The People, Respondent,v.Robert Pealer, Appellant.BriefN.Y.January 3, 2013 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ROBERT B. PEALER, Defendant-Appellant. BRIEF FOR THE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK AS AMICUS CURIAE CYRUS R. VANCE, JR. District Attorney, New York County President, District Attorneys Association of the State of New York One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov MORRIE I. KLEINBART SUSAN AXELROD ASSISTANT DISTRICT ATTORNEYS Of Counsel DECEMBER 3, 2012 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 STATEMENT OF AMICUS CURIAE.............................................................................. 4 THE RELEVANT FACTUAL BACKGROUND ........................................................... 5 POINT I RECORDS OF THE RESULTS OF TESTS THAT ARE DONE AS PART OF THE POLICE DEPARTMENT'S ADMINISTRATIVE REQUIREMENTS TO MAINTAIN ITS EQUIPMENT IN PROPER WORKING ORDER, AND THAT ARE NOT PREPARED IN CONNECTION WITH OR ANTICIPATION OF A PARTICULAR DEFENDANT'S PROSECUTION ARE NOT TESTIMONIAL. .......................................................... 8 POINT II THE ASSISTANCE RENDERED BY DISTRICT ATTORNEY PORSCH WAS LAWFUL AND APPROPRIATE. ..................................... 28 CONCLUSION ................................................................................................................... 34 -ii- TABLE OF AUTHORITIES FEDERAL CASES Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) ........................... 13-16, 18-19, 21, 27 Crawford v. Washington, 541 U.S 36 (2004). ............................................................. 10, 12 Davis v. Washington, 541 U.S. 36 (2006) ..................................................................... 10-11 Hammon v. Indiana, 547 U.S. 813 (2006) ............................................................. 10-11, 16 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ..................... 11-16, 18-19, 21, 27 Williams v. Illinois, 132 S.Ct. 2221 (2012) ........................................... 15-17, 19, 24-26, 28 STATE CASES Commonwealth v. Dyarman, 33 A.3d 104 (Pa. Superior Ct. 2011) ............................... 28 Haggerty v. Himelein, 89 N.Y.2d 431 (1997) ............................................................... 30-32 Illinois v. Jacobs, 405 Ill. App. 3d 210, 939 N.E.2d 64 (2010) ....................................... 28 Jacobson v. State, 306 Ga. App. 815 (Ct. App. 2010) ...................................................... 28 Matter of Lewis v Carter, 220 N.Y. 8 (1917) .................................................................... 29 Matter of Sedore v. Epstein, 56 A.D.3d 60 (2d Dept. 2008) .......................................... 29 Matthies v. Mississippi, 85 So.3d 838 (S.Ct. Miss. 2012) ................................................. 28 New Mexico v. Anaya, 2012 N.M. App. LEXIS 61 (2012) ............................................ 28 Ohio v. Wolfe, 2011 Ohio App. LEXIS 4203 (2011) ...................................................... 28 Oregon v. Bergin, 217 P.3d 1087 (Ore. 2009) .................................................................. 28 People v. Bonner, 31 Misc.3d 142A (App. Term 2d Dept. 2011) .................................. 27 People v. Brooks, 21 Misc.3d 1132A (Sup. Ct., Bronx Co. 2008) .................................. 27 People v. Brown, 13 N.Y.3d 332 (2009) ....................................................................... 26-27 People v. Coger, 2 A.D.3d 1279 (4th Dept. 2003) ........................................................... 29 -iii- People v. Damato, 79 A.D.3d 1060 (2d Dept. 2010) ....................................................... 27 People v. Di Bari, 26 Misc.3d 1222A (Justice Ct., Town of North Castle, Westchester Co. 2010) ................................................................................................... 27 People v. Di Falco, 44 N.Y.2d 482 (1978) ........................................................................ 29 People v. Fischer, 9 Misc.3d 1121(A) (City Court of Rochester 2005) ......................... 20 People v. Harvey, 26 Misc.3d 1218A (Sup. Ct., Niagara Co. 2010) ............................... 27 People v. Herman, 187 A.D.2d 1027 (4th Dept. 1992) ................................................... 29 People v Hulbert, 93 A.D.3d 953 (3rd Dept. 2012) ......................................................... 27 People v. Krueger, 9 Misc.3d 950 (Justice Ct., Town of Lockport, Niagara County 2005) ............................................................................................................. 20, 27 People v. Lent, 29 Misc.3d 14 (App. Term 2d Dept. 2010) ............................................ 27 People v McClure, 26 A.D.3d 674 (3d Dept. 2006) ......................................................... 29 People v. Mellott, 10 Misc.3d 1056A (Webster Justice Ct. 2005) ................................... 27 People v. Pealer, 89 A.D.3d 1504 (4th Dept. 2011) ........................................................... 7 People v. Rawlins, 10 N.Y.3d 136 (2006) ..................................................................... 26-27 People v. Sanducci, 195 N.Y. 361 (1909) .......................................................................... 33 Ramirez v. Indiana, 928 N.E.2d 214 (Ind. Ct. App. 2010) .............................................. 28 Schumer v. Holtzman, 60 N.Y.2d 46 (1983) ..................................................................... 32 State v. Johnson, 233 P.3d 270 (Kan. 2010) ...................................................................... 28 State v. Kramer, 278 P.3d 431(Ill. 2012) ............................................................................ 28 Williams v. Illinois, at 2273-74, 2277 (Kagan, J. dissenting) ........................................... 19 STATE: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS 10 N.Y.C.R.R. 59.4 ............................................................................................................... 20 County Law Section 700(1) ............................................................................................ 29-31 -iv- County Law Section 700(8) ................................................................................................. 32 County Law Section 701 ...................................................................................................... 32 County Law Section 703 ...................................................................................................... 30 Executive Law Section 63(2) ............................................................................................... 32 Mass. Gen. Laws. Ch. 111 sec. 13 ...................................................................................... 11 OTHER AUTHORITIES 8 J. App. Prac. & Process 1, 6 (2006) ................................................................................. 33 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERT B. PEALER, Defendant-Appellant. BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK PRELIMINARY STATEMENT The District Attorneys Association of the State of New York ("DAASNY") submits this brief as amicus curiae in the above-captioned appeal. By permission of the Honorable Carmen Beauchamp Ciparick, Robert B. Pealer appeals from an order of the Appellate Division, Fourth Department, entered November 18, 2011. That order affirmed a judgment of the County Court, Yates County (Falvey, J.), rendered December 8, 2009, convicting him upon a jury verdict of Felony Driving While Intoxicated and Driving While Ability Impaired, and sentencing him to an indeterminate prison term of from two and one-third to seven years for the felony to run concurrently with fifteen days imposed on the misdemeanor conviction. -2- INTRODUCTION Defendant's conviction arose from his actions in driving his 1996 Subaru on the streets of Yates County while his blood alcohol level was in excess of .08 of one per centum by weight. At trial, the People proved this blood alcohol level by introducing evidence of the result generated by a DataMaster DMT breath test machine. In support of the use of that evidence, the People also introduced as business records, over defendant's objection, certain maintenance reports pertaining to the DataMaster that was used in defendant's case. Those records reflected that the machine had been tested both one month before and four months after defendant's arrest and that it had been operating properly on both occasions. At trial, the police officer who had administered the breath test to defendant testified that after she conducted that test, she had run another test on the machine, using "simulator solution," i.e., solution that had a known percentage of ethyl alcohol, from a certain lot as further assurance that the DataMaster was working properly. The People then introduced, again as a business record, a report concerning the percentage of alcohol in that particular lot of simulator solution. That report stated that the solution contained the appropriate concentration of ethyl alcohol and would provide a value of .10% of 34 degrees centigrade when used in a properly calibrated breath test machine. The People did not call as witnesses at trial the technicians who had conducted the routine maintenance tests on the machine or had tested the simulator solution. -3- On appeal from the judgment of conviction, defendant claimed, inter alia, that the introduction of the calibration and simulator solution records, without the testimony of the relevant technicians, violated his Sixth Amendment right to confront his accusers. Respondent's counsel, Yates County District Attorney Jason Cook, received assistance in responding to defendant's claims from Seneca County District Attorney Barry Porsch. Porsch was identified on the brief as "Of Counsel" to the Yates County District Attorney. In his reply brief to the Appellate Division, defendant argued that such assistance was improper. The Appellate Division, Fourth Department, rejected all of defendant's claims, concluding that the calibration and simulator documents were not testimonial in nature and that the remainder of defendant's attacks, which ostensibly included his complaint about the involvement of the Seneca County District Attorney, were unpreserved and/or meritless. Before this Court, defendant raises eight different claims. Amicus will address two of the eight. First, amicus will address the Sixth Amendment confrontation issue, which is one of significance for prosecutions in New York State: whether records that demonstrated that the breath test machine used to test defendant's blood alcohol level was properly calibrated and that the sample simulator solution contained the correct percentage of ethanol were non-testimonial and, thus, that their admission pursuant to the business records exception to the hearsay rule did not implicate defendant's confrontation rights. Second, amicus will respond to defendant's claim that the -4- assistance rendered by the Seneca County District Attorney to the Yates County District Attorney was somehow improper. STATEMENT OF AMICUS CURIAE The District Attorneys Association of the State of New York (DAASNY) is a state-wide organization composed of elected District Attorneys from throughout New York State, the Special Narcotics Prosecutor of the City of New York, and their over 2900 assistants. Members of the Association are responsible for the investigation of crimes involving intoxicated drivers, including Vehicular Homicides and Assaults as well as Driving While Intoxicated and Impaired. DAASNY's experience on issues relating to the criminal law and criminal procedure applicable to the prosecution of such crimes places it in a position to assist the Court's resolution of a specific issue of statewide concern raised by this appeal: whether routine maintenance calibration records, the creation of which is primarily for administrative purposes and not for use at a trial of any particular defendant and which are prepared in the regular course of the business of a police department, are non-testimonial under the Sixth Amendment and therefore may be admitted at trial under New York's rules of evidence without testimony from the technicians who prepared the reports. Further, with respect to the claim concerning the participation of the Seneca County District Attorney in the preparation of the brief for respondent to the Appellate Division, the Association's interest is equally plain: it is in the interest of all 63 members of the Association – the 62 elected District Attorneys as well as the Special Narcotics Prosecutor of the City of -5- New York – that their efforts in assisting one another in enforcing statewide laws of general application in each of their counties accords with the law and should be recognized not only as beneficial to statewide law enforcement efforts but also to the appellate courts charged with the responsibility of deciding criminal appeals. THE RELEVANT FACTUAL BACKGROUND In the early morning hours of October 19, 2008, police in Yates County, New York, received an anonymous tip that a man who was possibly intoxicated had just driven away from Sarrasin's Restaurant. The caller described the man's car as a grey Subaru with a particular sticker in the rear window. The police observed defendant driving a car matching that description and, after following him for several minutes, stopped defendant's car. One of the officers approached the car and asked defendant for his license and registration. The officer smelled alcohol on defendant's breath and noticed that defendant's eyes were red and glassy, and that his speech was impaired. Defendant also admitted that he had consumed two beers. The officer asked defendant to step out of the car to complete several field sobriety tests. Defendant had difficulty performing some of the tests and refused to perform others. The officer also had defendant submit to a breath screening test, which revealed that defendant's blood alcohol level was in excess of .08, which was the legal limit. The police placed defendant under arrest and transported him to the Yates County Public Safety building, where Officer Antonia Lerch conducted a breath test using a DMT DataMaster breath test machine. She testified at trial and explained to -6- the jury that the machine was calibrated every six months by technicians in Albany at the Department of Criminal Justice. The Albany maintenance reports were admitted as business records over defendant's objection.1 The officer also told the jury that before conducting this test, she followed a preprinted check list to ensure that she used the appropriate procedures before conducting defendant's breath test. When she turned the breath test machine on, it automatically conducted its own diagnostics and preliminary tests to verify that it was operating properly. Once the machine completed those tests, she had defendant blow into the machine. Then, after the machine calculated defendant's blood alcohol content from that breath sample, the machine ran several diagnostic tests again to confirm that it was still operating properly. One of those tests included testing the machine with a sample simulator solution, taken from lot 08220, with a known percentage of alcohol. The officer testified that simulator solution from that lot had previously been tested to ensure that it had the correct concentration of alcohol. The People introduced a report prepared by the New York State Police Forensic Investigation Center reflecting that the testing had been done and that the simulator solution contained in that lot had the appropriate concentration of ethyl alcohol. 1 The officer also testified that that a sergeant in the sheriff's department conducted weekly testing on the machine. Defendant did not object to the admission of that record, which consisted of a two page document containing the handwritten results for weekly tests conducted on the DataMaster machine from July 2, 2008 to March 25, 2009 (Defendant's Appendix 495-96). -7- Defendant objected to the admission of that record as well. Defendant contended that admission of those reports as business records violated his Sixth Amendment right to cross-examine the technicians who had conducted the tests. On defendant's appeal to the Appellate Division, Fourth Department, he renewed his Sixth Amendment claim. The Yates County District Attorney was ably assisted in preparation of the brief for respondent by the Seneca County District Attorney. Defendant complained about this assistance in his reply brief and the People responded to that complaint in a brief letter. The Appellate Division affirmed defendant's conviction. It concluded that the maintenance reports and simulator solution records did not constitute testimonial hearsay, because they were not accusatory in nature but simply established that certain machines were working properly. The court also specifically addressed defendant's claim that the initial police stop was unlawful and rejected that claim. As to the remainder of his claims, the court stated that they were either unpreserved or meritless. The court then affirmed the judgment of conviction. People v. Pealer, 89 A.D.3d 1504 (4th Dept. 2011). The case is now before this Court on a grant of leave by Judge Ciparick. Defendant has renewed, inter alia, his complaints concerning the admission of the maintenance and simulator solution records and the appellate assistance of the Seneca County District Attorney. -8- POINT I RECORDS OF THE RESULTS OF TESTS THAT ARE DONE AS PART OF THE POLICE DEPARTMENT'S ADMINISTRATIVE REQUIREMENTS TO MAINTAIN ITS EQUIPMENT IN PROPER WORKING ORDER, AND THAT ARE NOT PREPARED IN CONNECTION WITH OR ANTICIPATION OF A PARTICULAR DEFENDANT'S PROSECUTION ARE NOT TESTIMONIAL. As noted supra, the first point amicus will address is the propriety of both the trial court's and Fourth Department's rulings that the maintenance/calibration records for the DMT DataMaster and the records in connection with the simulator solution did not constitute testimonial hearsay. Before addressing defendant's Sixth Amendment claim, however, a brief description of the manner in which a DataMaster breath machine operates is in order. That machine measures a defendant's blood alcohol through the use of infrared technology. A defendant blows into the machine and the machine measures the amount of light that is able to pass through the breath sample. The less light that is able to pass through, the greater the percentage of alcohol in that sample. As part of the breath testing, the machine itself conducts several tests to ensure that it is working properly. Initially, when the machine is turned on just prior to the officer administering the test to a subject, it runs through a series of diagnostics in which it checks to make sure its own internal computer and printer are working properly. The machine also conducts a series of "blank tests" in which the machine in -9- essence expels anything in its tubes that would affect the results of a breath test. It does that before the subject blows in the machine and then does it again after the subject has completed his test. Additionally, the machine conducts a test using simulator solution. That is a solution with a known percentage of alcohol in it. A container of the solution is attached to the machine and a portion is measured and introduced into the machine to simulate a breath test. If the machine is calibrated properly, the simulator solution will provide a reading of .10% alcohol content, within a standard deviation, at 34 degrees centigrade. Those tests and their results are recorded in the machine and printed out once the officer has concluded the testing. As part of the machine's six month testing, the technicians check all of the diagnostics and make any necessary repairs. They also run tests on the machine again using simulator solution. The technicians then create records that list the checks on the hardware and any repairs that were made as well as the results of the tests run with the simulator solution. As to the simulator solution itself, each lot is tested to ensure that it contains the appropriate concentration of alcohol necessary for use in the machines before the solution from that lot is distributed for use. That testing occurs at the New York State Police Forensic Investigation Center in Albany. The technician who conducts that test also creates records memorializing the results. These records have an entry for the results of the analysis of the solution as well as a statement that when the solution is used in a properly operating breath test machine, the solution will provide -10- a certain "value" at a defined temperature. In this case, the record of analysis reflected that a properly calibrated machine should have recorded an alcohol content of .10% from the test lot of simulator solution when the machine temperature was 34 degrees Centigrade. It is the maintenance records for the machine and the record prepared for the simulator solution used for defendant's breath test that are at issue in the case at bar. For the reasons discussed below, those records did not constitute testimonial hearsay and were thus properly admitted as business records. The Sixth Amendment's Confrontation Clause states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In 2004, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), in which the Court ruled that the Sixth Amendment barred the introduction of "testimonial" hearsay unless the declarant was unavailable to testify and the defendant had had a prior opportunity to cross-examine the declarant. The Court declined, in Crawford, to define fully what the term "testimonial" meant, although it did state that, at the very least, it included "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations." Id. at 68. Subsequently, the Court applied its definition of testimonial hearsay to different fact patterns and refined that definition to meet the issues presented in various cases. Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), were the first -11- cases in which the Court took the opportunity to do so. Both of those cases were domestic violence cases and both involved oral out-of-court statements. In Davis, a recording of the victim's 911 call was admitted at trial and in Hammon, the prosecutor introduced statements that the victim made to police officers who had arrived at her house after the defendant had fled. In those cases, the Court held that in order to resolve whether statements were testimonial, a trial court was to examine the primary purpose of those statements. If their primary purpose was to enable police assistance to meet an ongoing emergency, the statements were not testimonial. If the primary purpose was to establish or prove past events potentially relevant to later criminal prosecution, then the statements were testimonial and the Sixth Amendment barred their admission at trial, absent the opportunity to cross-examine the declarant. Id. at 823. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court addressed the Confrontation Clause question in the context of scientific reports, considering whether certificates of laboratory analysis constituted testimonial hearsay. There, the prosecutor did not call as a witness the laboratory technician who had conducted the tests on the drugs recovered during the investigation and completed the certificates reporting those results. Those certificates included the weight of the seized bags and that the bags had "been examined with the following results: The substance was found to contain cocaine." The certificates also expressly stated that they had been prepared pursuant to Mass. Gen. Laws. Ch. 111 sec. 13. That Massachusetts statute -12- directed an analyst to provide the police officers with "a signed certificate, on oath" as to the results of analysis of, among other things, narcotics. That statute also stated that the affidavit would constitute prima facie evidence at trial of the type of drugs, their quality and their weight. Id. at 320. The Court held that the admission of these certificates ran afoul of its holding in Crawford. Id. at 330-31. The Court noted that the documents were the equivalent of solemn declarations or affirmations made for the purpose of establishing or proving some fact; thus, they constituted precisely the type of documents barred by the Sixth Amendment in the absence of testimony from the person who had prepared them. Id. at 321. They were "functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination.'" Id. In arriving at this conclusion, the Court noted that the certificates were affidavits reporting the results of forensic tests that had been prepared in response to requests from the police department. Id. at 321, 325. Moreover, the Court emphasized that under Massachusetts law, their "sole purpose" was to provide "prima facie evidence" of the weight of the drugs and the fact that the powder tested was, in fact, narcotics. Id. at 321 (emphasis in original). The Court stated that it was to be "assume[d]" that the analysts were aware of the affidavit's evidentiary purpose, since that purpose. . . was reprinted in the affidavits themselves." Id. Significantly, the Court explained in a footnote that it was not stating that every person whose testimony might be relevant in establishing the chain of custody, -13- authenticity of the sample or accuracy of the testing device would be required to testify. And, critically here, the Supreme Court also noted that "documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records." Id. at 322, fn. 1. Moreover, the Court clarified the admissibility of "business records," post- Crawford. Business and public records were "generally" admissible, not because they qualified as business records under some exception to the hearsay rule. Instead, they were admissible "because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or providing some fact at trial -- they are not testimonial." Id. at 328. Thus, although the certificates of analysis at issue in Melendez-Diaz qualified as business records under Massachusetts's rules of evidence, they were testimonial for Sixth Amendment purposes because they were prepared specifically for use against the defendant at trial. Id. at 329. In Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), the Supreme Court considered the admissibility, over Confrontation Clause objection, of a laboratory report containing the results of tests performed on the defendant's blood to establish his blood alcohol levels. According to the report: the seal on the blood sample was intact when received at the laboratory; the analyst had followed the procedures set out on the back of the report; and the petitioner's blood alcohol level was 0.21 grams per milliliter. That report included a signed certification from the analyst who had conducted the test certifying the results. The prosecutor did not call that analyst but -14- instead admitted the certified report through a supervisor who had not helped conduct the blood test but was familiar with the procedures in that laboratory. Id. at 2710-11. The Court held that the report at issue constituted a testimonial statement and that the government violated the defendant's Sixth Amendment confrontation rights by calling, as a substitute for the forensic analyst who had conducted the blood alcohol analysis, a supervisor who was not present when the tests were conducted. Id. at 2713, 2717. In arriving at that conclusion, the Court noted "[i]n all material respects, the laboratory report in this case resemble[d] those in Melendez-Diaz." Id. at 2717. The Court reiterated its holding in Melendez-Diaz that, "[a] document created solely for an 'evidentiary purpose,' . . . made in aid of a police investigation, ranks as testimonial." Id. at 2717 (emphasis supplied). In a footnote, the majority went on to explain that "to rank as 'testimonial,' a statement must have a 'primary purpose' of 'establish[ing] or prov[ing] past events potentially relevant to later criminal prosecutions.'" The Court added that "[e]laborating on the purpose for which a 'testimonial report' is created, we observed in Melendez-Diaz that business and public records 'are generally admissible absent confrontation . . . because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial." Id. at 2714, n. 6 (citations omitted). In a concurring opinion, Justice Sotomayor "emphasize[d] the limited reach of the Court's opinion." Id. at 2718. She noted that the Court's test focused on the -15- "primary purpose" behind the creation of the document. Thus, the Court had explained, in Melendez-Diaz, that documents created in the regular course of business were ordinarily admissible as business records, under the Federal Rules of Evidence, unless the regular activity memorialized was "the production of evidence for use at trial." Bullcoming at 2720. Similarly, in Confrontation Clause analysis, business and public records were "generally admissible absent confrontation . . . because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial." Id. at 2721 (citations omitted) (punctuation in original). Williams v. Illinois, 132 S.Ct. 2221 (2012), is the Supreme Court's most recent pronouncement on what constitutes testimonial hearsay, this time in the expert testimony context. In Williams, vaginal swabs were taken from a rape victim and sent to Cellmark Diagnostic Laboratory, a private laboratory, for analysis. Technicians there recovered semen from the sample and isolated a DNA profile from that semen. They then generated a DNA report that was sent to the Illinois State Police Laboratory, where an official entered the profile into the state's DNA database. The defendant's DNA profile had been entered as the result of a previous arrest and it matched the Cellmark sample. The defendant was arrested and placed in a lineup at which he was identified by the rape victim. Id. at 2229. At trial, the state called an expert witness who testified about having compared and matched defendant's earlier DNA profile with the profile that Cellmark had developed from the semen sample. -16- The state did not call an analyst from Cellmark to testify as to how that profile had been developed. Id. at 2230-32. The Illinois Supreme Court affirmed over a Confrontation Clause complaint. A badly fractured United States Supreme Court rejected the defendant's claim that the state expert's reference to the results of the Cellmark report violated defendant's Sixth Amendment Confrontation rights, albeit without the agreement of five justices on a rationale for the result. Justice Alito wrote for a four-justice plurality in favor of affirmance. Justice Alito reviewed the Court's post-Crawford rulings on the Confrontation Clause and emphasized that, with the exception of Hammon v. Indiana, which concerned oral statements made to the police by a crime victim, the Court had found testimonial only those out-of-court statements whose "primary purpose" was to accuse a targeted individual of engaging in criminal conduct and which consisted of "formalized statements such as affidavits, depositions, prior testimony, or confessions." Id. at 2242-43. Thus, in Bullcoming and Melendez-Diaz, the Court had concluded that the certified laboratory reports "ran afoul of the Confrontation Clause" because they were "the equivalent of affidavits made for the purpose of proving the guilt of a particular criminal defendant. . . " and because the technicians who prepared the reports were certainly aware that the contents of the reports were inculpatory. Id. at 2243. Applying this two-part test, Justice Alito concluded that the Cellmark report was not testimonial. At the time the report was prepared, the defendant had not been -17- identified or arrested. Thus, the primary purpose of the report was not to accuse him or even to create evidence for trial. Moreover, given the nature of their work, the technicians who had created the profile had no way of knowing how their reports might be used later: When lab technicians are asked to work on the production of a DNA profile, they often have no idea what the consequences of their work will be. In some cases, a DNA profile may provide powerful incriminating evidence against a person who is identified either before or after the profile is completed. But in others, the primary effect of the profile is to exonerate a suspect who has been charged or is under investigation. The technicians who prepared a DNA profile generally have no way of knowing whether it will turn out to be incriminating or exonerating -- or both. Id. at 2244. Additionally, laboratory work was routinely divided up so that the technician simply focused on his or her individual task. Moreover, given the complexities of DNA and DNA analysis, there was little chance of producing a profile that "just so happened" to match the defendant's. Thus, DNA reports bore "little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate." Id. at 2244 (citations omitted). Justice Breyer joined Justice Alito's plurality opinion, but in a separate concurrence, emphasized the fact that the reports in Williams had been generated by professional analysts who, by dint of their locations within the laboratory, were behind a "veil of ignorance that likely prevented them from knowing the identity of the defendant in this case[]" and thus were not part of the criminal investigation. Id. -18- at 2250. He noted that such reports had previously been admissible pursuant to the business records exception to the hearsay rule, and he urged their continued admissibility based on that exception. As for the "primary purpose" test, he found that the Cellmark report was not accusatory in nature. Instead, it was the result of scientific testing that had objectively generated a profile of a suspect. Id. at 2249-50. Justice Thomas concurred in result only, providing the fifth vote for affirmance. He, however, continued to press his view of the Confrontation Clause as "regulat[ing] only the use of statements bearing 'indicia of solemnity,'" i.e., those "'formalized testimonial materials' such as depositions, affidavits, prior testimony, or statements resulting from 'formalized dialogue' such as custodial interrogations." Id. at 2260 (citations omitted). Justice Thomas noted that in Melendez-Diaz, the Court had focused on whether the documents at issue were "functionally identical to live, in- court testimony, doing precisely what a witness does on direct examination." Id. at 2260. When the writer certified the truth of a document's content, the document bore a "striking resemblance" to the Marian practice of examining witnesses on oath and certifying the results to the court. Id. Justice Thomas contrasted the unsigned and unsworn Cellmark report with the laboratory reports in Melendez-Diaz and Bullcoming. The Cellmark report was neither sworn to nor certified and thus, unlike the laboratory reports in the other cases, was not the functional equivalent of live testimony. Id. -19- Justice Kagan, writing for the dissenters, rejected the plurality's analysis and asserted that the correct test was the Melendez-Diaz/Bullcoming primary purpose test. Justice Kagan dismissed the plurality's addition to that test that the document be directed at a targeted subject as constitutionally suspect. The dissenters went on to hold that under the Melendez-Diaz/Bullcoming primary purpose test, the Cellmark report was testimonial. Not only did this report look like other laboratory reports that the Court had previously found to be testimonial, but the trial witness had testified that all of the reports were prepared for the criminal investigation and for the purpose of eventual litigation. See Williams v. Illinois, at 2273-74, 2277 (Kagan, J. dissenting). Although the Court's split decision in Williams is interesting, the rule governing the outcome of this appeal is contained in Bullcoming and Melendez-Diaz. Where the out-of-court statement's primary purpose is a purely evidentiary one, then the statement is testimonial and its admission in the absence of the declarant violated the Sixth Amendment. Where that is not the statement's primary purpose, then it is not testimonial hearsay and its admission is governed by the state's rules of evidence. Applying the primary purpose test to the maintenance and simulator records at issue here, there is no doubt that those records were not testimonial. To begin, the primary purpose for the creation of these maintenance and simulator reports is not to prove some trial fact. Rather, their purpose is primarily an administrative one – to satisfy certain state regulations and to ensure that the various police departments in New York state are using properly calibrated equipment. -20- Pursuant to New York State Department of Health regulation, the police department is required to conduct maintenance checks of the breathalyzer machinery and to keep the reports of those checks. According to 10 N.Y.C.R.R. 59.4(c), "no law enforcement agency" may use the breathalyzer machine unless the "training agency" has verified that such machines operate properly. Maintenance is to be conducted annually and at other intervals recommended by the manufacturer of the machines. As mandated by subsection (d), "training agencies shall be responsible for maintaining records pertaining to verification and maintenance (including calibration) of breath analysis instruments and standards." Thus, New York State regulation requires that entities using breath testing machines take certain, periodic steps to maintain those machines and keep records that those steps have been taken. See People v. Krueger, 9 Misc.3d 950 (Justice Ct., Town of Lockport, Niagara County 2005) (statutory provision and police rules and regulations mandate the testing and reports of breathalyzer machines); People v. Fischer, 9 Misc.3d 1121(A) (City Court of Rochester 2005) (Rule 10 N.Y.C.R.R. 59.4 establishes routine and periodic testing procedures for breathalyzers). Of course, even in the absence of this statutory mandate, maintenance records must be completed as part of the oversight and administration of the police department. A police department must have available certain equipment, including a breath machine, to conduct its business of policing the community. And, a police department must regularly maintain those machines to ensure that they are operating -21- accurately and properly whenever they are needed. Toward that end, the police department must also create, keep and maintain records of the maintenance tests conducted on those machines. Without such records, there would be no proof that the machines had been tested and were operating properly. It is thus critical from a business perspective that the technicians who create those records accurately report that the tests were done, the timing of the tests and the results. And, to ensure that those records are accurate, the technicians must create the documents at or near the time of the tests. In short, the police department has an obvious administrative purpose for conducting the tests and keeping the reports: to fulfill its business duty of maintaining its own test equipment. In sum, breath machine maintenance reports are not completed in anticipation of a criminal case. Rather, they are done because it is the duty and responsibility of the police department to do these tests and keep the related calibration records. As the Supreme Court took pains to note in both Bullcoming and Melendez-Diaz, when the primary purpose for the creation of the records is an administrative one and not to prove some trial fact, they are precisely the types of records that are excluded from the definition of "testimonial." Examination of the particular documents at issue here merely confirms that when the police technicians created these reports, they did so primarily for administrative reasons. To begin, none of the reports was completed near in time to defendant's arrest and none even mentioned defendant. Two of those records -- the -22- first maintenance records and the simulator solution documents -- were created several weeks before defendant even committed his crime, let alone before he became a suspect. The second maintenance record was compiled months later. Given the lack of temporal or substantive connection with defendant, it was readily apparent that the records were not created with him or his criminal trial in mind. In fact, given that the maintenance tests themselves were scheduled to be done every six months, it is apparent that the related calibration records were not linked to any particular suspect and therefore were not created with any defendant in mind. The form and content of the documents was further proof that the technicians' primary purpose was not to create documents that would be introduced at a trial but to record the fact that tests were done and that the breath test machinery was working properly and the simulator solution had the appropriate concentration of alcohol. Starting with the records of the maintenance checks on the breath machine (see People's Exhibits 7, 8; Defense Appendix 488-493), these two-page documents looked like standard maintenance records. One page recorded the six checks undertaken on the machinery, such as checks of the "controls and indicators" and "printer operations." There was no illumination of what those tests entailed and the results were listed as "ok." There was a second page that listed the results of running the simulator solution through the machine. There is no description of how the simulator solution test was conducted, when it took place or how long the test lasted. Nor is there any explanation for what the results, i.e. the percentage of alcohol -23- contained at a certain temperature, means. Had it been the primary purpose of the technicians to create documents that stood in place of live testimony, they would have included far more detail as to what they had done and what those tests had uncovered. The same is true of the lot simulator solution documentation (People's Exhibit 6; Defense Appendix 487). At the risk of undue repetition, that document did not include any statement that directly addressed the issue at defendant's trial, which was his blood alcohol level. It simply reflected the ethyl alcohol contents of that lot and stated that, when the breath machine was working properly, the solution would "provide a value of 0.10 at 34 deg C." The document, too, contained no description of the tests utilized to arrive at that percentage; nor was there any discussion of why that particular concentration was appropriate. And, as with the other records, the technicians did not include any sort of description of their own qualifications to conduct these tests; in other words, they did not include those types of statements that one would expect in a document that was intended to be introduced at a criminal trial as a substitute for live testimony. In sum, when the Melendez-Diaz/Bullcoming test is applied to the documents at issue here, it is clear that these documents did not constitute testimonial hearsay. The primary purpose behind their creation was not to prove trial facts but to allow the police department to carry out its business obligation of demonstrating that its machinery was operating properly. -24- To be sure, the technicians conducting the maintenance tests and creating those records did certify that tests had been done, that the machines were operating properly, and that the report entries had been made at or near the times of the tests. But, the inclusion of that language on the reports does not affect their character as non-testimonial records. Those certifications merely demonstrated that the police department was in compliance with their mandate to maintain their machinery. The fact that the same records might also make their way into a criminal trial is incidental to both the creation of the reports and the certification of the results. It bears note that the Williams plurality in favor of affirmance further refined the Melendez-Diaz/Bullcoming test by adding to the primary purpose test a focus on whether there was a suspect who had been identified or arrested. Even with that refinement, however, there is no doubt that the trial court was correct in concluding that the records were admissible as business records and that their admission did not implicate the confrontation clause. Two of the documents -- the first maintenance report and the simulator solution test report -- were created even before defendant committed his crime, let alone became a suspect. Under the plurality test, those are readily identified as non-testimonial. While the second maintenance report was completed after defendant's arrest, it was done so many months later that, even on its face, it is clear that it was not done with defendant or any other criminal defendant in mind. -25- Nor would the creators of the reports have considered that those reports were "accusatory" of defendant in any meaningful sense. First, because the records merely show that certain machinery was working on the dates of the tests, none of them could fairly be characterized as "accusatory." Moreover, because breath tests can exculpate a defendant by showing that he was not, in fact, intoxicated, the maintenance technicians had no way of knowing how their reports would be used. Like the DNA laboratory technicians in Williams, each of whom played only a small role in the creation of the DNA profile that was later used at the defendant's trial, the technicians preparing the maintenance reports have only a small role in the accurate measurement of a defendant's blood alcohol level. Their reports pertained solely to the proper working of the machines used to make those calculations. Finally, defendant had every opportunity at trial to conduct meaningful cross- examination about the results of the breath test. Police Officer Antonia Lerch, who conducted the breath test that produced evidence of defendant's blood alcohol content, testified at defendant's trial about the results of that test. In addition, her check list was introduced at trial and it reflected that she had conducted her own tests to ensure that the machine was operating properly. The computer printout generated by the machine lists the tests that were run both before the officer administered defendant's breath test and then after that test, all of which demonstrated that the machine had continued to work after the test was concluded. Defendant was, of course, free to cross-examine Lerch about her testimony and the items on those -26- records. Given these internal checks to prevent mistakes, the introduction of the challenged maintenance reports does not implicate the concerns that "the Confrontation Clause aimed to eliminate." Williams at 2224. As noted, both the plurality and dissent in Williams agreed that the Melendez- Diaz/Bullcoming test still has relevance in determining whether a document is testimonial. Their dispute is as to whether that test requires further refinement. But, no matter whether the Melendez-Diaz/Bullcoming test is to be applied as the plurality or the dissent intends, either method compels the result that the records at issue here are not testimonial. Indeed, that conclusion is consistent with this Court's ruling in People v. Brown, 13 N.Y.3d 332 (2009). In Brown, the People introduced the DNA report concerning semen recovered from a rape victim that was created by a private laboratory. The laboratory technicians who compiled the report did not testify; rather the report was introduced as a business record. An analyst from the Medical Examiner's Office then testified that that profile matched the DNA profile that she had obtained from the defendant's blood. Id. at 334-36. This Court held that the DNA report was not testimonial and thus properly admitted at trial without calling the technician who had compiled it. In arriving at this conclusion, this Court placed significant weight on the purpose, content and timing of the report. Citing to the Court's earlier decisions in People v. Meeks, and People v. Rawlins, 10 N.Y.3d 136 (2006), this Court emphasized that documents that "recorded neutral testing procedures" and that, by themselves, -27- "shed no light on the guilt of the accused," 10 N.Y.3d at 339, were not testimonial while documents, such as the fingerprint comparison reports in Rawlins, were testimonial because they were prepared by the police precisely to be entered at the defendant's trial. Id.2 Indeed, since Melendez-Diaz, the courts of New York State that have addressed the admissibility of maintenance records for breathalyzer machines have, with few exceptions one of which is cited by defendant (Appellant's Brief at 49), held that maintenance records do not constitute testimonial hearsay and thus can be admitted without calling the technician who prepared them. See e.g. People v Hulbert, 93 A.D.3d 953 (3rd Dept. 2012); People v. Damato, 79 A.D.3d 1060 (2d Dept. 2010); People v. Lent, 29 Misc.3d 14 (App. Term 2d Dept. 2010); People v. Bonner, 31 Misc.3d 142A (App. Term 2d Dept. 2011); People v. Di Bari, 26 Misc.3d 1222A (Justice Ct., Town of North Castle, Westchester Co. 2010); People v. Harvey, 26 Misc.3d 1218A (Sup. Ct., Niagara Co. 2010); People v. Brooks, 21 Misc.3d 1132A (Sup. Ct., Bronx Co. 2008); People v. Fisher, 9 Misc.3d at 1121(A); People v. Mellott, 10 Misc.3d 1056A (Webster Justice Ct. 2005). 2 To be sure, in Brown, this Court also looked to a number of other factors such as whether the report contained subjective conclusions or merely recorded objective facts. Subsequently, in Bullcoming, the Supreme Court specified that the "objective" nature of the facts recorded in a report did not overcome the bar of the Confrontation Clause. The Supreme Court instead focused its analysis on the purpose of the document and the formality with which it was prepared. -28- Similarly, post-Melendez-Diaz, the courts of other states reviewing this issue have concluded that the Sixth Amendment does not bar the introduction of calibration reports as business records in the absence of the technicians who conducted the maintenance tests. See Jacobson v. State, 306 Ga. App. 815 (Ct. App. 2010); State v. Kramer, 278 P.3d 431(Ill. 2012); Illinois v. Jacobs, 405 Ill. App. 3d 210, 939 N.E.2d 64 (2010); Ramirez v. Indiana, 928 N.E.2d 214 (Ind. Ct. App. 2010); State v. Johnson, 233 P.3d 270 (Kan. 2010); Matthies v. Mississippi, 85 So.3d 838 (S.Ct. Miss. 2012); New Mexico v. Anaya, 2012 N.M. App. LEXIS 61 (2012); Ohio v. Wolfe, 2011 Ohio App. LEXIS 4203 (2011); Oregon v. Bergin, 217 P.3d 1087 (Ore. 2009); Commonwealth v. Dyarman, 33 A.3d 104 (Pa. Superior Ct. 2011). Neither the plurality nor the dissent in Williams undercuts the holdings of these cases. In sum, the trial court properly held that the calibration and simulator solution records did not constitute testimonial hearsay and thus correctly admitted them at trial as business records. POINT II THE ASSISTANCE RENDERED BY DISTRICT ATTORNEY PORSCH WAS LAWFUL AND APPROPRIATE. As recited on the cover of the People's brief to the Appellate Division, Barry Porsch, the District Attorney of Seneca County, appeared "of counsel" in connection with the appeal in that court. In his reply brief to the Appellate Division, defendant complained about District Attorney Porsch's involvement on the appeal; the People -29- filed a letter response to the complaint. The Appellate Division rejected the claim without comment, and defendant renews it now before this Court. Specifically, defendant contends that District Attorney Porsch was not authorized to appear on behalf of Yates County and seems to suggest that the Yates County District Attorney improperly designated his authority to District Attorney Porsch. This claim provides no basis for relief. It is, of course, the duty of a county's district attorney "to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed." County Law §700(1); see People v. Di Falco, 44 N.Y.2d 482, 487 (1978); Matter of Lewis v Carter, 220 N.Y. 8, 15 (1917); Matter of Sedore v. Epstein, 56 A.D.3d 60, 65 (2d Dept. 2008). The District Attorney's obligation to appear on behalf of the People of the State of New York is not limited to appearances in the trial level courts; that same County Law provision that mandates appearances at trial obligates the District Attorney to file a brief in opposition to any appeal and in support of the judgment of conviction unless the appeal is from a judgment which the District Attorney concedes should be reversed. People v. Herman, 187 A.D.2d 1027, 1028 (4th Dept. 1992); People v. Coger, 2 A.D.3d 1279, 1280 (4th Dept. 2003); People v McClure, 26 A.D.3d 674, 675 (3d Dept. 2006). At the same time that the County Law obligates the county district attorney to appear in all prosecutions, it also recognizes that not every elected District Attorney -30- has the resources needed to prosecute or handle every type of matter with which he is presented. Thus, for instance, County Law Section 703 provides that, "With the written approval of the county judge of a county in which an indictment has been found for a capital or other crime which presents unusual difficulty upon the trial thereof, the district attorney may employ counsel to assist him upon such trial." Significantly, County Law Section 703 does not place any limitation on who may be hired to assist the district attorney; it may be private counsel or it may be someone who resides outside the county. Moreover, nothing in the law prohibits an elected district attorney from seeking unpaid appellate assistance from another prosecutor's office within the state. Permitting a skilled appellate prosecutor to assist in the filing of an appellate brief accomplishes at least two important goals. First, it guarantees that small offices, no less than large ones, fulfill their obligation under County Law Section 700(1) to defend against all challenges to judgments of conviction. Second, and of equal significance, it insures that the issues presented in the briefs are addressed concisely and correctly as an aid to the court. In other words, permitting assistance like that provided by District Attorney Porsch helps to ensure a fair disposition of the appeal. In an attempt to demonstrate that it is inappropriate for a sitting District Attorney to assist a colleague responding to an appeal, defendant cites Haggerty v. Himelein, 89 N.Y.2d 431, 436 (1997). In Haggerty, this Court rejected the notion that a county district attorney could not appoint, as a special assistant district attorney, an -31- individual serving as an assistant attorney general to aid in a county prosecution for homicide. The Court recognized that as long as the district attorney "retained the ultimate prosecutorial authority" for the matter on which the assistant attorney general was providing assistance, there was no bar, statutory or jurisdictional, prohibiting such assistance. Haggerty v. Himelein, 89 N.Y.2d at 436. In the opinion, the Court noted that a different result might obtain if the attorney general himself, a statewide constitutional officer, had been called upon to serve as an assistant district attorney in a subordinate role to the district attorney. Although it is unclear why defendant cites Haggerty, defendant appears to suggest that Haggerty prohibits one district attorney from serving in a subordinate role to another. But any such suggestion is demonstrably wrong. First, County Law Section 700(1) provides that "when the place of trial of an indictment is changed from one county to another, it shall be the duty of the district attorney of the county where the indictment is found to conduct the trial of the indictment so removed, and it shall be the duty of the district attorney of the county to which such trial is changed to assist in such trial upon the request of the district attorney of the county where the indictment was found." In other words, the County Law itself contemplates the district attorney of one county assisting, that is, acting as a subordinate, to a second -32- district attorney.3 More to the point, unlike the attorney general, District Attorney Porsch is not a statewide constitutional officer. Thus, the subordination question raised in Haggerty has no application here. Rather, what occurred here is akin to what was held permissible in Schumer v. Holtzman, 60 N.Y.2d 46 (1983). In Schumer, the Court found that a district attorney could appoint someone to act under his or her direction but could not delegate his or her authority to another. Such reassignment of obligation, the Court ruled, is available only pursuant to County Law Section 701 or a superseder order pursuant to Executive Law Section 63(2). In the case at bar, the Yates County District Attorney did not delegate his authority in derogation of any statute. He merely sought legal assistance from the prosecuting authority of a neighboring county. Indeed, it is the Yates County District Attorney whose name appears in connection with the reported case, not that of the Seneca County District Attorney. Defendant also points to County Law Section 700(8) to suggest that there was some impropriety here. That subsection provides that a full time District Attorney "shall give his whole time to his duties and shall not engage in the practice of law, 3 Worthy of note in this regard is Executive Law Section 63(2) which permits the governor to supersede a district attorney with the attorney general and empowers the attorney general to assume all the powers of the county district attorney. It also provides that "in any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney-general or the deputy attorney-general so attending." In other words, when the attorney general acts as a local district attorney, the superseded district attorney is to subordinate himself to the attorney general by providing whatever assistance the attorney general requests. -33- 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." It is difficult to see how unpaid assistance rendered by one District Attorney to another could possibly interfere with the performance of the duties of either office. Finally, even assuming for the sake of argument that there was some misstep here, defendant makes no effort to identify the appropriate relief. That failure alone mandates rejection of the claim. See 8 J. App. Prac. & Process 1, 6 (2006) (In concluding a legal argument, an appellant's counsel must identify and support a remedy. . . . . Without proper remedy analysis, the court is left asking "So what?"). This Court's decision in People v. Sanducci, 195 N.Y. 361 (1909), is instructive. In Sanducci, the District Attorney sought and obtained, pursuant to the relevant provision of the County Law, an order permitting employment of counsel to assist him in the trial of the defendant. Unfortunately, the district attorney retained as counsel the county judge who had approved the order of assignment. This Court expressed its disapproval "of the course pursued," but, at the same time, noted that "this does not concern the defendant and he has no legal right, as defendant, to complain of it." Hence, it did not grant any relief for the misstep. The same logic applies here, where any assistance rendered by the District Attorney of Seneca County impaired no right of the defendant. -34- In sum, the assistance provided by District Attorney Porsch was both lawful and appropriate. Defendant is entitled to no relief because of that aid. CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. New York County District Attorney President, District Attorneys Association of the State of New York One Hogan Place New York, New York 10010 By: _________________________________ SUSAN AXELROD Assistant District Attorney New York County MORRIE I. KLEINBART SUSAN AXELROD Assistant District Attorneys Of Counsel December 2012