearing Following the filing of an omnibus motion in which defendant argued, in pertinent part, that the motor vehicle stop was illegal, and the People opposed (63a- 66a; 81a), the trial court (Falvey, J.) ordered a hearing as to "probable cause for the stop" (86a). On July 7, 2009, the trial court conducted a pre-trial hearing. The People's Case Police Officer Kirk Crandall, an officer with the Peun Yan Police Department, was working the 4 p.m. to 2 a.m. shift on October 19th, 2008, when, at approximately 1:15 a.m., he was notified by Yates County Dispatch about an anonymous call regarding a "gray vehicle leaving Sarrasin's" with a "possible intoxicated driver" and "sticker in the ... rear window" (109-110a, 129a, 147a). At approximately 1:26 a.m., while patrolling in the Village of Peun Yan, Yates County, Officer Crandall observed a gray 1996 Subaru. Officer Crandall followed the car for about four minutes. The car had an "unauthorized sticker in the rear window" and it was "weaving in its lane" (1l1-1l3a, 130a, 132a). The sticker in the rear window was a Finger Lakes Community College ("FLCC") sticker 5 (112a).3 After noticing the weaving and the sticker, Officer Crandall turned on his lights to stop the 1996 Subaru (1I2a). The car slowed down, and then pulled over without signaling (1 13 a, 134a). Officer Crandall approached and asked defendant, who was driving the Subaru, for his license and registration.4 Officer Crandall asked defendant where he was coming from, and defendant stated that he was coming from work at Sarrasin's Restaurant. Officer Crandall asked defendant ifhe had anything to drink that evening, and defendant replied that he "had two beers .. . after work" (l17a). Defendant had "red and glossy eyes, impaired speech." Officer Crandall also "noticed the odor of an alcoholic beverage coming from his person" (118a, 136-137a). Officer Crandall asked defendant to engage in field sobriety tests. Before starting the tests, Officer Crandall asked defendant if he had any disabilities with his arms, legs, or feet that he should be aware of. Defendant responded that he had a prior neck injury. Defendant was asked to perform the "horizontal gaze nystagmus test, the walk-and-tum test, the one-leg stand test, the fmger-to-nose test, a finger count test and the Rombeg test" (1I8a). Defendant refused to perform the one-leg stand or the walk-and-tum test. Defendant was unable to complete the rest of the tests 3 Defendant was given a ticket for the unauthorized sticker (112a, 130a) 4 Officer Crandall identified defendant in court as the driver (l13a). 6 properly (120-122a, 139-146a).5 A breath screening test was also "positive," in that it was ".08 or greater" (122a). At 1 :44 a.m. defendant was placed under arrest (122a). In Officer Crandall's professional and personal opinion, defendant was intoxicated (123a). Officer Crandall read defendant his "Miranda and DWI" warnings (123-125a). Defendant was then transported to the Yates County Public Safety Building, where he met Corrections Officer and Breath Test Operator Officer Antonia Lerch at approximately 1:55 a.m. (125a, 150a) Officer Lerch read defendant a series of questions and refusal warnings (152a). After reading him the warnings, Officer Lerch then asked if defendant would be "willing to take the test" (153a). Defendant asked to speak with an attorney. After defendant spoke with an attorney, Officer Lerch read defendant his DWI warnings (154-155a). Defendant agreed to take the test (125-126a, 155a). Post-Hearing Memoranda In a Memorandum of Law dated July 14, 2009, defendant argued that the stop of his vehicle was illegal because the anonymous source did not provide probable cause for the stop, and Officer Crandall did not observe any other traffic infractions that corroborated the anonymous tip. Defendant further argued that there was no evidence that the FLCe sticker "obstructed [d]efendant's view ... or 5 Officer Crandall was trained in giving such tests (119a, 127-I28a) 7 that it was unauthorized." Defendant asserted that the "sticker is sold with the intent that it be placed on the rear window," and "[t]housands of cars travel our state roads every day with stickers such as these without a second look" (175- 177a). The defendant argued that since "the People did not establish adequate probable cause" to stop him, "all evidence" obtained as a result of the stop should be suppressed (l77a). The People, in a Memorandum of Law, dated July 17,2009, argued that the stop was a valid because VTL § 375(1)(b)(i) states 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 here-by prohibited." Section 15 of NYCRR 174 sets forth what stickers are authorized, and the sticker defendant had in his rear window was not authorized. Accordingly, based on that traffic infraction, Officer Crandall had probable cause to stop the vehicle. The People further argued that Officer Crandall also had probable cause to stop defendant based on the anonymous tip and the subsequent corroboration (178-180a). Memorandum-Decision and Order In a Memorandum-Decision and Order, dated August 13, 2009, the trial court found, in pertinent part: Officer Crandall had reasonable cause to stop the defendant's vehicle for an equipment violation under 375(I)(b)(i) of the VTL. He also later properly acquired probable cause to arrest the defendant for 8 operating a motor vehicle while in an intoxicated condition. Therefore, the defendant's request for suppression due to an arrest lacking probable cause is in all respects denied. (20Ia). The court further found that the officer had probable cause to suspect that defendant had committed a VTL violation, and that, in light of the traffic stop, the stop was proper "even if the officer's primary motivation [wa]s to conduct another investigation" (198a). The hearing court also found that defendant's statements to Officer Lerch, while defendant was in custody at the Public Safety Building, were admissible because they were made after he had been given Miranda warnings (202a). The Trial The People's Case G. Philip Biehls, a 911 emergency dispatch officer for Yates County Dispatch, received a call at approximate 1:12 a.m. on October 19,2008, from an anonymous caller, of "an individual about to leave Sarassin's and he was intoxicated condition and ... the individual's name was Robert Pealer" (265). The caller refused to give their name (268). Penn Yan Police Officer Kirk Crandall, having worked as a police officer for fourteen years, was working the 4:00 p.m. to 2:00 a.m. shift that night, on patrol in the Village of Penn Yan (206-207). Officer Crandall received the dispatch call "coming from Sarrasin's Restaurant" (207). He was informed that dispatch had "received a phone call of a possible intoxicated 9 driver leaving Sarrasin's in a gray Subaru that had a FLCC sticker in the rear window" (208). The call was anonymous (208). After receiving the call, Officer Crandall drove and parked in a parking lot near Sarrasin's (208). He then observed a gray Subaru with an FLCC sticker in the rear window pulling out of Sarrasin's parking lot. Officer Crandall followed the car. The car was weaving in its lane (208, 221-222). The FLCC sticker was an unauthorized sticker (209, 225). Officer Crandall stopped the vehicle on Clinton Street, a public highway in Yates County (209-210). Defendant, driving the car, slowed down in the lane, and then pulled over, and provided a license (209, 226, 228).6 Officer Crandall asked defendant where he was coming from, and defendant replied that he was coming from work at Sarrasin's (210). Officer Crandall asked defendant if he had anything to drink, and defendant said that he "had two beers after work." Defendant said that he was going home (210, 229). Defendant had red and glossy eyes, and Officer Crandall could smell the odor of alcoholic beverage coming from him (211, 229-230). Officer Crandall asked defendant to engage in field sobriety tests. When asked if he had any disabilities with his arms, legs, or feet, defendant stated that he had a neck injury (211). Officer Crandall asked the defendant to perform the 6 Officer Crandall identified defendant in court as the driver of the vehicle (209). 10 "horizontal gaze nystagmus test, ... second was the walk-and-tum test, third, the one leg stand test, fourth, the finger-to-nose test, fifth, the finger count test and last ... the Romberg test" (212). Defendant refused to perform the walk and tum or the one leg test (212). The horizontal gaze nystagmus test tests the eyes - "looking for the involuntary bouncing of the eyes." Officer Crandall told defendant to "watch the tip of [his] pen with his eyes only and not move his head back and forth as [he] move[d] it from side to side" (213). Defendant had "lack of smooth pursuit" in both eyes, as well as "nystagmus onset 45 degrees" (213, 243). Next, Officer Crandall gave defendant verbal instructions as well as a visual instruction as to how to perform the finger-to-nose test. Officer Crandall told defendant to place his index fingers of both hands down, and then pick up a finger as chosen by Officer Crandall and pick it up and touch the tip of his nose, and then put it back down at his side, while closing his eyes and tipping his head up (214). Defendant did not follow the instructions. He did not put his hands back, and he missed the tip of his nose on a few occasions (214-215, 238). Officer Crandall also gave defendant verbal and visual instructions regarding the finger count test. He told defendant to "take his thumb and touch each of his forefingers staring with his index, count out loud 1, 2, 3, 4 and count backwards starting with his pinky finger 4, 3, 2, 1" (215). Defendant "did not follow .. . 11 instructions." He "attempted the test twice, shook his hand out and asked again how to perform the test (215). After he was shown how to do the test again, defendant still "did not touch his pinky on the back series, he started with his ring finger" (216, 240). Throughout the tests, Officer Crandall smelled the odor of alcohol beverage coming from defendant's breath, and observed that defendant had impaired speech (216). Police Officer Justin Hamm, who arrived on the scene to assist Officer Crandall, witnessed the sobriety tests and observed that defendant "seemed to be unsteady on his feet and his speech was slurred." Defendant seemed intoxicated (216,259,261). Defendant was placed under arrest at 1:45 a.m. Defendant was read his DWI warnings, and Miranda warnings (217-219, 258). Defendant said that he would submit to a chemical test to determine the alcohol or drug content of his blood (218). Officer Crandall then transported defendant to the Yates County Public Safety Building where he met Corrections Officer Antonia Lerch, the breath test operator, who is a certified New York State breath test operator (220, 274- 275). Prior to administering the test, Officer Lerch asked defendant a series of questions and administered DWI warnings (277). In response to the questions, defendant stated that he had a plate of false teeth in his mouth, and that he was taking medication. After reading defendant the DWI warnings, defendant did not respond, so Officer Lerch read them to him again. Defendant did not respond 12 agam, so Officer Lerch read them to him a third time. After the third time, defendant stated that he would take the test. Before the test is administered, there is an "observation period," during which Officer Lerch watches to make sure that the suspect does not eat anything, drink anything, put anything in his mouth, and does not vomit. Before the observation period, Officer Lerch had defendant take out his false teeth (279-280). The initial observation period started at 2:00 a.m., but after defendant took a drink of water from the glass that his false teeth were in, Officer Lerch restarted the observation period (281). At some point, defendant asked to speak with an attorney. He called an attorney, and then agreed to submit to the breath test (281). After completing the twenty minute observation period, Officer Lerch took defendant to the room to where the test would be administered. She explained to defendant how to take the test. Regular testing was done on the instrument to ensure that it was working properly (282).7 Tests were performed on September 19, 2008, and March 6th, 2009. The simulator solution had been tested on July 30, 2008. Weekly testing was also done on the instmment. Sergeant Nick Dirisio had tested the device on October 1 ih, 2008, and found that the instrument was working properly (297). 7 People's Exhibit 6 (certificate for the simulator solution), and Exhibits 7 and 8 (calibration/maintenance of the breathalyzer machine) were admitted into evidence over defendant's objection (282-294). 13 Officer Lerch completed an operational checklist (299-300). The reading from the breath test instrument indicated that it was working properly, and defendant's result was .15 (302). During the test, defendant had "slurred speech," was "unsteady on his feet," and Officer Lerch had to "tell him several times to listen to what [she] was telling him, not to put anything in his mouth" (304). The Defense Ms. Lori Johns testified that she was a co-worker of defendant's at Sarrasin's restaurant, where she was a waitress and bartender, and defendant was the chef (317). On, October 18, 2008, Ms. Johns worked with defendant offsite at the Clemens Center in Elmira for a catering job. Defendant arrived to the job around 4:30 or 5:00 p.m., and was the first to leave. Defendant returned to Sarrasin's. Ms. Johns did not see defendant drinking anything that night, and when she saw him he did not appear intoxicated, although she admitted that she was "more concerned with [her] own job," and she had no idea what defendant drank that night (317-319). Ms. Johns admitted that in 2003, she was convicted of Driving While Intoxicated and Aggravated Unlicensed Operation in the Third Degree in Ontario County (320). Mr. Thomas Wise, the manager of Sarrasin's Restaurant, testified that October 18, 2008, was a busy day for the restaurant because there was a wedding at the restaurant that day, as well as the event at the Clemens Center (323-24). The 14 offsite function ended around 9:30-10:00 p.m. and defendant left, while the others stayed to clean up (324-325). Mr. Wise saw defendant back at Sarrasin's. When Mr. Wise left, defendant was "sitting at the bar and had a beer in front of him" (325). In Mr. Wise's opinion, defendant was "very tired - - but not intoxicated," although he could not say for "certain" what defendant had to drink that night (326-327). Ms. Laura Wilkolaski, the banquet manager at Sarrasin's, testified that she served defendant a beer from the bar at Sarrasin's sometime after 11 p.m. that night, but that defendant was not intoxicated (329-331). She was not with defendant most of the night because she was working the wedding at the restaurant and defendant was "offsite" (332). Mr. Martin Kubli, a teacher and part-time bartender at Sarrasin's, saw defendant when he "came back from the offsite," sometime "probably after 11" (334-335). Mr. Kubli saw defendant "have two Heineken's." Mr. Kubli served defendant one of the beers (335). He had no concerns about defendant driving home that night (336). Defendant, Robert Pealer, testified that he had been a chef at Sarrasin's restaurant for about four years. On October 18, 2008, he got up at five a.m. to work the two large functions that day (338-339). He finished the job in Elmira around 10 p.m., and the drove back to Sarrasin's . He had two bottles of Heineken 15 to drink (339-340, 354). Ms. Wilkolaski served him one bottle, and Mr. Kubli served him the other, both of which he drank at the bar (340). He left the bar "around one." He did not feel intoxicated, but he felt tired (340, 345). On his way home, driving his 1996 silver Subaru Legacy, he got stopped "at the end of Clinton Street," after driving "a little over two miles" (341-342). Defendant testified that there was a sticker on the back window of his car, but he did not put it there (344). Defendant stated that he told Officer Crandall that he had two beers, that he had his glasses on when he took the field tests, and that he was suffering from radiculopathy in his neck and deformed discs in his spine (345-346, 355). He told Officer Crandall about the problem with his neck (347). The pain caused him to be unable to perform certain tests (348, 355). Additionally, his "hands were numb" because of a pinched nerve (348) . Defendant claimed that Officer Crandall did not read him any Miranda warnings, or DWl warnings (356). Once under arrest, defendant agreed to "blow into the machine," but first had to take out a plate in his mouth that caused him to slur his words (349). Defendant testified that Officer Lerch never looked into his mouth to make sure there was nothing else in his mouth, and that, although he was "sent [to] the bathroom to wash [his] mouth out," he had a Halls Mentho-Lyptus cough drop in his mouth at the time, and he did not spit it out (349-35, 357-3580). Defendant 16 stated that the cough drops, which he takes for his sinuses, smell "sort of' like "alcohol" (350). Defendant also testified that he did not get along well with Ryan, another employee at Sarrasin's (342). Rebuttal When Officer Lerch asked defendant if he had false teeth or anything else in his mouth, he responded that he had false teeth, but did not tell her about anything else that was in his mouth (369). After Officer Lerch had him remove his teeth, she had him rinse his mouth out fully with water in the bathroom. She then "had him open his mouth and lift his tongue." She did not see anything inside defendant's mouth (369). The Verdict The jury convicted defendant of felony Driving While Intoxicated (VTL § 1192[2] and § 1193[1][c][ii]), and Driving While Ability Impaired (VTL § 1192 [1]). The Sentence On December 8, 2009, defendant appeared before the trial court for sentencing. Before imposing sentence, the court stated that it had "never seen a criminal history, which except for drinking and driving, there's nothing there." The court added that, "drinking and driving" had been an "issue" for defendant for 17 a very long time, dating back to 1980 (528-529). The court listed defendant's history - - an arrest for Driving While Intoxicated in 1980, an arrest in 1985 for Driving While Ability Impaired, an arrest in 1988 for Driving While Ability Impaired, a conviction in 1995 for Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree and Driving While Intoxicated (probation revoked), a conviction in 1998 for felony Driving While Intoxicated (probation revoked), conviction in 2002 for felony Driving While Intoxicated, as well as a second conviction for felony Driving While Intoxicated and Aggravated Unlicensed Operation in 2002. The court imposed sentence. With respect to the crime of Driving While Ability Impaired, defendant was sentenced to 15 days jail. With respect to the Driving While Intoxicated, per se, defendant was sentenced to a prison term of from 2 1/3 to 7 years. Defendant's license was revoked for one year for the Driving While Intoxicated conviction, and suspended for 90 days for the Driving While Ability Impaired conviction. Defendant was also ordered to pay a $5,000 fine for the Driving While Intoxicated conviction (531-532). The Appellate Division Decision In an order dated November 18, 2011, the Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction. The court rejected defendant's contention that the admission of the breath test calibration and 18 simulator solution certificates "used in verifying the accuracy of the breathalyzer test," violated his Sixth Amendment right to Confrontation. The court held: The simulator solution certificate is a certified document indicating that a breath test machine accurately measured a given sample of simulator solution to within plus or minus .01% weight per volume. Breath test calibration certificates are generated by employees of the New York State Division of Criminal Justice Services, while simulator solution certificates are generated by employees of the New York State Police. Both are used to establish that the breath test machine used in a particular case is accurate, a necessary foundational requirement for the admission of the breath test results. Pealer, 89 AD3d 1504, 1504-1505. The court, after examining testimony statements barred by the Confrontation Clause, found that, here: the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were not defendant's accusers, but in any but the most attenuated sense (internal quotations and citations omitted). Pealer, at 1505. The court distinguished the instant case from that in Bullcoming v New Mexico, (131 S Ct 2705 [20llD because, in Bullcoming, the prosecution sought to admit evidence (in the form of a forensic laboratory report certifying the defendant's blood alcohol content) "establishing that the defendant was intoxicated, which was an element of the crime charged." Here, "in contrast, the 19 breath test documents were offered merely to show that the breath test machine functioned properly, which is not an element of DW1" The court noted that "the Supreme Court stated in Melendez-Diaz that 'documents prepared in the regular course of equipment maintenance may well qualifY as nontestimonial records .'" The court found that note to be persuasive, and consistent with this Court's interpretations. Id. at 1506. As to defendant's other contentions, the court found that the vehicle stop was proper: Id. The arresting officer stopped defendant's vehicle because it had an unauthorized sticker on the rear window, in violation of Vehicle and Traffic Law §375(1)(b)(ii) . .. . Regardless of whether the stop was pretextual in nature, the court properly refused to suppress the evidence in question. As the Court of Appeals has explained, "where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate [the state or federal constitutions, and] . . . neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant" (People v Robinson, 97 NY2d 341, 349; see Whren v United States, 517 US 806,8 12-813). We note that defendant does not dispute that he committed a traffic infraction in the officer's presence by having the unauthorized sticker on his vehicle window. The court reviewed the rest of defendant's claims and found them either unpreserved or without merit. Id. at 1506-1507. 20 ARGUMENT POINT ONE THE APPELLATE DIVISION CORRECTLY UPHELD THE TRIAL COURT'S DETERMINATION THAT THE VEHICLE STOP WAS PROPER SINCE DEFENDANT WAS INITIALLY STOPPED FOR A VIOLATION OF THE VEHICLE AND TRAFFIC LAW (responding to Appellant's Point II). There is no dispute that defendant was stopped for a traffic infraction after Officer Crandall noticed an unauthorized sticker on the rear window of defendant's vehicle. Defendant, however, asks this Court to ignore the bright-line test established by this Court in People v Robinson, 97 NY2d 341 (2001) (no illegal seizure when a police officer who has probable cause to believe that a driver has committed a traffic infraction stops the vehicle even if the officer's primary motivation is to conduct another investigation) and find that the traffic violation was of such a minor nature that it should not have been enforced. That argument should be rejected. After being notified that an anonymous caller had reported a possibly intoxicated driver leaving Sarrasin' s restaurant driving a gray Subaru with a Finger Lakes Community College ("FLCC") sticker in the rear window, Officer Crandall observed defendant driving the above-described vehicle. He further observed that the FLeC sticker on the rear window of the car was an 21 unauthorized sticker (207-209, 225). The car was also weaving in its lane (208). Officer Crandall initiated a vehicle stop. When the officer approached the vehicle, he observed that defendant had red and glossy eyes, and smelled of alcohol (219, 229-230). Defendant admitted that he had consumed alcoholic beverages after work (210). Officer Crandall asked defendant to perform field sobriety tests, which he failed (211-216). Defendant was thereafter placed under arrest. A subsequent breath test revealed that defendant's blood a1cohollevel was .15 (302). The hearing court found: Officer Crandall had reasonable cause to stop the defendant's vehicle for an equipment violation under 375(1)(b)(i) of the Vehicle and Traffic Law. He later properly acquired probable cause to arrest the defendant for operating a motor vehicle while in an intoxicated condition (201a). Moreover, the hearing court found that Officer Crandall had probable cause to believe that defendant committed a violation of the Vehicle and Traffic Law ("VTL") (198a), and that, in Robinson, 97 NY2d 341, this Court "determined there is no illegal seizure when a police officer who has probable cause to believe that a driver has committed a traffic infraction stops the vehicle even if the officer's primary motivation is to conduct another investigation" (198a). 22 The Appellate Division found that, "the arresting officer stopped defendant's vehicle because it had an unauthorized sticker on the rear window, in violation of Vehicle and Traffic Law § 375(1)(b)(i)."g The Appellate Division again pointed out that, under Robinson, "regardless of whether the stop was pretextual," the court properly refused to suppress the evidence because when an officer has probable cause to believe that a traffic violation has occurred, the stop does not violate the state or federal constitution. Pealer, 89 AD3d 1504 at 1506. Defendant, as he did in the Appellate Division, "does not dispute" (see Pealer, 89 A.D.3d at 1506) that the sticker was a violation, but argues that it is a traffic violation of such a minor nature that should not be enforced. Defendant, however, agrees that, "[t]he police are authorized to stop a vehicle if a traffic infraction occurs in their presence" (defendant's brief, p. 36). See Whren v United States, 517 US 806, 810 [1996]; see also Robinson, 97 NY2d at 341 (2001). Defendant further acknowledges (defendant's brief, p. 36), that this Court has held, "where a police officer has probable cause to believe that the driver of 8 As defendant details in his brief, VTL § 375 (1)(b)(i) states: "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 prohibited." Title 15 (Department of Motor Vehicles) of the New York Codes Rules and Regulations (NYCRR) authorizes the following types of stickers: registration, inspection, electronic toll, parking or security, special events, auto theft prevention, military installation decals, Westchester County taxi or limo for hire, New York State STOPPED, New York State inspection reminder, New York City taxi or limo for hire. See 15 NYCRR 174.1- 174.12. 23 an automobile has committed a traffic violation, a stop does not violate [the state or federal constitutions, and] ... neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant." Robinson, 97 NY2d 341 at 349. Defendant admits that the FLCC "sticker in [defendant]'s rear window was not specifically authorized" (defendant's brief, pp. 36-37). Nor does defendant appear to dispute that Officer Crandall's observations after the initial stop gave him probable cause to place defendant under arrest. Instead, defendant now argues that the "violation" in this case was so "technical" that "giving credence to the trial court's ruling ... would nullify any requirement that there be some reasonable basis for the stop" (defendant's brief, p. 37). Defendant seems to suggest that an officer should make a subjective assessment of whether the infraction violates "the spirit" of the law before he can validly stop a vehicle for the observed violation (defendant's brief, p. 41). Defendant's argument, to ignore the laws of this State, must be rejected. The trial court's decision was not, as defendant argued, "approv[ing]" (defendant's brief, p. 41) a "pretextual stop," but was simply acknowledging that the enforcement of the VTL as written is appropriate. The VTL expressly states the specific types of stickers that are permitted on rear windshields as an exception to the general ban. Had the legislature wanted to make an exception for college stickers of the sort 24 that was on defendant's car, it would have done so. See e.g. People v Petikas, 10 Misc 3d 915, 924 (Nassau Dist Ct 2005): The hoary maxim of statutory construction 'expressio unius est exclusio alterus,' literally means the expression of one is exclusion of the other and was legislatively canonized in New York in McKinney's Consolidated Laws of NY, Book 1, Statutes § 74 (see, Matter of William W, 188 Misc 2d 630 [2001], supra; see also Pajak v Pajak, 56 NY2d 394 [1982]). McKinney's Consolidated Laws of NY, Book 1, Statute § 74 states, in relevant part, that: "[T]he failure of the Legislature to include a matter within [a particular statute] may be construed as an indication that its exclusion was intended. Given the proof of the VTL violation, as conceded by defendant, there is no question that the stop of defendant's vehicle by the police was proper. Moreover, even if Officer Crandall's primary goal, in light of the tip and his observations that defendant was weaving in his lane, was to investigate whether defendant was intoxicated, the stop was still proper in light of the observed traffic violation under Robinson. The ruling of this Court in Robinson, has consistently been reinforced by subsequent decisions ofthis Court. See People v Edwards, 14 NY3d 741, 742 (2010)("The initial stop of defendant's vehicle was permissible and the police officers' subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers' actions" where the stop was based on probable cause that a traffic violation had occurred); see also People v Mundo, 99 NY2d 55,58 (2002)(Uevidence in the record ... support[ed] 25 the finding that the police stopped the vehicle lawfully after having observed the illegal right tum on red"). The facts presented here are nearly identical to the facts of People v Wright, 98 NY2d 657 (2002), wherein this Court reversed the Third Department's vacature of the defendant's conviction for felony Driving While Intoxicated, and found that a vehicle stop, based on probable cause to believe that the defendant had committed a VTL violation was proper. In Wright, a State Trooper received an anonymous tip of reckless driving of a red Suzuki with the top down. When the Trooper observed the described vehicle, he noticed that it had a faulty muffler, and pulled the vehicle over. Thereafter, "based upon his observations, defendant's failure to pass sobriety tests and his admission as to drinking, the Trooper arrested the defendant for driving while intoxicated. Defendant was ultimately indicted and convicted of felony driving while intoxicated." Applying Robinson, this Court held that "[b]ecause there is evidence to support the undisturbed finding of the suppression court that the Trooper had probable cause to believe defendant committed a muffler violation of the Vehicle and Traffic Law, the stop was lawful." Here, there was a specific anonymous tip, an observed violation of the VTL, and further observations corroborating driving while intoxicated.9 9 Although the hearing court found that the anonymous tip alone would not have provided a sufficient basis to stop defendant, as the People argued in their opposition to defendant's 26 When the officer approached the vehicle, he observed that defendant had red and glossy eyes, and smelled like alcohol. Defendant, who admitted to having consumed more than one alcoholic beverage, was also unable to perform the field sobriety tests. There is no question that Officer Crandall had probable cause to place defendant under arrest. 10 Removing the bright-line test of Robinson, as defendant desires, would permit police to stop a car for some traffic infractions but not for others. Such a ruling would take us back to pre-Robinson days when New York courts had to look to the subjective intent of the officer. Robinson established a uniform standard to determine when stops were lawful and when they were not. See 18 Touro L Rev 327 (2001). Defendant's rule, requiring officers to assess whether the "spirit" (defendant's brief, p. 41) of the law was violated, would lead to suppression motion, the anonymous tip was so specific, and the corroboration so exacting, that it provided reasonable cause for the stop. See e.g. People v Jeffery, 2 AD3d 1271 (4th Dept 2003)(stop valid where the 91 1 "report contained details so specific and congruous with that which was actually encountered that the reliability of the information could reasonably be assumed," even assuming the report was anonymous. The report from the 911 "center indicat[ ed] that a 'drunk driver' named 'Jeffery' was about to leave in a specifically described motor vehicle parked at a specific location. The police responded to that location within minutes, observed the described parked motor vehicle and pulled the vehicle over as it was being driven away from that location")(intemal citations omitted). 10 To the extent that defendant is generally challenging the hearing court's determination that there was probable cause for the arrest, that is a mixed question of law and fact, and, since there is record evidence supporting the hearing court's determination, that question is beyond the scope of this Court's review. See People v Lowe, 12 NY3d 768 (2009); see also People v Krom, 61 NY2d 187, 196 (1984). 27 confusion for the police officers, as well as lead to other contested issues of police discretion. The bright-line test of Robinson, which is in accord with the Supreme Court holding in Whren, should remain intact. Applying that rule here - - the stop was valid. Defendant's complaint with the substance of the VTL is one to take up with the state legislature, not on this appeal. 28 POINT TWO AS THE APPELLATE DIVISION FOUND, THE ADMISSION OF BREATH TEST DOCUMENTS DID NOT VIOLATE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST mM (responding to Appellant's Point IV). At trial, the simulator solution record and calibration/maintenance records of the breathalyzer instrument (People's Exhibits 6-8; 486-493), were admitted into evidence over defendant's objection (282-294). Defendant contends, as he did below, that the court erred in admitting the certified documents into evidence under the business records exception to the hearsay rule, because the admission of such records violated his right to confront the witnesses against him. Recognizing that "[m]any New York courts" have determined that such records are non-testimonial, and may therefore be admitted into evidence without violating the defendant's confrontation right (defendant's brief, p. 49), defendant nevertheless urges this Court to ignore the numerous appellate rulings in this matter (both in this State and beyond), and adopt the "reasoning set forth" by the Watertown City Court in People v Carreira, 27 Misc 3d 293 (Watertown City Ct 2010). Defendant's claim should be rejected because the analysis employed by the Appellate Division, that the records were admissible business records that are non-testimonial in nature, is consistent with Crawford and its progeny, as well as the rulings of this Court. 29 Corrections Officer Antonia Lerch, the certified New York State breath test operator who administered the test to defendant testified at trial (274-311), and defendant fully cross-examined her (304-311). Officer Lerch testified that regular testing was done on the instrument to ensure that it is working properly (282). During direct examination of Officer Lerch, the People admitted as business records, certified copies of the simulator solution testing certificates (People's Exhibit 6; 486-487), and the calibration/maintenance records for the breath test instrument, in this case a "Datamaster" (People's Exhibits 7 & 8; 488-493). The instrument is calibrated by the Department of Criminal Justice In Albany, every six months (293). Exhibit 7 indicated that the calibration test was performed on September 19t\ 2008, and the instrument was in proper working order. Exhibit 8 indicated the same for the test performed on March 6, 2009 (293; 488-493). Exhibit 6, the certificate for the simulator solution showed that the simulator solution was tested on July 30, 2008, and the Data Master instrument was within the proper reference range (295; 486-487). Before admitting Exhibits 6-8, the trial court, following an objection from defense that the records were inadmissible under Melendez-Diaz v Massachusetts, 129 S Ct 2527 (2009), heard argument from the People and defendant (284-290). Thereafter, the trial court ruled that the calibration reports "are not considered testimony such that a witness must be present to testify concerning them" (290). 30 Contrasting the instant records with those in Melendez-Diaz, the court found that the testing here was required by statute and was "done as a matter of routine" (291). Citing People v Lebrecht, 13 Misc 3d 45 (App Term 2d Dept 2006), the court added that, "the certificates did not result from structured police questioning, they were not created at official request to gather incriminating evidence against a particular individual, and they did not constitute a direct accusation of an essential element of any offense" (291-292). The Appellate Division, Fourth Department unanimously affirmed the judgment of conviction. The court rejected defendant's contention that the admission of the breath test calibration and simulator solution certificates "used in verifying the accuracy of the breathalyzer test," violated his Sixth Amendment right to Confrontation. The court held: The simulator solution certificate is a certified document indicating that a breath test machine accurately measured a given sample of simulator solution to within plus or minus .01% weight per volume. Breath test calibration certificates are generated by employees of the New York State Division of Criminal Justice Services, while simulator solution certificates are generated by employees of the New York State Police. Both are used to establish that the breath test machine used in a particular case is accurate, a necessary foundational requirement for the admission ofthe breath test results. Pealer at 1504-1505. The court, after examining testimonial statements barred by the Confrontation Clause, found that, here: 31 the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were not defendant's accusers, in any but the most attenuated sense (internal quotations and citations omitted). Pealer at 1505. The court distinguished the instant case from that in Bullcoming v New Mexico, 131 S Ct 2705 (2011), because, in Bullcoming, the prosecution sought to admit evidence (in the form of a forensic laboratory report certifying the defendant's blood alcohol content) "establishing that the defendant was intoxicated, which was an element of the crime charged." Here, "in contrast, the breath test documents were offered merely to show that the breath test machine functioned properly, which is not an element of DWI." The court noted that "the Supreme Court stated in Melendez-Diaz that 'documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records. ", The court found that note to be persuasive, and consistent with this Court's interpretations.ld. at 1506. The Appellate Division correctly rejected defendant's claim because the records are both business records and non-testimonial. In New York, every agency that maintains breath testing instruments is statutorily required to make sure that 32 those instruments are testing subjects accurately. To that end, these instruments are required to be calibrated. See §§ 10 NYCRR 59.4(c) and 59.5(d); § 9 NYCRR 6031.2(a); CPL § 240.20(1)(k). To comply with these procedures, police agencies run simulated breath tests using a solution with a known alcohol content to ensure the accuracy ofthe instruments' reading. The tests are recorded on a standard form and maintained to keep a record of the accuracy of each instrument. The duty to ensure the accuracy and reliability of the instruments exists regardless of whether the result of the test is ultimately inculpatory or exculpatory. Moreover, if the instrument is used to test the blood alcohol content of an intoxicated driver who is prosecuted, the People have a statutory duty to tum over the most recent record of calibration to defense (regardless of whether the People plan to introduce that record into evidence). In Crawford v Washington , 541 US 36 (2004), the Supreme Court held that out-of-court testimonial statements may not be admitted at trial unless the defendant has (or had) the opportunity to examine the witness. Although Crawford did not include a comprehensive definition of what makes something testimonial, the Court did state, "at a minimum, it applies to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations," and excludes statements "that by their nature [ are] not testimonial - - for example, 33 business records. '" Crawford, 541 US at 56, 68. Following Crawford, the definition of testimonial continues to evolve. In June of 2009, the Supreme Court decided Melendez-Diaz, 129 S Ct at 2527, ruling that Crawford does not allow the admission of a certificate of analysis of cocaine in a narcotics possession trial, where the State law allowed criminal convictions for drug possession without testimony at trial by the analyst who tested the substance. The analyst at issue in Melendez-Diaz was an employee of a Massachusetts state lab, charged with the responsibility of receiving and testing narcotics recovered from defendants arrested for the possession of a controlled substance. The lab technician tested the substance possessed by Melendez-Diaz to determine if it was or contained drugs. Once he made the determination that the substance was in fact cocaine, the technician forwarded his opinion in the form of a drug test report, which was then introduced at trial to prove one of the essential elements of the crime charged. The Court found that the documents fell within the "core class oftestimonial statements" described in Crawford. The Court found that the "certificates" were "quite plainly affidavits: declarations of facts written down and sworn by the declarant before an officer authorized to administer oaths." Melendez-Diaz, 557 US at 310 (internal quotations and citations omitted). "The fact in question is that the substance found in the possession of Melendez-Diaz . . . was, as the 34 prosecution claimed, cocame - - the precise testimony the analysts would be expected to provide if called at trial." The statements were, therefore, testimonial, since "the analysts were 'witnesses' for purposes of the Sixth Amendment." !d. Indeed, "the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance." Id. at 311 (internal quotations and citations omitted). The majority opinion, authored by Justice Scalia, included a footnote that "documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records." !d. at 311, fn.1. Two years later, in June of 2011, the Supreme Court, in Bullcoming, 131 S Ct at 2705, held that the admission of a report certifying that defendant's blood alcohol level was above the level necessary for aggravated DWI violated defendant's right to confrontation where the analyst who testified at trial regarding the report, although from the same lab as the analyst who prepared the report, was not the analyst who actually tested defendant's blood and created the report. In so holding, the Court found that the report was testimonial in nature as it was a statement made in order to prove a fact at defendant's criminal trial, and, further, the report did not consist exclusively of a machine-generated number but also indicated that the analyst properly received defendant's sample, performed testing on the sample adhering to a precise protocol, and observed no circumstance 35 or condition affecting the integrity of the sample or the validity of the analysis. Bullcoming, 131 at2713, 2715. Most recently, in Williams v. Illinois, 132 S Ct 2221 (2012), decided in June of2012, the Supreme Court addressed the question of whether Crawford barred the testimony of an expert in a rape trial who testified that a DNA profile produced by an outside lab matched a profile produced by the state police lab using a sample of defendant's blood. Although a majority of the Court found that the testimony was admissible, there was no controlling rationale. The Court was split 4-1-4. Justice Alito authored the plurality opinion, joined by Justices Roberts, Kennedy, and Breyer. 11 Justice Thomas concurred in the judgment, but rejected the plurality's rationale, and no other justice endorsed Justice Thomas' rationale. Justice Kagan authored the dissenting opinion, joined by Justices Scalia, Ginsburg, and Sotomayor. The plurality found that the testimony of the expert did not violate the Confrontation Clause because the testimony was not "offered to prove the truth of the matter asserted ... [0 lut of court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rest are not 11 Justice Breyer, who joined in the plurality fully, also wrote a separate concurring opinion. 36 offered for the truth and thus fall outside the scope of the Confrontation Clause." Williams, 132 S Ct at 2228. The plurality further found that even if the report from the outside lab itself had been admitted, there would have been no Confrontation Clause violation. In reaching that conclusion, Justice Alito relied on the facts that: 1) "[t]he report was produced before any suspect was identified," 2) "[t]he report was not sought for the purpose of obtaining evidence to be used against [defendant] who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose" 3) "[t]he profile that [the lab] provided was not inherently inculpatory (pointing out that, "[o]n the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today." Williams at 2228. Justice Thomas, on the other hand, found that the testimony was introduced for the truth of the matter, but that it was non-testimonial in nature because it lacked the "lacked the requisite 'formality and solemnity' to be considered 'testimonial' for the purposes of the Confrontation Clause." Id. at 2255-2256. Justice Breyer, in his concurrence, noted that the decision did not adequately answer the question of "what, if any" were the outer limits of Crawford, and he would set the case for further briefing and reargument. In lieu of that, he joined the plurality, stating that, "the statements at issue, like those of many laboratory 37 analysts, do not easily fit within the linguistic scope of the term 'testimonial statement' as we have used that term in our earlier cases." Id. at 2224-2225,2248. Typically, "[ w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v United States, 430 US 188, 193 (1977). "But all is not always so rosy. The Supreme Court has oft-noted Marks' limitations, stating that it is more easily stated than applied to the various opinions supporting the result . .. and that it does not seem useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it." United States v Cundiff, 555 F3d 200, 208 (6th Cir 2009) (internal quotations and citations omitted). See also Nichols v United States, 511 US 738, 745-746 (1994) (where there is a "splintered" decision, it is "not useful to pursue the Marks inquiry"). Williams is one of those "splintered" decisions that makes Marks impracticable. Indeed, it is unclear what the narrowest grounds are, since a majority of the Court disagrees with the plurality'S rationale, and no one except Justice Thomas himself applies his rationale. While the interpretation of Williams has been a source of persistent discussion since it was issued, it is clear that there is no majority rationale advanced, and that the testimony in Williams was found to be non-testimonial. 38 Most significantly, from Crawford to the present, with only a few exceptions from some trial courts, New York courts have consistently held that breathalyzer reports are admissible as business records and are non-testimonial. The first group of cases was decided after Crawford, but before Melendez-Diaz. See Green v DeMarco, II Misc 3d 451, 465 (Monroe Co Sup Ct 2005) (breathalyzer reports "as business records [both under the federal and state formulation], do not implicate core concerns of the Confrontation Clause as interpreted by Crawford. ... They are the antithesis of testimony evidence that is the focus of Crawford inasmuch as they are primarily 'typical entries made systematically or as matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls"); People v Kanhai, 8 Misc 3d 447, 453 (Crim Ct, Queens Co 2005)("it is clear that New York statutory embodiment of the business record hearsay exception survives the Supreme Court's decision in Crawford. Since . .. the records in question were not testimonial in nature, were properly certified and meet all the requirements of business records pursuant to CPLR 4518, they are admitted"); People v Krueger, 9 Misc 3d 950, 956 (Lockport Just Ct 2005)(calibration records and simulator solution record non-testimonial hearsay admissible as business records, records were statutorily required to be made and were made pursuant to a procedure that took place before the defendant had even been arrested); People v Fischer, 9 Misc 3d 1121(A) (Rochester City Ct 2005) 39 (same, adding that the technicians do not "bear witness" against a particular defendant). In July of 2006, the first New York appellate decision post-dating Crawford was rendered in People v Lebrecht, 13 Misc 3d 45, 47 (App Term 2d Dept 2006), finding that the records were properly admitted as business records, and were "not testimonial within the contemplation of Crawford." While recognizing that the certificates were "to an extent" prepared for litigation, the court added that the records "were not created at official request 'to gather incriminating evidence against a particular individual' and they did not constitute a direct accusation of an essential element of any offense." The court also held that the making of such records was an "objective procedure" which did not involve "the exercise of judgment and discretion, expressions of opinion, and making conclusions." In an unreported decision, People v Stevens, 21 Misc 3d 128(A) (App Term First Dept 2008), the Appellate Term, First Department, also held that "[d]ocuments relating to the proper working condition of the breathalyzer machine were not testimonial in nature, and their admission did not violate defendant's confrontation rights under Crawford." Lower courts thereafter applied those holdings. See e.g. People v Brooks, 21 Misc 3d 1132(A) (Bronx Co Sup Ct 2008). Following Melendez-Diaz in June of 2009, the analysis regarding the admission of breathalyzer documents has remained the same. If anything, the 40 holding of Melendez-Diaz only reinforced the analysis in New York as it pertained to breathalyzer documents, because in Justice Scalia's majority opinion, calibration reports were specifically exempted from the reach of the ruling, with the statement that "documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records." Melendez-Diaz, 557 US at 311. This makes sense because a certificate of analysis of a narcotic drug is vastly different from a calibration report of an instrument. Moreover, pursuant to this Court's ruling in People v Rawlins, 10 NY3d 136 (2008), New York was already using the two pronged analysis set forth in Melendez-Diaz to (1) examine the challenged evidence to see if it comports with the established business record exception, and (2) examine the evidence again to determine if it is testimonial under Crawford. See Rawlins, 10 NY3d at 149-152. In People v Brown, 13 NY3d 332 (2009), this Court provided additional guidance post-Melendez-Diaz concerning factors to consider when determining whether reports traditionally admitted under the business records are testimonial and thus violative of the Sixth Amendment right to confrontation. In Brown, this COutt held that the introduction of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a biologist from OCME did not violate the defendant's right to confrontation. This 41 Court articulated the following factors as relevant 1D determining whether a document is testimonial: (1) whether the agency that produced the record is independent of law enforcement; (2) whether it reflects objective facts at the time of their recording; (2) whether the report has been bias[ed] in favor of law enforcement; and (4) whether the report accuses the defendant by linking him or her to the crime. Brown, 13 NY3d at 339. Applying the above factors here demonstrates the non-testimonial nature of the breathalyzer records. Like the DNA reports, the certificates are produced by an instrument and merely generate a number, i.e., raw data that measures the quantity of alcohol in the simulator solution. In addition, any problems with the instrument will produce an invalid report that is recorded and kept on file. Finally, although the State Police and the Division of Criminal Justice Services are involved with the calibration of the instrument and the testing of the simulator solution, the certifications are not conducted upon the request of the prosecutor, most of the certifications (as was the case here) are conducted prior to the arrest of the defendant, and the instruments are capable of exculpating the defendant just as much as they are capable of inculpating the defendant. 12 There is certainly no pro 12 Here, the simulator solution was tested by a State Police Crime Laboratory employee (486- 487). The calibration/maintenance was performed by a New York State Division of Criminal Justice, Office of Public Safety technician (488-493). 42 law enforcement bias. Additionally, as in Brown, the technicians performing the tests on the instrument would be unable to offer any subjective analysis. Here, it should also be emphasized that defendant in fact confronted and fully cross- examined Officer Lerch (who actually administered the breath test) at trial. It is no surprise then, that the majority of New York courts have consistently upheld the introduction of breathalyzer documents following Melendez-Diaz. See People v Damato, 79 AD3d 1060, 1061 (2d Dept 2010) ("constitutional right to confront adverse witnesses was not violated by the admission of calibration certificates referable to the breathalyzer machine employed by the police to test his blood alcohol level after he was stopped and detained, since the certificates are not testimonial within the contemplation of Crawford ... and are otherwise admissible under New York's business records exception to the hearsay"); People v Marshall 30 Misc 3d 145(A) (App Term 2d Dept 2010) (following Lebrecht); People v Lent, 29 Misc 3d 14 (App Term 2d Dept 2010)(thorough analysis of why calibration records are admissible under Melendez-Diaz and this Court's factors in Brown); People v Di Bari, 26 Misc 3d 1222(A) (North Castle Just Ct 2010) (same); People v Harvey, 26 Misc. 3d 1218(A) (Niagara Co Sup Ct 2010). The analysis did not change with the Supreme Court's decision in Bullcoming in June of2011. See People v Hulbert, 93 AD 3d 953, 954 (3d Dept 2012)("the documents at issue, which were not created solely for the purpose of 43 prosecuting defendant, contained statements that the breath test machine had been routinely tested to ensure that it accurately measured a sample of simulator solution and also contained an analysis of the simulator solution that had been used. While the statements in these documents provided a 'necessary foundational requirement for the admission of the breath test results,' they" are not accusatory in the sense that they do not establish an element of the crimes [and], standing alone, the documents shed no light on defendant's guilt or innocence"); see also People v Benson, 34 Misc 3d 1226(A) (Nassau Dist Ct 2011); People v Adilovic, 34 Misc 3d 159(A)(App Term 2d Dept 2012). Defendant urges this Court to adopt the reasoning put forth in People v Carreira, 27 Misc 3d 293 (Watertown City Ct 2010), where the Watertown City Court held that the simulator solution and calibration records were testimonial. In finding the records testimonial, that court emphasized that the records did not have the same "neutrality" as other business records because they were "prepared expressly for use in litigation" for "prosecuting DWI suspects" and "[e]ven if those State Police employees conducting the tests do not know the defendants against whom the records will be used, it is not unreasonable to assume, because they play for the same team, they hope for convictions." Carreira, 27 Misc 3d at 298-300. However, it is significant to note that this specific holding has been rejected by appellate courts throughout New York State. 44 As discussed however, while recognizing that the records in question are prepared by law enforcement, the records attest to the functioning of the instrument and are an impartial, objective statement of its functioning. The primary purpose of the records is to ensure that only properly functioning machines are used. The ultimate use of the machine may also lead to a defendant's exculpation. Moreover, it is patently absurd to suggest that all law enforcement would hope for a conviction even where one is not supported by evidence of a crime (i.e. intoxication above the legal limit), or to imply that the individual who tests the machine would have an interest in skewing its performance to wrongly convict people. As in Williams, "there is no suggestion" of "malice or mistake" by the technician. Williams, 132 S Ct at 2240. At the time of this writing there were no reported New York state decisions citing to the most recent Supreme Court decision in Williams. Williams, however, adds further support to the Appellate Division's holding here. As in Williams, the records here were not, as was the case in Melendez-Diaz and Bullcoming "introduced at trial for the substantive purpose of proving the truth of the matter asserted . .. the central fact in question at the defendant's trial, and dispositive of his guilt." Williams at 2223. Additionally, the records were produced before the defendant was even identified, the report "was not sought for the purpose of obtaining evidence to be used against [defendant] who was not even 45 under suspicion at the time," and the reports are not "inherently inculpatory." See Williams at 2228. While defendant may attempt to argue that this Court should adopt Justice Thomas' formality test, that claim is unpreserved since he did not argue below that the records were testimonial due to their inherent formality as certified business records. In any event, as discussed (see p. 36-38), in light of the fractured decision, that test should not be applied as the controlling test, and it should certainly not be applied outside the context of which it was discussed in Williams, i.e. forensic evidence like the reports found inadmissible in Melendez-Diaz (report confirming that the substance was cocaine) and Bullcoming (report certifying blood alcohol level). Even under Justice Thomas' test, not every formal document would be testimonial. Only "extrajudicial statements similar in solemnity to the Marian examination practices that the Confrontation Clause was designed to prevent," Williams at 2260, would be testimonial under Justice Thomas' test. Justice Thomas found that the report in question in Williams, "in substance, certifies nothing." ld. at 2260. Justice Thomas contrasted the report in Williams from the reports in Bullcoming (which bore a "striking resemblance . . . to the Marian practice in which magistrates examined witnesses, typically on oath, and certif[ied] the results to the court," id. at 2261), and Melendez-Diaz (the '''certificates' [we Jre functionally identical to live, in-court testimony, doing 46 precisely what a witness does on direct examination" !d. at 2261). Here, as noted, the certificates merely certify that the instruments were properly calibrated, and are non-testimonial in nature. Lending support to the majority of decisions in this State is the fact that "all state appellate courts deciding the issue have found that such certificates are not testimonial." See State v Kramer, 278 P3d 431,436 fn. 4 (Idaho Ct App 2012). Kramer then cites to the following cases: United States v Forste!!, 656 F Supp 2d 578, 580-82 (ED Va 2009) (certificates of accuracy for speed radar device, tuning fork, and Intoxilyzer held nontestimonial); Ramirez v State, 928 NE2d 214, 220 (Ind Ct App 2010) (certificates verifying routine inspection of breath test instruments held nontestimonial); State v Bergin, 231 Ore App 36,217 P3d 1087, 1089-90 (Or Ct App 2009) (concluding that Melendez-Diaz does not overrule prior Oregon case law finding Intoxilyzer certificates nontestimonial); Commonwealth v Dyarman, 2011 PA Super 245,33 A3d 104 (Pa Super Ct 2011) (calibration logs establish accuracy of device, but are not created in anticipation of particular litigation or for proof of an element of a crime); Commonwealth v Zein inger, 459 Mass 775, 947 NE2d 1060 (Sup Jud Ct MA 2012) (records were business records, under Massachusetts laws, as (1) they were made about the time the machine was certified, (2) they were made by public officials acting under a duty to produce the record, showing they were made in good faith and generated in the regular course 47 of business at the time of certification, (3) they merely signified that testing and calibration procedures were satisfactorily performed, and (4) they were not calculated for use essentially in court or offered to prove an element of the crime charged, so they were nontestimonial). In short, the certifications admitted as People's Exhibits 6, 7, and 8 were properly admitted into evidence under New York's business records exception to the hearsay rule. The Supreme Court's decisions in Crawford and its progeny hsas not and does not change the essence of New Yark jurisprudence finding that such certifications are true business records and non-testimonial in nature. While this Court has not explicitly ruled on the admission of these specific reports, the admission of such reports is in keeping with this Court's rationale in Brown. The Appellate Division decision affirming the trial court's admittance of such documents should be affirmed. 48 POINT THREE DEFENDANT'S CLAIM THAT HE WAS PREJUDICED BY OFFICER LERCH'S TESTIMONY THAT HE REQUESTED TO SPEAK TO AN ATTORNEY PRIOR TO SUBMITTING TO A BREATH TEST IS UNPRESERVED AND WITHOUT MERIT, AND WAS PROPERLY REJECTED BY THE APPELLATE DIVISION (responding to Appellant's Point III). Despite making no objection at the time of the testimony, defendant argues that he was "prejudiced" by Officer Lerch's testimony that defendant asked to speak with, and did speak with, an attorney before agreeing to take the breath test (defendant's brief, p. 41-42). Defendant further argues that the admission of the operational checklist completed by Officer Lerch, in which she noted that defendant spoke with an attorney, caused further prejudice (defendant's brief, p. 43). Defendant's claim, besides being unpreserved, erroneously conflates the admission of defendant's request to speak with an attorney before submitting to the breath test with situations where a trial court erroneously admits evidence of a defendant's constitutional right to counsel. No such constitutional right exists in this case. Although the Appellate Division did not specifically address this claim in its decision, it was nonetheless correctly rejected. See Pealer, 89 AD3d at 1506- 49 1507 ("We have reviewed defendant's remaining contentions and conclude that they are either unpreserved for our review or without merit"). Defendant's claim is unpreserved. Although defendant objected to the introduction of his statements to Officer Lerch before trial, following a Huntley hearing, the court found that the statements were admissible (202a), and no further objections were made. Tellingly, at trial, defendant made no objection to Officer Lerch's testimony that defendant agreed to take the breath test after speaking with an attorney (281), and certainly made no objection on the constitutional ground that he now attempts to raise. The testimony was as follows: Q: Okay. After you restarted the observation period, did you get through the entire 20-minute observation? A: Yes, I did. Q: At any point did the defendant ask to speak to an attorney? A: Yes, he did. Q: And did you allow him to call the attorney? A: Yes, I did. Q: After the defendant called the attorney, did there come a time when he agreed to submit to a breath test? A: Yes. (281 ). Since defendant fai led to object, his claim has not been preserved for review by this Court. See CPL § 470.05(2); see also People v Patterson, 39 NY2d 288 50 (1976)("Our court, with a narrow exception applicable in capital cases, is strictly a law court. A failure to object to a charge at a time when the trial court had an opportunity to effectively correct its instructions does not preserve any question of law that this court can review. . .. A defendant cannot be pe=itted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal"). Moreover, defendant's claim is without any legal merit. In support of his claim, defendant relies on cases where the trial court erroneously admitted testimony where a defendant invoked his constitutional right to counsel like People v AI-Kanani, 26 NY2d 473, 478 (1970)("the trial court committed reversible error when it allowed the police officer, over objection and without limiting instructions, to testify that the defendant, on being questioned about the crime, asserted his constitutional right to the assistance of counsel"), and People v Von Werne, 41 NY2d 584, 587 (1977)("A defendant in a criminal case has the right, granted by both the Federal and State Constitutions, to refuse to incriminate himself. The point of the cases is that a defendant's exercise of his constitutional right may not be used against him by the prosecution"). Thus, defendant argues that "it is reversible error when evidence is presented to the jury that a defendant requested an attorney during a police interview" (defendant's brief, p. 42). 51 There was no such error here, and there is a crucial distinction. The right to consult with an attorney in deciding whether to submit to a sobriety test is only a qualified right to counsel, not a constitutional one. See People v Smith, 18 NY3d 544, 549 (2012) ("[I]f the motorist is arrested for driving while intoxicated or a related offense, this Court has recognized a limited right to counsel associated with the criminal proceeding ... there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing"); see also People v Shaw, 72 NY2d 1032 (1988)( "a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel"); People v Curkendall, 12 AD3d 710, 714-715 (3d Dept 2004)(the right to consult with counsel in deciding whether to submit to a sobriety test is "only a qualified right to counsel, not a constitutional one"). To the extent, then, that defendant's complaint is really that the trial court erroneously found, following a Huntley hearing, that defendant's statements to Officer Lerch were admissible, his claim still fails. "Because voluntariness is a mixed question of law and fact, [this Court's] review is limited to deciding whether the Appellate Division's fmding is supported by evidence in the record." Matter of Jimmy D., 15 NY3d 417, 423 (2010). See also People v Scott, 86 NY2d 864 52 (1995)("The Appellate Division's finding that defendant's confession was voluntary, a mixed question of law and fact, is supported by evidence in the record and therefore beyond this Court's further review"). Here, the record supports the Appellate Division's rejection of this claim (Pealer, 89 AD3d at 1506-1507) because, as the trial court found (202a), defendant's statements to Officer Lerch (in which he asked to speak to an attorney and then said "yes" he would take the breath test) (41a-47a) were made after he had been given Miranda warnings (281). Finally, any error in the admission of this testimony was harmless given the overwhelming evidence supporting defendant's guilt. See People v Crimmins, 36 NY2d 230 (1975).13 13The overwhelming evidence can be smnmarized as follows: Officer Crandall, after he pulled over defendant's vehicle, observed that defendant had red and glossy eyes and smelled of an alcoholic beverage (211). Defendant admitted that he had consumed two beers (210). Defendant failed four field sobriety tests (212-217). During those tests, Officer Crandall continued to smell the odor of alcohol on defendant's breath and observed that defendant had slurred speech (216). Based on his observations and personal and professional experience, Officer Crandall determined that defendant was intoxicated (216-217). Officer Hannn, who backed up Officer Crandall during the stop, observed defendant to be unsteady on his feet and to have slurred speech. Officer Harnm also believed that defendant was intoxicated (259-260). The breath test showed that defendant's blood alcohol level was .15 (201, 499). Officer Lerch, who administered the test, also observed defendant to appear intoxicated, in that he had slurred speech, was nnsteady on his feet, and failed to listen to directions (303-304). 53 POINT FOUR THE TRIAL COURT PROPERLY ALLOWED REBUTTAL TESTIMONY, AND THE APPELLATE DIVISION PROPERLY REJECTED THIS CLAIM (responding to Appellant's Point VI). Defendant claims that the court erred in allowing "improper and prejudicial" rebuttal testimony from Officer Lerch because it only served to bolster the People's case (defendant's brief, p. 60). The brief rebuttal testimony from Officer Lerch in which she stated that she looked inside defendant's mouth after he rinsed his mouth out, and did not see anything, was properly admitted after defendant testified on direct exam that Officer Lerch did not look in inside his mouth before administering the breath test, and that he had a cough drop inside his mouth when he blew into the breathalyzer machine (349-350, 369). After the defense rested, the People, in light of defendant's assertion (made for the first time in his testimony), that Officer Lerch did not look in his mouth before administering the breath test, and that he, in fact, had a cough drop in his mouth at the time of the administration of the breath test (349-350), sought to recall Officer Lerch as a rebuttal witness to "impeach defendant's testimony ... about having a cough drop in his mouth" (362). The prosecutor also sought to question Officer Lerch as to whether methanol is a substance what can be detected by the breathalyzer instrument (363). The court permitted questioning regarding 54 the contents of defendant's mouth, but forbid any questioning on the effects of methanol (366). Although the Appellate Division did not specifically mention this claim, it was nonetheless rejected. See Pealer, 89 AD3d at 1506-1507 ("We have reviewed defendant's remaining contentions and conclude that they are either unpreserved for our review or without merit"). The Appellate Division correctly dismissed this meritless claim. "Rebuttal evidence is limited to evidence in denial of an assertion of a new affirmative fact or other new matter which the opponent has endeavored to prove in reply to the case-in-chief." People v Harris, 98 NY2d 452, 489 (2002); People v Blair, 90 NY2d 1003, 1005 (1997). "CPL 260.30 (7) vests the trial court with discretion to act as the gatekeeper of rebuttal requests." Harris, 98 NY2d at 490. Thus, the determination whether or not to permit rebuttal testimony should not be disturbed on appeal absent an abuse of that discretion. See generally People v Hernandez, 71 NY2d 233, 247-248 (1987); see also People v Taylor, 24 AD3d 1269, 1270 (4th Dept 2005). Here, the trial court properly admitted Officer Lerch's rebuttal testimony. On direct examination, Officer Lerch had testified that before a breath test is administered, there is an "observation period," during which she watches to make sure that the suspect does not eat anything, drink anything, put anything in his mouth, and does not vomit. Before the observation period, Officer Lerch had 55 defendant take out his false teeth (279-280). The initial observation period started at 2:00 a.m., but after defendant took a drink of water from the glass that his false teeth were in, Officer Lerch restarted the observation period (281). Thereafter, defendant testified that Officer Lerch never looked into his mouth to make sure there was nothing else in his mouth, and that, although he was "sent [to] the bathroom to wash [his] mouth out," he had a Halls Mentho-Lyptus cough drop in his mouth at the time, and he did not spit it out (349-35, 357-3580). Defendant stated that the cough drops, which he takes for his sinuses, smell "sort of' like "alcohol" (350). Accordingly, the prosecutor offered the rebuttal testimony of Officer Lerch, not to establish an element of its case-in-chief, but merely to respond to defendant's fact-specific testimony that he had an object in his mouth during the test. As defendant acknowledges, on rebuttal, Officer Lerch merely "added" that she "actually looked into his mouth" and "did not observe anything" (defendant's brief, p. 62; 369). That type of narrow rebuttal testimony, in response to defendant's allegation of a new fact, is entirely proper, and the trial court properly allowed Officer Lerch to testify. See Harris, 98 NY2d at 489. In any event, although the testimony was properly admitted, even assuming, arguendo, that such admission was an abuse of discretion, such admission was harmless in light of the overwhelming evidence of defendant's guilt (Crimmins, 36 56 NY2d at 230) (see p. 53, supra), and in light of the fact that defendant took the stand and the jury heard his version of the events, including his claim that he had a cough drop in his mouth at the time of the breathalyzer test. 57 POINT FIVE THE PROSECUTOR'S CONDUCT DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL, AND THIS UNPRESERVED CLAIM WAS PROPERLY REJECTED BY THE APPELLATE DIVISION (responding to Appellant's Points V and VII). Defendant contends that the prosecutor's conduct deprived him of a fair trial. First, according to defendant, the prosecutor committed misconduct when she "purposely elicited" testimony from Officer Lerch on direct-examination that defendant asked to speak with an attorney before submitting to the breath test (defendant's brief, pp. 55-56). Second, defendant alleges that, in summation, the prosecutor, in one instance, used comments designed to "inflame the jury's emotions" and "simultaneously bolster the credibility of Officer Crandall" (defendant's brief, p. 56) Third, defendant claims that the prosecutor improperly "testified" during summation (defendant's brief, p. 57). Defendant's claims are all unpreserved, without merit, and, in any event, harmless. Although the Appellate Division did not specifically mention defendant's prosecutorial misconduct claim in its decision, it was nonetheless rejected. See Pealer, 89 AD3d at 1506-1507 ("We have reviewed defendant's remaining contentions and conclude that they are either unpreserved for our review or without merit"). The Appellate Division correctly dismissed this claim as it is both unpreserved and without legal merit. 58 Defendant's first point, that the prosecutor committed misconduct when she elicited testimony from Officer Lerch that defendant invoked his right to counsel, is unpreserved, and without merit for the reasons outlined in Point Three, supra, most significantly because defendant did not have a constitutional right to speak with an attorney before taking the breath test. Defendant's next two objections are to statements made by the prosecutor during summation. Both of those statements, however, were properly made in response to defense arguments. In summation, prosecutors and defense counsel alike are afforded the right to "comment on every pertinent matter of fact bearing upon the questions the jury has to decide." People v Ashwal, 39 NY2d 105, 109 (1976) (quoting Williams v Brooklyn El. R.R. Co., 126 NY 96, 102 [1891 D. In that regard, "counsel is to be afforded "the widest latitude by way of comment, denunciation or appeal in advocating his cause." Id. "It is axiomatic that the prosecutor in sunlmation may respond to defense counsel's summation comments." People v Ortiz, 116 AD2d 531, 532 (1st Dept 1986), citing People v. Galloway, 54 NY2d 396,398 (1981). Likewise, prosecutors are permitted "broad bounds of rhetorical comment in closing argument." Galloway, 54 NY2d at 399. Even if the prosecutor made incorrect comments, isolated instances of prosecutorial error on summation are insufficient to justifY reversal in the absence of an obdurate pattern of inflammatory remarks throughout the prosecutor's 59 summation or unless there is prosecutorial misconduct "so pervasive, so egregious and the prosecutor's disregard of the court's rulings and warnings is deliberate and reprehensible." People v D'Alessandro, 184 AD2d ll4, ll8-19 (1st Dept 1992); see also People v Calabria, 93 NY2d 519, 523 (2000). The focus ofthe inquiry is on whether, in light of the entire record, defendant was deprived of a fair trial. See People v Arce, 42 NY2d 179, 191 (1977). Here, the prosecutor's comments, which were responsive to the defense arguments, were well within the bounds of permissible advocacy. Defendant first contends that the following remarks on summation were "highly prejudicial," "not based upon facts in evidence," and "designed to inflame the jury's emotions," and "simultaneously bolster the credibility of Officer Crandall: 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). Defendant did not object to the above remarks on summation, and therefore, his contention is not preserved for appellate review. See CPL § 470.05(2); see also People v Savino , 100 NY2d 192 (2003)("Defendant's challenges to several of the prosecutor's statements during summation are 60 unpreserved"). In any event, the prosecutor's comments were both a fair response to defense counsel's summation, and fair comment on the evidence. Defense counsel commented in summation that defendant's operation of the vehicle was proper, that the reason (the sticker violation) for pulling over defendant was "beserk" and "ridiculous," and that the arresting officer had previously made up his mind to pull over defendant from the moment he received the anonymous call (389,400). Second, defendant contends that the prosecutor improperly "testified" on summation, in the following passage, about facts that were not in evidence: (407). 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. Again, defendant did not object to the above remarks, and therefore his contention is not preserved for review. See CPL § 470.05(2). And, in any event, defendant's contention lacks merit because the prosecutor' s comments were a fair response to defense counsel's argument in summation that consuming two beers would not cause a person's blood-alcohol content to be twice the legal limit (400- 401). 61 Finally, defendant contends that, during summation, the prosecutor improperly and "most egregious[ly)" commented that Officer Lerch: Explained to you and to defense counsel that each chemical substance has its own fingerprint and the instrument detects the 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 objected (408). The trial court sustained the objection and issued a prompt curative instruction that, "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). Defendant made no further objection, and did not move for a mistrial. The curative instruction is deemed to have corrected any error to defendant's satisfaction. See People v Heide, 84 NY2d 943, 944 (1994). Moreover, since defendant failed to take any further action, i.e. request a mistrial, his claim is unpreserved. See Heide, 84 NY2d at 944; People v Medina, 53 NY2d 951 (1981). Even if the remark had not been cured by the prompt admonition, reversal is not warranted because the prosecutor's remark was not so egregious as to deprive defendant of a fair trial. See e.g. People v Freeman, 78 AD3d 1505, 1505-1506 (4th Dept 2010), Iv denied 15 NY3d 952. 62 Further, while Officer Lerch was not permitted to testify regarding the effect the alleged cough drop would have had on the breathalyzer test, the rest of the prosecutor' s comment was a fair recitation of Officer Lerch's testimony. When asked "[h]ow [the instrument] actually takes deep-lung air and converts that into a number," Office Lerch answered, "[the breathalyzer instrument] uses infrared technology. Each chemical component has a blueprint like a fingerprint that determines what his composition is when it's bounced through infrared lights and it's absorbed at difference levels ... " (307). Moreover, the court gave clear instructions that would have alleviated any unfair prejudice. During preliminary instructions, the court explained that "closing arguments are known as summations and like the opening statements, they are not evidence in the case" (191). Before the summations, the court again advised the jury that "summations are not evidence" (381). Thereafter, in its charge, the court described summation as a time when the attorneys "suggested . . . certain inferences or conclusions which they, in their opinion, believed might properly and safely be drawn from the evidence" (413). In any event, defendant's claims should be rejected because the overwhelming evidence (see p. 53, supra) supporting defendant's conviction obviated any possible prejudice that could have resulted from the alleged errors. Crimmins, 36 NY2d at 230. In light of the overwhelming evidence of defendant's 63 guilt, the court's instructions, which the jury is presumed to have followed, and the lack of merit to defendant's claims, there was no unfairness that requires a new trial be given to defendant. Defendant now, for the first time, also alleges that defense counsel's failure to object to the prosecutor's allegedly improper conduct deprived defendant of his right to a fair trial (defendant's brief, p. 59). As has been shown, however, the prosecutor's conduct was not improper, and thus, defense counsel could not have been ineffective for failing to make such a claim. People v Stultz, 2 NY3d 277, 287 (2004). Moreover, the record clearly shows that counsel, who conducted pre- trial hearings, made pre-trial motions, cross-examined the people's witnesses, and presented a defense case was quite effective. Indeed, defendant was found not guilty of common law Driving While Intoxicated (VTL § 1192[3]). See People v Ott, 30 AD3d 1 081 (4th Dept 2006) ("Defense counsel made appropriate pretrial motions, adequately cross-examined the prosecution witnesses, and gave effective opening and closing statements, and defendant was acquitted of the two most serious crimes charged in the indictment" The record thus establishes that defendant received meaningful representation"). Defendant's unpreserved claim should be rejected. Defendant's claim (see defendant's brief, Point VII, pp. 64-65), that all of the alleged "errors viewed together can lead to no other conclusion than that 64 [defendant's] right to a fair trial was denied" (defendant's brief, p. 65), should be rejected for all of the reasons discussed in this brief. Defendant received a fair trial. 65 POINT SIX THE PEOPLE'S APPELLATE DIVISION BRIEF WAS PROPERLY PREPARED AND FILED, AND THIS ISSUE IS NOT PROPERLY BEFORE THIS COURT (responding to Appellant's Point I). At the request of the Yates County District Attorney, the District Attorney of neighboring Seneca County assisted in preparing respondent's appellate division brief. Despite not asking for any remedy whatsoever, defendant now complains that the District Attorney of Seneca County was not "authorized" to assist with respondent's brief. Defendant's argument, besides being unpreserved, and improperly raised before this Court, is legally flawed, and hannful to the promotion of justice. At the request of the Yates County District Attorney, the Seneca County District Attorney assisted in responding to defendant's appellate division brief. The Yates County District Attorney reviewed the brief, and made changes to it before it was submitted to the court (see letter from Yates County District Attorney, Jason Cook, dated October 13, 2011, submitted to this Court by appellant with his leave application). Accordingly, the name ofthe Seneca County District Attorney appeared on the cover page and conclusion page of respondent's brief "of counsel." His name was secondary to that of the Yates County District Attorney (see Respondent's Appellate Division Brief). 66 Defendant, in his reply brief, argued that the brief was "written, filed, and served by Seneca County District Attorney," in violation of County Law § 700.8 because, according to defendant's reading of that statute, the District Attorney of Seneca County had unlawfully "engaged in the practice of law outside of Seneca County" (see Defendant's Reply Brief, p. 2). If the Appellate Division even considered this claim - - which is unlikely since it did not involve a "question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the [defendant]" CPL § 470.15[1] - - it was rejected. See Pealer, 89 AD3d at 1506- 1507 ("We have reviewed defendant's remaining contentions and conclude that they are either unpreserved for our review or without merit"). In any event, this point is outside of this Court's purview because it was clearly not raised until defendant's reply brief. See e.g. People v Ford, 69 NY2d 775, 777 (1987). Furthennore, it is, in no way, a preserved question of law or an appealable order that this Court may review. See CPL § 470.05(2); § 470.35(1). Simply put, CPL § 470.35(1) requires that in order for this Court to review an issue, it must have been raised in the criminal court. Accordingly, this issue is not properly before this Court. Notably, had defendant believed that respondent' s brief was improperly filed, he could have filed a motion to strike the brief. See Rules of the Appellate 67 Division, Fourth Department, Rule 1000.13(r) (motions not specifically listed in statute not precluded); see e.g. People v Paz, 148 AD2d 1008 (4th Dept 1990) (denying motion to strike respondent's brief). Despite his protestations, defendant failed to make any such motion. Moreover, this "issue" has nothing to do with the proceedings below at trial, and therefore could not have prejudiced defendant. See e.g. Schumer v Holtzman, 60 NY2d 46 (1983)(in Article 78 petition challenging the appointment of a special prosecutor, this Court held, "The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence"). 14 In any event, defendant's complaint is legally incorrect. Notably, defendant is not arguing that District Attorneys' cannot seek assistance from other attorneys when preparing a brief. To argue so would be incredibly hypocritical when defense counsel himself was "of counsel" on numerous briefs filed in the Fourth Department on behalf of a former Seneca County District Attorney. See e.g. People v Perez, 67 AD3d 1324 (4th Dept 2009); People v Higgins, 55 AD3d 1303( 4th Dept 2008); People v Chianese, 41 AD3d 1168 (4th Dept 2007); People 14 It is worth noting that there was no need for the appointment of a special prosecutor pursuant to County Law § 701(l)(a) in this instance, because the Yates County District Attorney was merely assisted by the Seneca County District Attorney. 68 v Bowen, 17 AD3d 1 054( 4th Dept 2005); People v Delair, 6 A.D.3d 1152 (4th Dept 2004); People v Brown, 6 AD3d 1125 (4th Dept 2004); People v Allen, 301 AD2d 57 (4th Dept 2002).15 In that light, defendant's argument on this issue appears to be little more than a venting. As the District Attorney of Yates County wrote in his pre-argument letter to the Fourth Department, District Attorneys in rural counties, with limited resources (both in terms of staff and other resources), commonly seek and receive assistance from other District Attorneys. Notably, there is nothing prohibiting such help. As a policy matter, whether in a large or small county, the job of the District Attorney's Office is to pursue and fairly implement justice. See People v Luedecke, 22 AD2d 636 (4th Dept 1965) ("duties of [the district attorney] require not only the prosecution of crime but also the obligation to safeguard and insure the constitutional rights of defendants to a fair and impartial trial"). It simply makes sense that District Attorneys' offices would seek to work together to share knowledge and experience and address common issues. It would be ridiculous to argue (as defendant seems to be doing), that District Attorneys can seek assistance from any other lawyer except other District Attorneys (or, as will be shown, District Attorneys in certain counties). Such cooperation, contrary to defendant's 15 This is just a sampling of the numerous cases that defense counsel was of counsel for on behalf of the Seneca County District Attorney's Office. 69 assertion that it shows a "fail[ure]" to "conduct the prosecution in a manner that fostered faith in the justice system" (defendant's brief, p. 35), in fact promotes a more effective system of justice. In short, County Law § 700(8) is irrelevant. The notion that one District Attorney helping another District Attorney on a case which presents legal issues that both must address somehow "interferes" with one's duties as a District Attorney is nonsense. There is nothing that helps any lawyer, anywhere, more with his or her own professional advancement and legal skills than dealing with different legal issues, regardless of the county in which they arise. The assistance that one District Attorney may give to another certainly provides both with professional development so necessary and important in the active practice of law. In any event, defendant's reliance on County Law § 700(8) is incorrect as a statutory matter. Defendant conveniently cites the law as stating that "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. (defendant'S brief, p. 34). In so doing, however, defendant omits the preceding language regarding the law's application. The law, in its entirety, reads: 70 The district attorney of a county having a population of more than one hundred thousand according to the last federal census and the district attorney of Essex county and any county having a population of more than forty thousand but less than one hundred thousand according to the last federal census, the board of supervisors of which has designated such office as 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 (emphasis added). According to the last census data from 2010, http://guickfacts.census.gov/gfd/states/36/36099.html, accessed on August 22, 2012, Seneca County had a population of 35, 251, and thus, County Law § 700(8) does not apply to Seneca County. Indeed, the Fourth Department has described County Law § 700(8) as "appl[ying] to a class of counties meeting a specified population condition and a full-time designation condition." Harvey v Finnick, 88 AD2d 40, 47 (4th Dept 1982). Seneca County is not in that class of counties, and, accordingly, the prohibition that defendant urges is not even statutorily applicable. Clearly, County Law 700(8) was intended to prevent District Attorney's who are being paid as full-time employees of the county from having other paid work on the side, for example, engaging in the private practice of law. See e.g. In re McDonald, 174 AD2d 942 (3d Dept 1991) (District Attorney found to be in violation of the "the clear proscription against private practice by a full-time district attorney set forth in County Law § 700 [8]"). There are no facts in this 71 record from which one could even speculate that District Attorney Porsch was paid for his assistance. Even assuming, arguendo, that the provision applied to Seneca County, the District Attorney's assistance with the writing of a brief in a neighboring County would not, as claimed by defendant "interfere[] with the performance of his duties as district attorney." County Law § 700(8). In short, defendant's complaint must be dismissed. Defendant has not asked for any relief, has not presented a question of law which this Court may consider, and indeed, has made no effort to conform his complaint to any recognizable context for consideration by this Court. 72 CONCLUSION For the foregoing reasons, the judgment appealed from should be affirmed in all respects. DATED: August 24, 2012 Hannah E.C. Moore, Esq. New York Prosecutors Training Institute, Inc. 107 Columbia Street Albany, NY 12210 (518) 432-1100 Of counsel 73 Respectfully Submitted, Yates County District Attorney Attorney for Respondent 415 Liberty Street Penn Yan, New York 14527 (315) 536-5550