The People, Appellant,v.Carlos Palencia, Respondent.BriefN.Y.June 21, 2016APL-2015-00330 To be Argued by: CAMILLE 0. RussELL (Time Requested: 30 Minutes) N.ew tnrk ~upr.em.e Qtnurt Appellate iliui.aiott- i'.e.r:onb il.epartm.ent THE PEOPLE OF THE STATE OF NEW YORK, DOCKET No.: 2013-08636 Plaintiff-Respondent, -against- CARLOS PALENCIA, Defendant- Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT CARLOS PALENCIA RUSSELL LAW GROUP, PLLC Camille 0. Russell, Esq. Attorney for Defendant-Appellant CARLOS PALENCIA 400 Post Avenue, Ste. 401 Westbury, NY 11590 516-867-9300 Nassau County Clerk's Index No. 1490N-2012 A1hnJJ nr:ss--:N r~ ;...~! j.~.J S, \rc iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii;;;;;;:;;·ii;~: l\ \ ~] ~.) ] )} TABLE OF CONTENTS ARGUMENT ................................................................................................. l I. THERE IS NO SUBSTANTIVE DIFFERENCE BETWEEN A NUMERICAL READING AND A POSITIVE READING OBTAINED FROM A PORTABLE BREATH TEST AND THUS PROOF THAT THE DEVICE IS CALIBRATED AND PROPERLY WORKING IS REQUIRED BEFORE EITHER RESULT CAN BE ADMITTED INTO EVIDENCE ....••. ...•••.•••.....••••••.•.....••••.......••.••••.. 1 II. THE PEOPLE CANNOT AND SHOULD NOT GET THE PRESUMPTION OF CONSCIOUSNESS OF GUILT ON A REFUSAL BY CONDUCT UNTIL THEY ESTABLISH THAT THE STATIONARY DEVICE WAS CALIBRATED, WORKING PROPERLY, AND CORRECTLY ADMINISTERED LEAVING THE DEFENDANT'S ACTIONS AS THE ONLY REASON WHY THE INSTRUMENT FAILED TO REGISTER A SAMPLE/READING ................................................................ 2 III. COMPLIANCE WITH THE LAW CANNOT BE ADMISSIBLE EVIDENCE OF CONSCIOUSNESS OF GUILT .............................................................. 3 IV. THE TRIAL ERRORS WERE NOT HARMLESS IN LIGHT OF THE EVIDENCE PRESENTED .......................................................... 4 CONCLUSION ............................................................ 6 CERTIFICATE OF COMPLIANCE ........................ ................. 7 ARGUMENT I. There is no substantive difference between a numerical reading and a positive reading obtained from a portable breath test and thus proof that the device is calibrated and properly working is required before either result can be admitted into evidence. The People seem to argue that that the PBT' s reliability comes into question only when it produces a numerical value but not when it produces a positive signal for alcohol. This is illogical and defies common sense when it is the same device using the same internal mechanism to achieve its results. The type of result bears no impact on the reliability of the instrument. Indeed, if the instrument is unreliable, then it is unreliable for all intents and purposes not just for certain results. Conversely, if the device is reliable, it is reliable for both numerical and non-numerical results. Furthermore, to admit the evidence to prove guilt (same as consciousness of guilt) is even more damaging and prejudicial to the defendant as opposed to intoxication which is only one element of the offense. Admitting the PBT evidence to prove guilt is not at all limited but is direct and ultimate proof of what the People seek to establish- guilt. 1 There can be no greater proof of guilt than when the defendant believes himself to be guilty and that evidence is submitted to a jury. II. The People cannot and should not get the presumption of consciousness of guilt on a refusal by conduct until they establish that the stationary device was calibrated, working properly, and correctly administered leaving the defendant's actions as the only reason why the instrument failed to register a sample/reading. Before the People are permitted to introduce evidence that the defendant believes he/she is guilty, they should, at the very least, be required to eliminate the other two possibilities- a broken instrument and/or improper administration of the test. These are two simple evidentiary tasks that are relatively easy to establish. Instead the People get the benefit of simply claiming that it is the defendant's manipulation of the machine without addressing the other two obvious possibilities. Practically speaking it improperly shifts the burden to the defendant to address these two obvious reasons. Indeed the law acknowledges in the pattern jury instructions that there could be other explanations (two of which are solely within the People's province and control) for a refusal that the defense is required to address and eliminate instead of the prosecution. 2 Of course any explanation such as health issues or any other issue that is within the defendant's control would be incumbent on him to present. In support of its position that calibration records are not required for a refusal by conduct the People rely on Adler. People v. Adler, 145 A.D.2d 943 (4th Dep't 1988). However Adler lends no value to the analysis because in Adler the defendant admitted that it was his manipulation of the instrument that led to its failure to register a reading; thereby relieving the People of their burden to establish that it was no fault of the instrument or the operator's administration of the test. III. Compliance with the law cannot be admissible evidence of consciousness of guilt. This argument is neither tangled nor complicated. In fact, it is pretty straightforward. Vehicle & Traffic Law 1194(1)(b) clearly indicates that motorists are required to submit to portable breath tests. One the one hand the People cannot demand that a motorist comply with the law and when he does claims his compliance is consciousness of guilt. The People claim the defendant was under no greater compulsion to take the PBT than he 3 was to take the Draeger. This is wrong because the law mandates him to take the PBT but gives him an option as to the stationary instrument. The People further claim that this argument was not preserved for appeal. The very language of CPL 470.05(2) establishes that the issue was in fact preserved for appeal. CPL 470.05(2) expressly states, "Such protest ..... is sufficient if the party made his position with respect to the ruling or known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal." Clearly this statutory language eliminated the need for a nexus between the ground of the protest and the rationale of the ruling. IV. The trial errors were not harmless in light of the evidence presented. The People presented three witnesses: one they apologized and made excuses for during the summation, the other witness testified how in all her years of law enforcement this was the first time she was called to explain another officer's administration of the breath test and the third witness was unable to identify the defendant and Count Two for which he was called to establish was ultimately dismissed. 4 Trooper Wallace failed to properly administer the standardized field sobriety tests and failed to properly administer the breath test proof of which is clear from the test receipts and Trooper Cangiano's testimony. He also communicated critical legal concepts and rights in English while he admittedly could have communicated in Spanish to a suspect he concedes has trouble with the English language. Mr. Palencia's cooperation was not a result of listening and comprehending what Trooper Wallace said; instead it is clear that he simply repeated what Trooper Wallace demonstrated. 5 CONCLUSION Wherefore it is respectfully requested that this Court vacate the conviction grant the appellant a new trial or give any other relief this court may deem necessary and proper. 6 Certification of Compliance I, Camille Russell, an attorney duly admitted to practice law in the State of New York, do hereby certify (in accordance with 22 NYCRR 670.10.3(f)) that this brief was prepared on a computer using Palatino Linotype, a proportionally spaced typeface with a point size of 14 and with double line spacing and that the total number of words in the brief, including footnotes and headings but not including pages containing tables of contents, tables of authorities, proof of service, certificate of compliance and appendix is 1,141 . This word count was determined using the "Word Count" tool of Microsoft Word. Dated: August 15,2014 Westbury, NY Camille Russell 7