The People, Respondent,v.Robert Pealer, Appellant.BriefN.Y.January 3, 2013Estimated time: 15 minutes To be argued by: John A. Cirando, Esq. Syracuse, New York STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Responden t r against ROBERT B. PEALER, Defendant/Appellant. Yates County Indictment No. 08-78 Appellate Division Docket No. KA-II-OI024 THE DEFENDANT/APPELLANT'S REPLY BRIEF D.J. & J.A. ClRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel TABLE OF CONTENTS PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I 2 THE DISTRICT ATTORNEY OF SENECA COUNTY WAS NOT AUTHORIZED TO PREPARE, FILE AND SERVE THE PEOPLE'S BRIEF IN THE APPELLATE DIVISION. POINT II 6 THE POLICE STOP OF APPELLANT'S VEHICLE WAS IMPROPER. POINT III 8 APPELLANT WAS PREJUDICED BY DEPUTY LERCH'S TESTIMONY THAT HE REQUESTED TO SPEAK TO AN ATTORNEY PRIOR TO SUBMITTING TO A BREATH TEST. POINT IV 10 APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE TRIAL COURT ADMITTED CERTIFIED DOCUMENTS INTO EVIDENCE UNDER THE BUSINESS RECORD EXCEPTION OT THE HEARSAY RULE. POINT V 17 APPELLANT WAS DENIED DUE PROCESS OF LAW DUE TO PROSECUTORIAL MISCONDUCT. POINT VI 20 THE TRIAL COURT ERRED IN ALLOWING IMPROPER AND PREJUDICIAL REBUTTAL TESTIMONY. POINT VII 22 APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED. CONCLUSION 23 THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR IN THE ALTERNATIVE, A NEW TRIAL ORDERED. INDEX TO APPENDIX APPENDIX A A-l COVER OF RESPONDENT'S BRIEF, CONCLUSION PAGE AND ENVELOPE APPENDIX B B-1 SENECA COUNTY LOCAL NO. 5 II TABLE OF AUTHORITIES Cases Bullcoming v. New Mexico, U.S. , 131 S.Ct. 2705, 2709-2710 [2011] 17 Crawford v. Washington, 541 U. S. 36, 38 [2004] 10 Green v. Demarco, 11 Misc.3d 451, 465 [Monroe Co. Sup. Ct., 2005] 13 In the Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 436 [1997] 4 In the Matter of Schumer v. Holtzman, 60 N. Y. 2d 46 [1983] 3 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 [2009] 16 People v. Adilovic, 34 Misc.3d 159A [App. Term 2d Dept., 2012] 12 People v. Al-Kanani, 26 N.Y.2d 473,478 [1970] 8 People v. Ashwal, 39 N.Y.2d 105, 109-110 [1976] .20 People v. Benson, 34 Misc. 3d 1226A [Nassau Dist. Ct., 2011] 12 People v. Brooks, 21 Misc.3d 1132A [Bronx Co. Sup. Ct., 2008] 12 People v. Brown, 13 N.Y.3d 332 [2009] 13,15 People v. Carreira, 27 Misc.3d 293, 298-300 [Watertown City Ct., 2010] .. 13,14,17 People v. Crimmins, 36 N.Y.2d 230, 237-238 [1975] 23 People v. Damato, 79 A.D.3d 1060, 1061 [2 nd Dept., 2010] 12 People v. DiBari, 26 Misc. 3d 1222A [North Castle Just. Ct., 2010] 12 People v. Fischer, 9 Misc.3d 1121 (A) [Rochester City Ct., 2005] 13 People v. Fisher, 18 N.Y.3d 964 [2012] 10,18 People v. Harvey, 26 Misc.3d 1218A [Niagara Co. Sup. Ct., 2010] 12 People v. Hulbert, 93 A.D.3d 953, 954 [3 rd Dept., 2012] 12 People v. Ingle, 36 N. Y. 2d 413, 420 [1975] 6 Peoplev. Kanhai, 8 Misc.3d447, 453 [Crim. Ct., Queens Co., 2005] 13 People v. Krueger, 9 Misc.3d 950, 956 [Lockport Just. Ct., 2005] 13 Peoplev. Lebrecht, 13 Misc.3d45, 47 [App. Term2dDept., 2006] .13 People v. Lent, 29 Misc.3d 14 [App. Term 2d Dept., 2010] 12 People v. Marshall, 30 Misc. 3d 145A [App. Term 2d Dept., 2010] 12 People v. Mertz, 68 N. Y. 2d 136, 148 [1986] 12, 14 People v. Pealer, 89 A.D.3d 1504, 1506-1507 [2011] 2, 11 People v. Robinson, 97 N. Y. 2d 341 [2001] 6, 7 People v. Schwartzman, 24 N.Y.2d 241, 245-246 [1969] .21 People v. Scott, 86 N.Y.2d 864 [1995] 9 People v. Stevenson, 21 Misc. 3d 128A [App. Term 1st Dept., 2008] 13 People v. Wright, 98 N.Y.2d 657 [2002] 6,7 United States v. Gorder, 726 F. Supp2d 1307, 1314 (D. Utah, 2010) 13 Williams v. Illinois, U.S. ,132 S.Ct. 2221 [2012] 15,16 Statutes §10 NYCRR 59.4 [c] 12 §10 NYCRR 59.5 [d] 12 §9 NYCRR 6031.2 [a] 12 County Law §700 [8] .4, 5 County Law §701 [1] [a] 3,4,5 Criminal Procedure Law §240. 20 [1] [k] .12 Criminal Procedure Law §470. 05 [2] 2 Criminal Procedure Law §470. 35 2 Title 15 N.Y.C.R.R. §174.1 7 Vehicle and Traffic Law §1192 11 Vehicle and Traffic Law §375 [1] [b] [i] 6, 7 iii STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Responden t, against ROBERT B. PEALER, Defendant/Appellant. Yates County Indictment No. 08-78 Appellate Division Docket No. KA-II-OI024 THE DEFENDANT/APPELLANT'S REPLY BRIEF PRELIMINARY STATEMENT This Brief is submitted in response to the People's Brief, which was received, by counsel, on August 30, 2012. POINT I THE DISTRICT ATTORNEY OF SENECA COUNTY WAS NOT AUTHORIZED TO PREPARE, FILE AND SERVE THE PEOPLE'S BRIEF IN THE APPELLATE DIVISION. The People claim (see The People's Brief, p. 66) that this issue is unpreserved, improperly raised before this Court, legally flawed, and harmful to the promotion of justice. As the People state (see The People's Brief, p. 67), this issue was not raised prior to appellant's Reply Brief at the Appellate Division, Fourth Department. The issue was not raised, prior to that time, because it was not known until the Respondent's Brief was actually received by counsel that the Seneca County District Attorney was responding to a Yates County Appeal. Thus, there was a timely protest (Criminal Procedure Law §470.05 [2]). Additionally, since the Appellate Division did not explicitly state whether it reviewed this issue, it cannot be said that they definitively did not review the issue (People v. Pealer, 89 A.D.3d 1504, 1506-1507 [4 th Dept., 2011] ---"We have reviewed defendant's remaining contentions and conclude that they are either unpreserved for our review or without merit"). Therefore, this issue is preserved for review (Criminal Procedure Law §470.35) . The People assert (see The People's Brief, p. 68) that this issue has nothing to do with the proceedings below, and thus 2 could not have prejudiced appellant. The failure of the District AttorneYI however I to fulfill his duty as District Attorney affects every individual in his County. Moreover I the People IS reliance (see The People's Brief l p. 68) on In the Matter of Schumer v. Holtzman (60 N.Y.2d 46 [1983]) is misplaced because the issue is not about removal of a public prosecutor I but the failure of the District Attorneys of Yates and Seneca Counties to conduct the instant appellate process in a proper manner. Despite never being made I the People impute upon defendant (see The People's Brief l p. 68 1 n.14) a claim that a special prosecutor was necessary. The People (see The People's Brief l p. 68 1 n.14) assert that there was no need for the appointment of a special prosecutor pursuant to County Law §701 [1] [a] because the Yates County District Attorney was "merely assisted by the Seneca County District Attorney/l (see The People's Brief l p. 68). The claim that the Yates County District Attorney was "merely assisted/l by the Seneca County District Attorney (see The People's Brief l p. 68) is incredulous. The Respondent/s Brief I in the Appellate Division l was prepared by I signed by I and mailed by the Seneca County District Attorney, and not the Yates County District Attorney (see Cover of Respondent/s Brief l Conclusion Pagel and Envelope I Appendix AI p. A-1-3). It is not appellant I s contention that District Attorneys should not be able to aid each other I but that when such aid 3 occurs that it does not violate their jurisdictional limitations, is done in a transparent process that is fair to all parties, and is known to the community as a whole (County Law §701 [1 ] [a] ) . Such a process is, for example, the appointment of a Special Prosecutor (County Law §701 [1] [a]; In the Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 436 [1997]--- Assistant Attorney General appointed as an Assistant District Attorney to work under the direction of that District Attorney) . It must be stressed that the People's catalog (see The People's Brief, p. 68) of prosecutions in which appellate counsel herein acted of counsel to former Seneca County District Attorney were pursuant to an "of counsel" contract with Seneca County. The People's further description of this issue as "little more than a venting" constitutes a personal attack on counsel, and is inappropriate, especially in the Court of Appeals. The People are correct (see The People's Brief, p. 71) that the population of Seneca County, according to the 2010 census is below 40,000. However, they are totally incorrect (see The People's Brief, p. 71) as to the effect of that population figure. By Local Law No. 5 of the year 2000, the Seneca County Board of Supervisors expanded the office of the District Attorney to a full time position in accordance with County Law §700 [8] (see Seneca County Local No.5, Appendix B, pp. B-1-4). 4 The District Attorney of Seneca County writing the Respondent's Brief in the Appellate Division, which entailed reviewing over 750 pages of a Yates County Record on Appeal and responding to eight legal issues was certainly an undertaking which interfered with the performance of his full-time duties as Seneca County District Attorney (la-212a, 1-543). It also should be noted that, despite the People's claim (The People's Brief, p. 71) that the Seneca County District Attorney's actions were completely appropriate, the Seneca County District Attorney did not prepare, file, and serve the instant Respondent's Brief. As such, it is respectfully submitted that the District Attorneys of Seneca and Yates County failed to conduct the instant appeal in the Appellate Division in a manner that fostered faith in the justice system, and this Court should fashion an appropriate remedy (County Law §§700 [8], 701 [1] [aJ ) . 5 POINT II THE POLICE STOP OF APPELLANT'S VEHICLE WAS IMPROPER. The People claim (see The People's Brief, p. 21) that Officer Crandall (PHW No. 1) properly stopped appellant's vehicle due to an unauthorized sticker, and thus there was no illegal seizure, even if Crandall's primary motivation was to conduct another investigation (People v. Robinson, 97 N.Y.2d 341 [2001] ) . The People further state (see The People's Brief, p. 24), UDefendant's argument, to ignore the laws of this State, must be rej ected." Each and every day, however, this is precisely what police officers do with the innumerable vehicles that are adorned with college stickers like the one on appellant's back window. Vehicle and Traffic Law §375 [1] [b] [i] is so rarely enforced, and so commonly violated, on the roads of New York, that giving credence to the trial court's ruling, in this case, eviscerates the requirement that there be some reasonable basis for a police stop, and provides the police license to conduct pretextual traffic stops based on little more that uwhim, caprice, or idle curiosity" (People v. Ingle, 36 N.Y.2d 413, 420 [1975] ) . The People assert that the facts presented are Unearly identical" to People v. Wright (98 N.Y.2d 657 [2002]). Wright 6 (98 N.Y.2d 657), however is easily distinguishable because it deal t with a faulty muffler. A faulty muffler routinely causes an officer to stop a driver because having such an equipment malfunction is dangerous, environmentally unsafe, and noisy, while people are not routinely stopped for adhering college stickers to the back of their window, especially like the one in the instant case (see DE #A, B, C) It is respectfully submitted that the instant case presents an unfortunate loophole that permits the police to stop vehicles because they have transparent college stickers on the back window of their vehicle's which does not interfere with visibility in any way---which is the sole reason for their prohibition (Title 15 N.Y.C.R.R. §174.1). Therefore, this stop, where the essence of Vehicle and Traffic Law §375 [1] [b] [i] was not violated, was improper, and as such the evidence gained as a result of the stop should be suppressed (111a-113a, 129a- 134a, 198a-200a) (see Robinson, 97 N. Y. 2d at 348-349; cf. Wright, 98 N.Y.2d at 658-659). 7 POINT III APPELLANT WAS PREJUDICED BY DEPUTY LERCH'S TESTIMONY THAT HE REQUESTED TO SPEAK TO AN ATTORNEY PRIOR TO SUBMITTING TO A BREATH TEST. The People claim (see The People's Brief, p. 49) that this issue is unpreserved, and that appellant was not prejudiced by the admission of evidence that he requested to speak to an attorney prior to submitting to a breath test, and through the admission of the operational checklist completed by Officer Lerch (PW No.1) which also noted that appellant spoke to an attorney (see The People's Briefr p. 49) The elicitation of such evidence by the prosecutor could have had only one goal- - -to lead the jury into inferring that appellant had a consciousness of guilt (280-281 r 497-498) As such r the evidence was inadmissible (People v. Al-Kanani, 26 N.Y.2d473, 478 [1970]). The People maintain (see The People's Brief r pp. 50-51) that since the right to consult with an attorney in deciding to submit to a sobriety test is only a qualified right to counselr not a constitutional one r appellant cannot rely on cases like Al-Kanani (26 N. Y. 2d at 478) where this Court found it was reversible error to allow a police officer rover obj ection and without limiting instruction r to testify that the defendant r on being questioned about the charged crime r asserted his constitutional right to the assistance of counsel. 8 The nature of the protection is the same, as even though appellant's right to counsel was qualified, the admission of such evidence after the Huntley Hearing still prejudiced him before the jury (280, 497-498). The timing of the Miranda warning also does not change the prejudice (153a-155a, 280) (see The People's Brief, p. 53). Appellant's request for counsel prior to choosing whether to take the sobriety test was clear, and he was able to speak with counsel in a timely fashion, and thus the prosecutor could have elicited the fact that, after contemplation appellant took the sobriety test, without revealing the prejudicial information that appellant did so only after speaking to an attorney (280-281) Accordingly, the Appellate Division, Fourth Department's holding---that this issue had no merit---was not supported by the evidence in the Record, and thus appellant was denied a fair trial (cf., People v. Scott, 86 N.Y.2d 864 [1995]). It should be noted that in regard to preservation, defense counsel failed to object to the introduction of appellant's statements to Lerch during trial (281), but did make such an objection at the Huntley Hearing (202a). Therefore, it is respectfully submitted that the question of law has been sufficiently preserved, and if this Court finds that it has not, then the failure to object by defense counsel deprived appellant 9 of the right to effective assistance of counsel (202a) (see People v. Fisher, 18 N.Y.3d 964 [2012]). POINT IV APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE TRIAL COURT ADMITTED CERTIFIED DOCUMENTS INTO EVIDENCE UNDER THE BUSINESS RECORD EXCEPTION OT THE HEARSAY RULE. The People claim (see The People's Brief, p. 29) that the simulator solution record and calibration/maintenance records of the breathalyzer (PE #6-8) were admissible under the business records exception to the Hearsay rule. The People assert that the documents (PE #6-8) are non-testimonial, and that their admission is consistent with Crawford v. Washington (541 U. 8. 36, 38 [2004]) and its progeny (see The People's Brief, p. 29). However, because appellant's right to confront witnesses against him was denied, the documents (PE #6-8) should not have been admitted into evidence (Crawford, 541 U.8. at 38) . The People assert (see The People's Brief, p. 30) that the testimony of Officer Lerch (PW No. 4/PRW No.1) sufficiently affirmed that regular testing was done on the breatha1yzer to ensure that it was working properly (282). They also rely (see The People's Brief, p. 30) on her testimony that the breathalyzer is calibrated by the Department of Criminal Justice, in Albany, every six months (293). 10 Upon objection, and argument, by the parties, to the admission of the simulator solution testing document (PE #6) and the calibration/maintenance documents for the breathalyzer (PE #7-8), the trial court held that such testing was "routine", and that the documents were not created at official request to gather evidence as to a particular individual; did not result in structured police questioning; and did not constitute a direct accusation of an essential element of any offense (291-292). Similarly, on appeal, the Appellate Division, Fourth Department held that the documents (PE #6-8) were not accusatory as they do not establish an element of the crimes, and shed no light on a particular defendant's guilt or innocence (486-493) (People v. Pealer, 89 A.D.3d 1504, 1504-1505 [4 th Dept., 2011]). It is respectfully submitted, however, that the breathalyzer documents (PE #6-8) were accusatory. Appellant was arrested for DRIVING WHILE INTOXICATED (122a, 216, 225). He was transported to the Yates County Public Safety Building for the purpose of testing by a DMT Data Master to quantify his breath alcohol level in order to charge him with an additional violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law §1192) (125a, 149a, 220, 300-302) Appellant would not be "unarrested" if he passed the breath test, and therefore, the only purpose of the breath test was accusatory, regarding 11 not only appellant, but every arrestee blowing into the machine (125a, 149a, 220, 300-302). It is not in dispute that a breathalyzer is a scientifically reliable instrument in determining an individual's alcohol content (People v. Mertz, 68 N. Y. 2d 136, 148 [1986]). The key question for an individual facing a breath test result over the legal limit is whether the simulator solution and the calibration and maintenance of the breathalyzer were proper. Therefore, despite the requirement that such instruments are calibrated (§§10 NYCRR 59.4 [c] and 59.5 [d] i §9 NYCRR 6031.2 [ali Criminal Procedure Law §240.20 [1] [k]), it does not mean that they are less accusatory. The People also rely (see The People's Brief, pp. 39-44) on a series of cases that have found that breathalyzer documents are admissible as business records and are non-testimonial (see People v. Hulbert, 93 A.D.3d 953, 954 [3 rd D tep ., 2012] i People v. Damato, 79 A.D.3d 1060, 1061 [2nd D tep ., 2010] i People v. Benson, 34 Misc. 3d 1226A [Nassau Dist. Ct., 2011] i People v. Adilovic, 34 Misc.3d 159A [App. Term 2d Dept., 2012] i People v. Marshall, 30 Misc.3d 145A [App. Term 2d Dept., 2010] People v. Lent, 29 Misc.3d 14 [App. Term 2d Dept. , 2010] i People v. DiBari, 26 Misc.3d 1222A [North Castle Just. Ct. , 2010] i People v. Harvey, 26 Misc.3d 1218A [Niagara Co. Sup. Ct. , 2010] i People v. Brooks, 21 Misc.3d 1132A [Bronx Co. Sup. Ct. , 2008] i People 12 v. Stevenson, 21 Misc.3d 128A [App. Term 1st Dept., 2008]; People v. Lebrecht, 13 Misc.3d 45, 47 [App. Term 2d Dept., 2006]; Green v. Demarco, 11 Misc.3d 451, 465 [Monroe Co. Sup. Ct., 2005]; People v. Fischer, 9 Misc. 3d 1121 (A) [Rochester City Ct., 2005]; People v. Krueger, 9 Misc.3d 950, 956 [Lockport Just. Ct., 2005]; People v. Kanhai, 8 Misc.3d 447, 453 [Crim. Ct., Queens Co., 2005]). The proper interpretation of whether such documents (PE #6- 8) should be viewed as accusatory in nature, however, is 298-300(27 Misc.3d 293,Carreiraexpressed in People v. -=-=~'-=--=------'----'_""::""':'_---'---- [Watertown City Ct., 2010]) The court in Carreira (27 Misc.3d at 298) held that though the calibration is not done with a specific arrestee in mind, the purpose of the testing is to guarantee the accuracy of the breathalyzer machine for use in litigation against the arrestee blowing into the breathalyzer machine. Confrontation, therefore, is necessary because it ensures that law enforcement is honest in conducting the required testing, and not fabricating the records to assure more convictions (see United States v. Gorder, 726 F. Supp2d 1307, 1314 (D. Utah, 2010)---holding "Intoxilyzer 8000 Operation Checklist" testimonial). Contrary to the People's claim (see The People's Brief, p. 42), the factors discussed in People v. Brown (13 N. Y. 3d 332 [2009]) are not inconsistent with finding that the documents (PE 13 #6 - 9) herein are testimonial in nature. Initially, while the People seem to imply (see The People's Brief, p. 42) that there are only four factors that this Court views when making a determination regarding whether a document is testimonial; that is obviously not the case (Brown 13 N. Y. 3d at 339). Prior to discussing the four factors referred to by the People (see The People's Brief, p. 42), this Court indicated that if a document is intended for litigation then that speaks toward it being testimonial. Here, the documents (PE #6-8) are intended for litigation, not against a particular person, but against any arrested intoxicated driver, and without them the test results against an arrested intoxicated driver would have little significance (486-493) (Mertz, 68 N.Y.2d at 148; Carreira, 27 Misc.3d at 298) In regard to the four factors actually discussed by the People (see The People's Brief, p. 42) in determining whether a document is testimonial: (1) whether the agency that produced the record is independent of law enforcement---here, the answer is a resounding no, the State Police and Division of Criminal Justice Services calibrate the instruments and test the simulator solutions (486-493); (2) whether the document reflects whether the report is biased objective facts at acknowledged that they the do; time (3 ) of their recording---it is in favor of law enforcement- - -as discussed above, law enforcement 14 calibrates and tests the instruments, only for their use creating potential bias; (4) whether the report accuses the defendant by linking him to the crime---the report did not specifically accuse appellant, but reflects an output of data to be used against every arrestee blowing into the machine. As such, when viewing a balance of the factors discussed in Brown (13 N.Y.3d at 339), the documents (PE #6-8) are accusatory. The People fault (see The People's Brief, p. 46) appellant for failing to discuss Williams v. Illinois ( U.S. , 132 S.Ct. 2221 [2012]). However, the decision in Williams (132 S.Ct. at 2221) was released on June 18, 2012, which was four days after Appellant's Brief was filed and served (see Appellant's Brief, p. 66). As the People indicate (see The People's Brief, p. 36), the Supreme Court was split 4-1-4, with a four justice plurality opinion, a concurring in the result opinion by Justice Thomas, and a four justice dissent. In Williams (131 S.Ct. at 2221), an expert testified whether a DNA profile, produced by an outside lab, matched a profile produced by the state police lab using a sample of defendant's blood. The plurality found the testimony of the expert did not violate the Confrontation Clause because it was not offered for its truth, and because the Report was made prior to any suspect being identified it was not created for the purpose of obtaining evidence against the defendant (Williams 15 131 S.Ct. at 2228). The dissent claimed that such evidence was testimonial, and that the use of the lab's Report by an expert, without the person who actually prepared the Report, was impermissible because the expert's conclusions were bound to the Report, and those conclusions, based on the Report, came into evidence without any opportunity to cross-examine the person who made it (Williams 131 S.Ct. at 2269-2270). Though joining the plurality, Justice Thomas, in his concurrence, provided the most straightforward and easy way to enforce the rule regarding Confrontation Clause issues by stating if a document was introduced for the truth of the matter, "formality and solemnity" then it and had the requisite would be considered testimonial for purposes of the Confrontation Clause (Williams 132 S.Ct. at 2255-2256) . Upon utilizing such a test, in the case at bar, it is clear that the documents (PE #6-8) are plainly Affidavits which were written and sworn to by the declarant in order to prove the truth of the matter (486-493) (Williams, 132 S.Ct. at 2255- 2256). The documents (PE #6-8) were functionally equivalent to live, in court testimony, and do "precisely what a witness does on direct examination" (293 - 295, 486 -4 93) (Williams, 132 S. Ct. at 2255-2256; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 [2009]). 16 It is respectfully submitted that the interpretation of what is testimonial evidence is expanding (see Bullcoming v. New Mexico, u.s. 131 S. Ct. 2705, 2709-2710 [2011] - - -the accused has the right to be confronted by the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular analyst). Without confrontation, with the actual individuals who calibrated and maintained these machines, there is nothing to guarantee that law enforcement remains honest in actually conducting the required testing and not fabricating the records to assure more convictions (Carreira, 27 Misc.3d at 297). Therefore, the decision of the Appellate Division, Fourth Department should be reversed, and the trial court's admittance of the documents (PE #6 - 8) into evidence reversed, and a new trial ordered. POINT V APPELLANT WAS DENIED DUE PROCESS OF LAW DUE TO PROSECUTORIAL MISCONDUCT. The People claim that appellant's claims are unpreserved, without merit, and harmless (see The People's Brief, p. 58). While, as discussed below, some of the instances of misconduct were not preserved, the failure of defense counsel to object to defense counsel's improper conduct deprived appellant of a fair trial as his right to effective assistance of counsel was 17 denied, and is thus reviewable by this Court (see People v. Fisher, 18 N.Y.3d 964 [2012]). The People assert that the prosecutor did not commit misconduct by revealing that appellant invoked his right to counsel in regard to speaking with an attorney (see The People's Brief, p. 59). As previously discussed (see POINT III, supra), whether the right was constitutional or qualified, the elici tation of such evidence was unnecessary, and unduly prejudicial to appellant (280, 497-498). In her closing argument, the prosecutor made a "safe streets" argument explicitly stating that part of Officer Crandall's (PW No.1) job was "keeping our streets safe," and further implied that appellant was a dangerous person making the streets unsafe for everyday citizens (405-406). Later, the prosecutor "testified" her belief that a .15% breath test result meant that appellant drank more than the two beers (407). Nothing in the Record supported her statement, since as at no point did she present evidence indicating how much alcohol was in a single beer, or how that would translate into the blood alcohol content of appellant (407). The prosecutor was not through testifying, as she told the jury that the Halls cough drop was not an interfering substance despite any testimony from Officer Lerch (PW No. 4/PRW No.1) to support her statement (408). While the trial court provided a 18 limiting instruction, it simply was not enough to assuage the prejudice of the prosecutor's claim (408). The prosecutor's attempt to interpret Lerch's testimony in a manner that was not in conformity with Lerch's actual testimony---Lerch never stated what an "inferring substance" was, and whether the machine could ever mistakenly identify one substance as another---was completely prejudicial and possibly affected the outcome of the trial where the jury requested further instruction regarding the cough drop controversy (CE #3, 509-510). The People counter (see The People's Brief, pp. 59-60) that such comments were made in response to defense arguments, and that even if remarks were improper they were not pervasive or egregious enough to deprive appellant of a fair trial (see The People's Brief, pp. 60-62) The People also assert that the trial court provided clear instructions (372-445) to the which would have alleviated any unfair prejudice and evidence was "overwhelming" (see The People's Brief, p. 63). jury the However, prosecutor's it is elicitation respectfully of evidence submitted, regarding that the appellant's invocation of his right to counsel, and the three egregious statements during summation deprived appellant of a fair trial (279, 405-408, 509-510). No amount of instruction by the trial court could have lessened the prejudice, and as such, appellant's right to a fair trial was denied, the judgment of 19 conviction should be reversed, and a new trial ordered (People v. Ashwal, 39 N.Y.2d lOS, 109-110 [1976]). POINT VI THE TRIAL COURT ERRED IN ALLOWING IMPROPER AND PREJUDICIAL REBUTTAL TESTIMONY. The People claim that the rebuttal testimony of Officer Lerch (PW No. 4/PRW No.1) was properly admitted because it countered appellant's assertion that Lerch did not look into his mouth before administering the breath test, and that he had a cough drop in his mouth at the time of the test (349-350) (see The People's Brief, p. 54). The People further asserted that Lerch's testimony did not establish an element of its case-in- chief, but responded to appellant's fact specific testimony that he had an obj ect in his mouth during the test (see The People Brief, p. 56) The People, however, overlook (see The People's Brief, pp. 54-57) that during their case-in-chief Lerch testified in detail as to how she conducted the breath test of appellant (280-281, 300, 303-305, 308-309). Her testimony indicated that she asked appellant to empty his mouth, and that she watched him to ensure that he did not put any objects in his mouth (280-281, 300, 305, 308-309). Appellant testified that he had a Halls metho-lyptus cough drop in his mouth at the time that he blew into the 20 machine, and that the drops smelled somewhat like alcohol (350- 351, 358). Under such circumstances, allowing Lerch to reiterate her prior testimony, and adding a portion about looking into appellant's mouth, merely bolstered the prosecution's case (369). The People had the opportunity to ask a more searching question as to the contents of appellant's mouth at the time of the breath test, and should not have been allowed further questioning following the defense case (280-281, 300, 305, 308- 309, 497-498) (People v. Schwartzman, 24 N.Y.2d 241, 245-246 [1969] ) . Moreover, such testimony was not harmless since the jury was clearly concerned about whether appellant had a cough drop in his mouth (509-510). The jury specifically inquired during its deliberations as to the impact a cough drop could have on the validity of the breath test, and thus that aspect of the instant case was important to their determination (see C.E. #3; 509-510) . As such, it is respectfully submitted that the judgment of conviction should be reversed, and a new trial ordered (509-510) (Schwartzman, 24 N.Y.2d at 245-246). 21 POINT VII APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED. The People briefly respond to this issue by indicating that they rely on their prior arguments in regard to this issue (see The People's Brief, pp. 64-65) . The aggregate of errors involved in the instant trial should not be overlooked: appellant was prejudiced by the trial court's error in refusing to suppress all evidence obtained by the police following the stop of appellant's vehicle {POINT II, suprai appellant was prejudiced by references to his desire to speak to an attorney prior to submitting to a breath test (POINT III, supra) i appellant was denied his Constitutional right to confront witnesses against him through the admission of documents (PE ##6-8) pertaining to the accuracy of the breathalyzer machine utilized (see POINT IV, supra) i appellant was prejudiced by three serious instances of prosecutorial misconduct during summation {see POINT V, supra)i and appellant was prejudiced by improper rebuttal testimony (see POINT VI, supra). It is respectfully submitted that all of these issues merit correction action, but if this Court does not consider one or even two of these issues as meriting reversal, the combination of the above errors leads to the conclusion that appellant's right to a fair trial was denied, and thus the 22 matter must be remanded for a new trial (People v. Crimmins, 36 N.Y.2d 230, 237-238 [1975]). CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR IN THE ALTERNATIVE, A NEW TRIAL ORDERED. Respectfully submitted, ~~- .J. & J.A. ClRANDO, ESQS. ~ttorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel Dated: October 1, 2012 23 APPENDIX A alcohol and the privilege of driving a motor vehicle, the court properly imposed the maximum sentence. CONCLUSION: The People respectfully request that the judgment of conviction should be affirmed. Respectfully submitted, .1)0»") ?~d HON. JASON 1. COOK Yates County District Attorney Attorney for Respondent 415 Liberty Street -------------------- --------- ------ ------- ------------------_.--- --- ----- ~ 2_en.11_Yan,_New YorkJ4527_ _ _ _ Tel. 315-536-5550 BARRY 1. PORSCR Of Counsel 48 W. Williams Street Waterloo, New York 13165 Dated: June 20, 2011 A-d-t• 29 APPENDIX B -..OCQl Law r zlzng 1'''''' lVl'~~lru'\;'LI£..J"U'UYu:;.nlV(" .anl.\;.41 STATE STREET. ALBANY. NY 12231 005-239 (Rev. 11199) (Use this fonn to file a local law with the Secretary of State.) Text of law should be given as amended. Do not include matter being eliminated and do not use italics or underlining to indicate new matter. County i~~n of----- S.eneJ;;5i -------------------------.--..--.------------.---.-••-••..••.-- Village Local Law No _._. 2 _ _.___ of the year 2o.QQ-- A local law _._~t"s:.a.tin.g--the.•P_QJliU9..1}_.Q.LP..t~.!=..r.~£.t__At.!=..9.rnf!..Y__t\!JJ:_UID.~_ ••_.__• ._.••• (1-.. rill.) Be it enacted by the ~Q?_!£••qK_.~~p_~!.y_~~.!?X.:cL._._ ...• ._._.. .. . __ of the (H_. ofL.PsI_';". BoJ1) County ~~~n of------ -- __~.Em~_~~. ..-- ..-. -.- ..-. --..---. --- -.------.- ----.- -.----.------.. _0--..-.. as follows: Village Section 1. The position of the District Attorney is hereby expanded to a full-time position in accordance with County Law Section 700, as amended. Section 2. The annual salary of the District Attorney shall be the same as the position of the County Judge, commencing January 1, 2002, in accordance with Section 700 of the County Law, as amended. Section 3. In accordance with Subdivision 8 of the County Law, Section 700, the District Attorney's position will be full-time and said District Attorney shall not engage in the private 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 the duties as District Attorney. Section 4. This local law shall become effective upon filing with the Secretary of State. (If additionnl spnce is needed, attach pages the same size as this sheet, and number each.) (1) (Complete the certlflcation In the paragraph that applies to the filing of this local law and strike out that which Is not applicable.) 1. (Final adoption by local legislative body only.) I hereby certify that the local law annexed hereto, designated as local law No. 5 . of 20_Q9.._ of the (County)(City)(Town)(VilIage) of . s.en.e~a . . . ----- was duly passed by the _Boa1:.cLo.f••S.u.pe.r.1Zi..snr.s __ ._. on .121.12 . 20 --00, in accordance with the applicable provisions of law. (Nam. ofLegislaliv. Bady) 2. (Passage by local legislative body with approval, no disapproval or repassage after disapproval by the Elective Chief Executive Officer·.) I hereby certify that the local law annexed hereto, designated as local law No. -- -.- -.- --- ----- of 20 - of the (O:>Unty)(City)(ToWil)(Village) of ---.. -. ....._. .. .. _~ ... __ . ------.---- was duly passt:d by the . . __ on ----- .__ 20 -.- , and was (approved)(not approved)(repassed after (Nam. of Legislativ. Body) disapproval) by the -------------------.-------------------------.---- and was deemed duly adopted on ------------------ 20---- , (EleClive Cirief Executive OffiC.,·) in accordance with the applicable provisions of law. 3. (Final adoption by referendum.) I hereby certify that the local law annexed hereto, designated as local law No. -- .. ----.- -- - ---.------- of 20 . of the (County)(City)(Town)(Village) of ---.--- . . ---.----.-- was duly passed by the -.-----------------.-.-.-.------------------------- on ---------.-------- 20---. , and was (approved)(not approved)(repassed after (Name ofLegislative Body) disapproval) by the ------..----------.------------.------.-.------.- on----·-------------- 20----. Such local law was submitted (Elective Chiet Execlltiv. OffiC.,·) to the people by reason of a (mandatory)(permissive) referendum, and received the affirmative vote of a majority of the qualified electors voting thereon at the (general)(special)(annual) election held on ---.-----_._------ 20---- • in accordance with the applicable provisions of law. 4. (SUbject to permissive referendum and final adoption because no valid petition was filed requesting referendum.) I hereby certify that the local law annexed hereto, designated as local law No. -.- .. --.--- .. ----.--...----.-----.- of 20.. ---- of the (County)(City)(Town)(Village) of -----------...-.-...-.-.---.------.--.--..--------------_.------- was duly passed by the .-- ---.---.-.----- -.-.--- ..---.-.-----.- on - --..--_.--.. 20---., and was (approved)(not approved)(repassed after (Name of L.gislaliv. Body) disapproval) by the ----------------.-----------..----.-.-----.-----.- on -..----..--------- 20.-- • Such local law was subject to (Elective ChiefExecutive Officer") permissive referendum and no valid petition requesting such referendum was filed as of --_.----_..------- 20---- ,in accordance with the applicable provisions of law. *Elective Chief Executive Officer means or includes the chief executive officer of a county elected on a county- wide basis or, if there be none, the chairperson of the county legislative body, the mayor of a city or village, or the supervisor of a town where such officer Is vested with the power to approve or veto local laws or ordinances. (~ R-;...] 5. (City local law concerning Charter revision proposed by petition.) I hereby certify that the local law annexed hereto, designated as local law No. ----------.-- -.-.---------.-- of 20---.-- of the City of --------------------------------------------- having been submitted to referendum pursuant to the provisions of section (36)(37) of the Municipal Home Rule Law, and having received the affirmative vote of a majority of the qualified electors of such city voting thereon at the (special)(general) election held on---------·-·------- 20----, became operative. 6. (County local law concerning adoption of Charter.) I hereby certify that the local law annexed hereto, designated as local law No...---------.--------.-------------- of 20------ of the County of -.-.. -.. -.--.-- __ _ _. . __ .. _._ State of New York, having been submitted to the electors at the General Election of November ------.--.--. __ ._. 20----, pursuant to subdivisions 5 and 7 of section 33 of the Municipal Home Rule Law, and having received the affirmative vote of a majority of the qualified electors of the cit- ies of said county as a unit and a majority of the qualified electors of the towns of said county considered as a unit voting at said gent!al election, became operative. (If any other authorized form of flnal adoption has been followed, please provide an appropriate certification.) I further certify that I have compared the preceding local law with the original on file in this office and that the same is a correct transcript therefrom and of the whole of such original local law, and was finally adopted in the manner in- dicated in paragraph-----J------, above. -SikaaA ~S~~I (Seal) Date: December 20, 2000 (Certlflcatlon to be executed by County Attorney, Corporation Counsel, Town Attorney, Village Attorney or other authorized attorney of locality.) STATE OF NEW YORK COUNTY OF Seneca I, the undersigned, hereby certify that the foregoing local law contains the correct text and that all proper proceedings have been had or taken for the enactment of the local law an ercto. Seneca County Attorney Title County City of Seneca Town Village Date: December 20, 2000 (3) 8-3 STATE OF NEW YORK DEPARTMENT OF STATE 4 I STATE STREET ALBANY, NY 12231-000 I ALfXANCER F. TREADWELL SECRETARY OJ'" SYATI!: January 11, 2001 SHARON L. SECOR BOARD OF SUPERVISORS 1 DIPRONIO DRIVE WATERLOO, NY 13165 RE: County of Seneca, Local Law 5, 2000, filed 01/02/2001 The above referenced material was received and filed by this office as indicated. Additional local law filing forms will be forwarded upon request. Sincerely, ~f!~' Joseph P. Brozowski Principal Clerk State Records & Law Bureau (518) 474-2755 JAN 16 WWW.DOS.STATE.NY.US • E-MAIL: INFO@DOS.STATE.NY.US