The People, Appellant,v.Carlos Palencia, Respondent.BriefN.Y.June 21, 2016ORIGINAL RUSSELL John P. Asiello Chief Clerk and Legal Counsel New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 April29, 2016 Re: People v. Carlos Palencia APL-2015-00330 Dear Mr. Asiello: il I !1 r ~ ~"'~'~'}!'i*1~~~~~:~·~ .. ~1·· ;I ,,.,,.,...,.,...,,.....,..,.,'"''""~""·"'-..... ._,.,,..;.-"" ......................... ...-.."f~··"~'·~.~ Mr. Palencia submits this letter in support of this Court's review of this case pursuant to Rule 500.11 and in support of upholding the Appellate Division- Second Department's ruling reversing Mr. Palencia's conviction and prohibiting the admission of the results of a portable breath test into evidence at Mr. Palencia's trial (People v. Palencia, 130 A.D.3d 1072 [2d Dept. 2015]). Enclosed are two copies of this letter. I. Summary Review is Appropriate in This Case. Essentially the People seek to use Mr. Palencia's compliance in submitting to a compelled portable breath test (PBT), its results and his Page 1 of9 alleged subsequent refusal, as consciousness of his guilt. As the Appellate Division found, the results of the PBT, in order to be admissible, must be accompanied by the necessary evidentiary foundation and in any event same is highly prejudicial which no limiting instructions could properly alleviate. People v. Palencia, 130 A.D.3d 1072 (2d Dept. 2015). The People allege that this Court should allow full briefing and argument because the Second Department's ruling in the instant case conflicts with decisions of the Court of Appeals and the Third and Fourth Departments. In support of their position they cite People v. MacDonald, 89 N.Y.2d 908 (1996) and People v. Adler 145 A.D.2d 943 (41h Dept. 1988). A review of these cases reveal that there is absolutely no conflict with the aforementioned precedents and the instant matter. The instant case involves the admission of the results of the portable breath test. Neither MacDonald nor Adler sought to introduce evidence of the results of any test. Instead the People merely sought to introduce the defendants' conduct independent of any test results as consciousness of guilt. Here the lower court admitted the results of a breath test, communication of said results to Mr. Palencia and his alleged subsequent reaction to establish the incriminating inference of consciousness of guilt. This is a distinction that creates quite a difference in the analysis and results of these cases. Because MacDonald and Adler did not involve the admission of any result(s) from a scientific device there is no conflict as these decisions are readily reconcilable and are indeed consistent. The People further express their concern that the ruling leaves trial courts with no discretion regarding the admissibility of PBT results of consciousness of guilt evidence and in essence creates an erroneous new rule that PBT evidence may never be admitted as consciousness of guilt evidence. Again the People completely miss the mark. Page 2 of9 II. The Evidence of Consciousness of Guilt In The Instant Case Violates The Fifth Amendment Right Against Self- Incrimination. As a matter of law, the incriminating inference of consciousness of guilt drawn from a defendant's compelled compliance to submit to a PBT, its results, communication of the results and a defendant's alleged subsequent reaction is inadmissible as it violates the Fifth Amendment right against self-incrimination. People v. Havrish, 8 N.Y.3d 389 (2007). This Fifth Amendment issue requires a two-part analysis. First, a court must assess whether the compelled act of production is sufficiently testimonial. Second, a court must determine whether the act of production is incriminating. Id.at 395. For evidence to be testimonial or communicative and trigger Fifth Amendment implications it must itself explicitly or implicitly relate a factual assertion, disclose information or express the content of a defendant's mind, when the information is compelled or coerced. Doe v. United States, 487 US 201, 210 (1988); People v. Berk, 92 N.Y.2d 701(1999). Mr. Palencia was required to submit to the PBT and disclose a reading from the device or face being charged with violating Vehicle and Traffic Law§ 1194(2)(f). Additionally, the cumulative evidence in question here is testimonial or of a communicative nature (consciousness of guilt) as the People concede that the evidence they seek to admit revealed that Mr. Palencia knew he was guilty of driving while intoxicated when he agreed to submit to the PBT and after Trooper Wallace informed him of the results Mr. Palencia intentionally refused subsequent testing at the barracks. In Schmerber, the Supreme Court held, "To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is Page 3 of9 to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege 'is as broad as the mischief against which it seeks to guard." Schmerber v. California, 384 US 757, 764 (1966). Moreover, in Muniz, the Court further stated the correct inquiry is whether the incriminating inference of [consciousness of guilt] is drawn from a testimonial act or from physical evidence. Pennsylvania v. Muniz, 496 U.S.582, 593 (1990). Here, the incriminating inference of consciousness of guilt is not drawn from the results of the PBT but instead from Mr. Palencia's subsequent reaction after learning about the results. Accordingly, the evidence is testimonial or communicative and is subject to the Fifth Amendment protection against self-incrimination. Finally, the act of submitting to the PBT, knowledge of the results and one's reaction to same is unquestionably incriminating as it is routinely utilized to establish probable cause to arrest motorists for driving while impaired/intoxicated. Because the production of the PBT result is a compelled act coupled with communication of the results and a subsequent refusat evidence of which is testimonial, the People should not be permitted to introduce said evidence as it violates the Fifth Amendment right against self- incrimination. III. Evidence of PBT Results In And Of Itself May Be Admissible If the People Laid The Proper Foundation. The People's concern of PBT evidence, never being admissible is obviously baseless and disingenuous as many lower courts have urged them to lay the proper foundation using the New York State Department of Health guidelines if they intend to introduce said evidence to establish intoxication; or for any other purpose as the Court in Palencia held below. See People v. Aliaj, 946 N.Y.S.2d 430, 441 (Sup. Ct. NY County 2012); People v. Hargobind, 950 N.Y.S.2d 725, 728 (NY City Crim. Ct. 2012); People v. Santana, Page 4 of9 930 N.Y.S.2d 176 (NY Crim. Ct. 2011). People v. Jones, 927 N.Y.S.2d 586 (NY Crim. Ct. 2011); People v. Santiago, 47 Misc.3d 195 (Sup Ct, Bronx Co, 2014); People v. George, 48 Misc.3d 676, 10 N.Y.S.3d 851 (NY Crim. Ct. 2015). Instead, either being unable to lay the proper foundation or just out of sheer stubbornness the People have refused to do so; seeking to introduce same by crafting, creating and concocting pretext purposes as an end run around these lower court rulings. IV. This Court Should Uphold the Appellate Division's Ruling The Appellate Division reversed the judgment and ordered a new trial finding in essence that the People's pretext stated purpose for the use of the evidence, consciousness of guilt, was highly prejudicial and if they intend to use to PBT evidence for its obvious purpose, intoxication, they must as an initial matter, establish the instrument's reliability and accuracy. Although the lower court required that the People establish that the test was properly administered by a duly qualified officer, the Appellate Division found that such testimony would be even more prejudicial to Mr. Palencia as it would further cause the jury to focus and rely on the results of the PBT as proof of intoxication. a. The PBT Evidence Was Highly Prejudicial Which No Limiting Instruction Could Alleviate. What the People and the dissent fail to acknowledge or realize is that jurors expect and naturally believe, that a "scientific test" used to detect alcohol and determine intoxication, administered by law enforcement who claimed to properly perform the test and is duly certified to do so, is a per se reliable and accurate reading of intoxication. Why else would an officer engage in this task and administer the PBT if he/she could not rely on its results? Surely not out of boredom, but indeed to determine intoxication. This is exacerbated by the fact that immediately after the test the defendant Page 5 of9 was placed in handcuffs and arrested. Jurors therefore naturally reason and conclude that if an officer can rely on the results to effectuate the arrest, surely so can they in determining guilt or innocence. While jurors naturally reach these conclusions, they are simply unaware that the results of a PBT are not admissible to establish intoxication as its reliability for this purpose is not generally accepted in the scientific community. Accordingly, limiting instructions directing the jury to ignore their natural instincts and turn a blind eye to evidence that goes to the very heart of the issue (intoxication) and instructing them to disregard the "scientific evidence" as well as the certified officer's duly administration of the test, is not only unrealistic but constitutes willful ignorance. Clearly, the prejudicial effect was certainly outweighed by any probative value and as such the Appellate Division correctly pointed out, under the circumstances, limiting instructions were not enough to alleviate the prejudicial impact of the evidence. b. The PBT Evidence Was Inadmissible As The People Failed and The Court Neglected To Require the Necessary Evidentiary Foundation. A basic unambiguous reading of the decision reveals that whatever stated purpose the People proffer for using the PBT result, they would be required to lay the necessary foundation set forth by the New York State Department of Health as many lower courts have urged them to do. Put another way, in order for the PBT/scientific evidence to be admissible, regardless of its stated purpose, consciousness of guilt or intoxication and irrespective of limiting instructions it must (1) pass the Frye test; (2) establish specific reliability of the procedures followed to generate the evidence proffered and (3) proffer a foundation for the reception of the evidence at a trial. (Prince, Richardson on Evidence§ 7-312 [Farrell 11th ed 1995]). The Court properly ruled that at least two of these components were missing rendering the evidence inadmissible. Page 6 of9 Only after the PBT results pass the aforementioned threshold should a court entertain whether the evidence is admissible for any limited purpose and the effectiveness of limiting instructions. Seemingly, here, the Court went even further and indicated that even if the People were able to overcome the initial threshold, the evidence would still be inadmissible as the prejudicial effect outweighed the probative value. Based on the foregoing it becomes clear that the majority's decision was not at all contradictory. The People seems to believe that the Court accepted its stated pretext purpose for their use of the PBT reading. As the majority pointed out during oral argument, as a viable alternative, the People could have used the defendant's compliance with the standardized field sobriety tests (SFTSs) instead of the PBT to draw the incriminating inference. Instead, they opted to go with the scientific evidence knowing the powerful effect such evidence would have on the jury. The decision further supports this position when the Court wrote, "We find that the evidence of the administration and results of the PBT test was necessary given the totality of circumstances. The trooper testified that the defendant failed all other field sobriety tests administered to him, and that, when he was brought to the State Police barracks, he made five unsuccessful attempts to take the chemical test, each time failing to follow the trooper's instructions. This provided the People with sufficient evidence to support their argument that the defendant evinced a consciousness of guilt without the need of introducing the PBT evidence." The above-referenced statement is not a matter of handpicking what evidence the People can and cannot use to meet their burden. Instead it is a clear statement sanctioning the prosecution from using otherwise inadmissible evidence via a crafted pretext purpose as an end run to bypass a well settled rule of law- the inadmissibility of scientific evidence, or any evidence for that matter, absent the necessary foundation. Simply put, unreliable and untrustworthy evidence, regardless of its purpose should not be presented to a jury. Page 7 of9 c. Admitting The Results Of The PBT Was Not Harmless Error "Harmless error analysis is not circular in nature; rather, it requires "two discrete considerations." (People v. Crimmins, 36 N.Y.2d at 240, 367 N.Y.S.2d 213, 326 N.E.2d 787). It is a consideration of not only the quantum and nature of the proof, but also the causal effect of the error on the jury's findings (see People v. Simmons, 75 N.Y.2d 738, 739, 551 N.Y.S.2d 196, 550 N.E.2d 449). It is these notions, of proof of guilt and prejudice to the defendant, that are the underpinnings of the harmless error doctrine (see People v. Daly, 98 A.D.2d 803, 806, 470 N.Y.S.2d 165, affd. 64 N.Y.2d 970, 489 N.Y.S.2d 35, 478 N.E.2d 176)." People v. Harris, 93 A.D.3d 58, 75; 936 N.Y.S.2d 233, 247 (2d Dep't 2012). The prosecution's argument that the Court indicated that it believed there was substantial evidence apart from the PBT testimony, that established Mr. Palencia's guilt is a clear misstatement and fails to account for the defense's effective cross examination of the People's witnesses. First, the Court said, there was sufficient evidence at the People's disposal (prior to start of the trial) to support their argument that the defendant evinced consciousness of guilt; not sufficient evidence establishing guilt. Second, the defense submits that it was very effective in establishing that Trooper Wallace failed to properly administer the testing at the barracks requiring Trooper Cangiano in unprecedented fashion, to testify as to the accuracy and reliability of the Trooper Wallace's procedures. Presumably disregarding the evidence at the barracks as unreliable the jury then turned to the only other evidence of intoxication- the PBT. Accordingly, the quantum and nature of the proof cannot be said to have been overwhelming absent the error. Moreover, the Court correctly held that the powerful scientific evidence had a significant effect on the jury. As indicated in the trial transcript, the only testimony the jury wanted read back during its deliberation was the result of the PBT- which confirms the Court's position of the powerful impact of such "scientific evidence." Only minutes after the Page 8 of9 stenographer read the PBT evidence the jury returned with a verdict convicting Mr. Palencia. Based on the foregoing, it cannot be said that the jury was not indeed swayed to convict Mr. Palencia solely because of the admission of the PBT evidence. For the foregoing reasons, the Order of the Appellate Division should be upheld. by: Camille 0. Russel, Esq. Russell Law Group, PLLC Attorney for Mr. Palencia (516) 876-9300- telephone (917) 749-5671- cellular phone. (516) 876-9301- facsimile. 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