The People, Respondent,v.Robert Pealer, Appellant.BriefN.Y.January 3, 2013 To be argued by: Estimated time: John A. Cirando, Esq. 15 minutes Syracuse, New York STATE OF NEW YORK COURT OF APPEALS ________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against ROBERT B. PEALER, Defendant/Appellant. __________________________ Yates County Indictment No. 08-78 Appellate Division Docket No. KA-11-01024 __________________________ ____________________________________________________________________________________________________ THE DEFENDANT/APPELLANT’S REPLY BRIEF TO THE DISTRICT ATTORNEY’S ASSOCIATION OF THE STATE OF NEW YORK AMICUS CURIAE BRIEF D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel i TABLE OF CONTENTS PRELIMINARY STATEMENT...........................................1 POINT I.........................................................2 APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE TRIAL COURT ADMITTED CERTIFIED DOCUMENTS INTO EVIDENCE UNDER THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE. POINT II........................................................7 THE DISTRICT ATTORNEY OF SENECA COUNTY WAS NOT AUTHORIZED TO PREPARE, FILE AND SERVE THE PEOPLE’S BRIEF IN THE APPELLATE DIVISION. CONCLUSION.....................................................11 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-1 STATE OF NEW YORK, COURT OF APPEALS ORDER, DECIDED AND ENTERED DECEMBER 11, 2012 ii TABLE OF AUTHORITIES Cases Bullcoming v. New Mexico, __U.S.__, 131 S.Ct. 2705 [2011] ............................................... 2 In the Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 436 [1997] ............................... 8 In the Matter of Schumer v. Holtzman, 60 N.Y.2d 46 [1983] ............................................... 8 Melendez-Diaz v. Massachusetts (557 U.S. 305 [2009].............................................................. 2 People v. Brown, 13 N.Y.3d 332 [2009] ........................................................................................... 5, 6 People v. Carreira, 27 Misc.3d 293, 298-300 [Watertown City Ct., 2010] ............ 4, 6 People v. Pealer, 89 A.D.3d 1504, 1506-1507 [2011] ................................................................ 7 People v. Sanducci, 195 N.Y. 361, 368-369 [1909] ..................................................................... 9 United States v. Gorder, 726 F.Supp2d 1307, 1314 (D. Utah, 2010) ............................... 4 Statutes 10 N.Y.C.R.R. §59.4 .......................................................................................................................................... 3 10 N.Y.C.R.R. 59.4 [c] ................................................................................................................................... 3 County Law §700 [1] .......................................................................................................................................... 9 County Law §701 ................................................................................................................................................... 9 County Law §703 ................................................................................................................................................... 9 Vehicle and Traffic Law §1192 .................................................................................................................. 3 STATE OF NEW YORK COURT OF APPEALS ________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against ROBERT B. PEALER, Defendant/Appellant. __________________________ Yates County Indictment No. 08-78 Appellate Division Docket No. KA-11-01024 __________________________ THE DEFENDANT/APPELLANT’S REPLY BRIEF TO THE DISTRICT ATTORNEY’S ASSOCIATION OF THE STATE OF NEW YORK AMICUS CURIAE BRIEF PRELIMINARY STATEMENT This Brief is submitted in response to the Amicus Curiae Brief of the District Attorney’s Association of the State of New York. This Court allowed the District Attorney’s Association of the State of New York amicus curiae relief in this appeal, on December 11, 2012 (see Order, entered December 11, 2012, Appendix A, p. A-1). 2 POINT I APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE TRIAL COURT ADMITTED CERTIFIED DOCUMENTS INTO EVIDENCE UNDER THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE. The District Attorneys Association of the State of New York (“DAASNY”) claims (see The Amicus Curiae Brief, p. 10) that the information (PE #6-8) provided by the DataMaster machine was not testimonial, and that the documents (PE #6-8) were properly admitted as evidence. DAASNY asserts (see The Amicus Curiae Brief, p. 19) that Bullcoming v. New Mexico (__U.S.__, 131 S.Ct. 2705 [2011]) and Melendez-Diaz v. Massachusetts (557 U.S. 305 [2009]) stand for the rule that where the primary purpose of the out-of-court’s statement is purely evidentiary, then the statement is testimonial and its admission, in the absence of the declarant, violates the Sixth Amendment. DAASNY further asserts (see The Amicus Curiae Brief, p. 19) that when applying the primary purpose test to the records at issue (PE #6-8) they were not testimonial. However, because appellant’s right to confront witnesses against him was denied, the documents (PE #6-8) should not have been admitted into evidence (Bullcoming, 131 S.Ct. at 2717; Melendez-Diaz, 557 U.S. at 320-321). In support of their assertion that the primary purpose is not testimonial, DAASNY states (see The Amicus Curiae Brief, pp. 3 19-20) that the documents (PE #6-8) do not prove a trial fact. The breathalyzer documents (PE #6-8), however, were accusatory and did attempt to prove a “trial fact”. Appellant was arrested for DRIVING WHILE ABILITY IMPAIRED and FELONY DRIVING WHILE INTOXICATED PER SE (122a, 216, 225). He was transported to the Yates County Public Safety Building for the purpose of testing by a DMT DataMaster 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 not only appellant, but every arrestee blowing into such a machine (125a, 149a, 220, 300-302). DAASNY also stresses (see The Amicus Curiae Brief, p. 21) that the documents (PE #6-8) were not completed in anticipation of a criminal case, but are calibrated as a duty of the police department and in accordance with state regulations (see 10 N.Y.C.R.R. 59.4 [c]). The requirement, however, that a DMT DataMaster be calibrated in accordance with state regulations does not make it any less accusatory (see 10 N.Y.C.R.R. §59.4). 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, and 4 thus all such calibrations are done with an eye toward proving that fact at some Hearing or trial in the future. DAASNY focuses (see The Amicus Curiae Brief, pp. 21-22) on the lack of temporal and substantive connection with an arrestee, pointing to the fact that the date of calibration is not near the time of the arrest, and that the documents (PE #6- 8) fail to mention appellant, or any other defendant. However, as discussed in People v. Carreira (27 Misc.3d 293, 298-300 [Watertown City Ct., 2010]), though 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. Without such information (PE #6-8) the test result of an arrested intoxicated driver would have little significance (486-493). Confrontation, therefore, is necessary since 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). DAASNY further claims (see The Amicus Curiae Brief, pp. 22- 23) that the form and content of the documents (PE #6-8) spoke to their non-testimonial nature as they did not indicate how the simulator test was conducted, or explained what the results 5 meant. Contrary to DAASNY’s claim (see The Amicus Curiae Brief, pp. 22-23) the documents (PE #6-8) are intended for litigation, not against a particular person, but against every arrested intoxicated driver, and without them the test results against every arrested intoxicated driver would have little significance (486-493). The documents contain a signed certification of the Director of the Laboratory (PE #6, 486-487); a signed certification that the DataMaster was inspected, that the simulator solutions were correctly identified by the machine (PE #7, 488-490); and a sworn statement certifying that such inspection/ maintenance/calibration tests were conducted on the subject DataMaster (PE #8, 491-493). Such statements would be expected to be used in a criminal trial, and are, in fact, used in a criminal trial as a substitute for live testimony (486- 493). Moreover, contrary to DAASNY’s assertions (see The Amicus Curiae Brief, pp. 26-27) the factors discussed in People v. Brown (13 N.Y.3d 332 [2009]) are consistent with finding that the documents (PE #6-9) herein are testimonial in nature. While DAASNY does not explicitly discuss the four factors relied upon by this Court in Brown (13 N.Y.3d at 339) it should be noted that in regard to: (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 6 Services calibrate the instruments and test the simulator solutions (486-493); (2) whether the document reflects objective facts at the time of their recording---it is acknowledged that they do; (3) whether the report is biased in favor of law enforcement---as discussed above, law enforcement 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 appellant and 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. It is respectfully submitted that 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 convictions1 (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. 1 1 The lab scandals in Massachusetts---Bret Silverberg, Officials Waited to Investigate Drug Lab, JAMAICA PLAIN, December 12, 2012 at http://jamaicaplain.patch.com/articles/officials-waited-to-investigate-drug-lab; and Nassau County---Ken Lovett, IG Finds Big Problems at Nassau County Crime Lab, NEW YORK DAILY NEWS at http://www.nydailynews.com/blogs/dailypolitics/2011/11/ig-finds-big-problems-at-nassau-county-crime-lab among other places demonstrate that laboratories and testing facilities are not infallible. 7 POINT II THE DISTRICT ATTORNEY OF SENECA COUNTY WAS NOT AUTHORIZED TO PREPARE, FILE AND SERVE THE PEOPLE’S BRIEF IN THE APPELLATE DIVISION. DAASNY claims (see The Amicus Curiae Brief, p. 28) that Barry Porsch, District Attorney of Seneca County, properly appeared “of counsel” in connection with the appeal to the Appellate Division, Fourth Department. DAASNY notes (see The Amicus Curiae Brief, p. 29) that the Appellate Division, Fourth Department rejected this claim without comment. It can be equally interpreted, however, that the Appellate Division, Fourth Department did not definitively review this merits of the issue (People v. Pealer, 89 A.D.3d 1504, 1506-1507 [4th Dept., 2011]---“We have reviewed defendant’s remaining contentions and conclude that they are either unpreserved for our review or without merit”). DAASNY (see The Amicus Curiae Brief, pp. 29-30) stresses that the County Law does not bar the arrangement in the case at bar---wherein the District Attorney of Seneca County appeared “of counsel” to the District Attorney of Yates County and prepared, filed, and served the Yates County District Attorney’s Brief---noting that such an arrangement assists smaller counties in defending against all challenges to judgments of conviction, and insures that the issues presented in a Brief are addressed concisely and correctly as an aid to the appellate court. 8 It must be reiterated that it is not appellant’s contention that District Attorneys should not be able to help each other, but that when such aid occurs it must not violate jurisdictional limitations, and must be 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]--- an Assistant Attorney General appointed as an Assistant District Attorney to work under the direction of that District Attorney). No such process occurred in the case at bar. The process by which District Attorney Porsch acted “of counsel” to the Yates County District Attorney’s Office was unclear, and a surprise to appellate counsel upon receipt of the District Attorney’s Brief. District Attorney Porsch was not the individual who signed the Stipulation to the Record on Appeal, and at no point prior to the receipt of the District Attorney’s Brief was appellate counsel notified of the arrangement (535) Moreover, DAASNY’s reliance (see The Amicus Curiae Brief, p. 32) on the Record 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, but the failure of the District Attorneys of Yates and Seneca Counties to conduct the instant appellate process in a transparent and orderly manner. 9 DAASNY also posits that 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” (see The Amicus Curiae Brief, p. 33). Initially, it was unclear what the financial arrangement between the parties was as no Order approving Special Prosecutor status, or some other permissible delegation was provided by the respective District Attorneys’ Offices (County Law §§700 [1], 701, 703). Additionally, it is easy to envision how the District Attorney of Seneca County writing the District Attorney’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 (1a-212a, 1-543). DAASNY also faults (see The Amicus Curiae Brief, p. 33) appellate counsel for failing to identify a proper remedy for the alleged impropriety (People v. Sanducci, 195 N.Y. 361, 368- 369 [1909]---this Court expressed disapproval of using a County Judge who had approved the Order of his Assignment to the case, but stated that defendant had no legal right to complain of the conduct). It is respectfully submitted, that the expression of disapproval by this Court, as in Sanducci (195 N.Y. at 368-369) is a potential remedy for the instant conduct. This Court 10 previously found that it was its “duty” to express disapproval of the arrangement in Sanducci (195 N.Y. at 368-369), similarly, this Court should once again express such disapproval where 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 (County Law §§700 [8], 701 [1] [a]). 11 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR IN THE ALTERNATIVE, A NEW TRIAL ORDERED. Respectfully submitted, D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel Dated: December 27, 2012