People v Kelly
Annotate this CaseDecided on December 22, 2009
Criminal Court of the City of New York, New York County
The People of the State of New York
against
Michael Kelly, Defendant.
2007NY078228
The People were represented by:
Sherita Walton
Assistant District Attorney
New York County District Attorney's Office
One Hogan Place
New York, NY 10013
(212) 335-9944
The defendant was represented by:
Benedict Gullo
114 Old Country Rd Ste 212
Mineola, NY 11501-4441
(516) 294-3550
James M. Burke, J.
Do routine intoxilyzer maintenance reports constitute testimonial evidence requiring in-court testimony of the technicians who tested them? This court concludes that they do not.Defendant was charged with two counts of Operating a Motor Vehicle While Under the Influence of Alcohol, pursuant to VTL § 1192 (2) and (3). During a jury trial, the People offered into evidence the certificate of analysis of the breath alcohol simulator solution and three machine calibration reports documenting the status and maintenance of the Intoxilyzer 5000 machine used to measure defendant's blood alcohol level. Two of the machine calibration reports predated Mr. Kelly's arrest by several months. The third report was taken three days after Mr. Kelly was tested. The documents, offered into evidence through the testimony of the officer who administered the test, were admitted over defendant's objection. The jury returned a verdict convicting defendant of VTL § 1192 (2) and acquitting him of the remaining count. Defendant now moves to set aside the verdict pursuant to CPL § 330.30 (1) arguing that, under Melendez-[*2]Diaz v. Massachusetts, 129 S Ct 2527 (2009), admission of the calibration reports violated his constitutional right to confrontation.
The United States Constitution guarantees that in all criminal prosecutions the accused has the right "to be confronted with the witnesses against him." US Const Amend VI. In its practical application, the Confrontation Clause prohibits the introduction of out-of-court statements that are testimonial in nature unless the defendant had an opportunity to cross-examine the declarant. See Crawford v Washington, 541 US 36 (2004).
Not all out-of-court statements implicate the Confrontation Clause. The United States Supreme Court explained in Crawford that the Sixth Amendment ensures that only testimonial statements against a defendant must be subject to the rigors of cross-examination. The Court offered a broad and general description of testimonial statements: "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52 (internal citations omitted).
The question of what specifically constitutes testimonial evidence, however, has generated a great deal of legal argument and discussion. Since Crawford dealt with statements made by a witness during a police interrogationa class of out of court statements which is testimonial under any interpretationthe court did not endeavor to formulate "a comprehensive definition of testimonial," leaving such an effort "for another day." Id. at 68.
Melendez-Diaz provided the Court with an opportunity to further refine the definition of "testimonial," this time in the context of scientific reports admitted into evidence in a drug trial. Melendez-Diaz was charged with the distribution and trafficking of cocaine in an amount between 14 and 28 grams. The documents in question consisted of a laboratory technician's analysis of the substance, its weight, and the technician's conclusion that the substance was cocaine. The Massachusetts court, over the defendant's objection, admitted the certificates into evidence to establish the composition, quality and net weight of the substance, even though the laboratory technician did not testify in person. The Supreme Court held the affidavits to be testimonial thereby requiring the technician's in-court testimony, because (1) Crawford clearly includes affidavits in its general definition of statements covered by the Confrontation Clause; (2) "the affidavits were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial"; and (3) its purpose was to provide prima facie evidence of a fact necessary for defendant's conviction. Id. at 2532. The Court also rejected the contention that classifying a document as a business record automatically places it outside the ambit of the Confrontation Clause. Although records created and used in the ordinary course of the affairs of a business are generally nontestimonial, this is not true when "the regularly conducted business activity is the production of evidence for use at trial." Id. at 2538. The laboratory analysis report, a document produced specifically for the trial [*3]against defendant Melendez-Diaz, was testimony against him and thus subject to confrontation. Id. at 2539-2540.
Shortly after the United States Supreme Court decided Melendez-Diaz, the New York Court of Appeals addressed a similar issue in People v Brown, 13 NY3d 332 (2009). To relieve a backlog in DNA testing, a rape kit was sent to an independent laboratory where a DNA report containing raw data, graphs and charts of the genetic make-up of the sample was generated. This data was later compared to another specimen found in a national database, producing a "cold hit" indicating that Brown might fit the genetic profile of the perpetrator. Further testing on a more recent sample submitted to the Office of the Chief Medical Examiner (OCME) proved the defendant to be a "one-out-of-one-trillion" match to the DNA sample found in the rape kit. At Brown's trial, the forensic biologist from the OCME who conducted the tests that identified Brown as the rapist testified to her scientific conclusions and to the methodology used to reach those conclusions. She also testified to her familiarity with the independent laboratory's procedures and protocols. The Court of Appeals concluded that the genetic profile reported by the independent laboratory was not testimonial. The report differed from the laboratory analyses in Melendez-Diaz in that it was a neutral scientific test free of any law-enforcement bias. It was prepared long before Brown was ever a suspect and, unlike the report generated by the OCME linking the defendant to the genetic material in the rape kit, was devoid of anything accusatory in nature.
Defendant posits that the calibration tests here are testimonial evidence because, like the laboratory analyses in Melendez-Diaz, they are affidavits prepared for purposes of litigation in order to prove a fact necessary to establish guilt. In defendant's view, Melendez-Diaz requires that even neutral scientific testing must be subject to confrontation to avoid fraud and to ensure the competency of the testers. Id. at 2536-2537. Defendant argues that the only difference between those laboratory analyses and these calibration tests is that the calibration tests are not sworn under oath. The court disagrees and notes that there are several more significant differences between the two sets of documents which serve to distinguish this case from Melendez-Diaz.
Unlike the laboratory analyses in Melendez-Diaz, the intoxilyzer calibration tests were not prepared specifically for the prosecution of Mr. Kelly. In order to comply with regulations promulgated by the Department of Health, any agency using a breath testing device must ensure that the device is properly calibrated and meets the standards set by the Commissioner. See 10 NYCRR § 59.4 (a) (3). Records of calibration and maintenance must be maintained by the agency and must, pursuant to the rules of discovery set forth in the Criminal Procedure Law, be turned over to the defense in prosecutions involving certain violations of the Vehicle and Traffic Law. See 10 NYCRR § 59.5(f), CPL § 240.20(1)(k). The tests at issue here, three of which predate Mr. Kelly's arrest, were not prepared for the prosecution of any specific defendant. Rather, they were prepared in the regular course of equipment maintenance to ensure that the agency was in compliance with the law. Contrary to defendant's contention, not all scientific reports bearing some relevance to the case are testimonial. The calibration tests here do not accuse Mr. Kelly of a crime nor do they serve to prove an element of any of the charges against him. This differs significantly from scientific reports prepared specifically for the prosecution of a particular defendant. Indeed, in Melendez-Diaz itself, the Supreme Court noted that [*4]"documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records." 129 S Ct at 2532 n1. See also People v Stevenson, 21 Misc 3d 128(A), 2008 NY Slip Op 51933(U) (App Term, 1st Dept 2008) (breathalyzer maintenance reports nontestimonial); People v. Lebrecht, 13 Misc 3d 45 (App Term, 2d Dept 2006) (same).
Like the DNA test results in Brown, intoxilyzer calibration tests are neutral scientific reports which do not serve to accuse defendant or establish a fact necessary to prove guilt.The reports provide numerical data and the results of tests of individual components of the machine, but are devoid of any opinions or subjective conclusions. As was the case in Brown, this data would be insufficient to accuse defendant or establish any element of the crimes with which he is charged. The test results merely lay a foundation for the admissibility of his subsequent breathalyzer test.
In this case, it is the results generated from defendant's blow into the machine, not the functioning of the apparatus, that generated testimonial evidence, thereby requiring the technician who administered the breathalyzer test to be present at trial and subject to cross-examination. Since that technician did indeed testify at defendant's trial, the rights guaranteed him by the Confrontation Clause have not been violated. Defendant may, of course, choose to challenge the accuracy or reliability of the machine as part of his defense. That he chose to raise this issue, however, does not make the calibration tests testimonial.
Accordingly, defendant's motion to set aside the verdict is denied.
This constitutes the decision and order of the court.
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