People v Cook

People v Cook 2013 NY Slip Op 07885 Decided on November 27, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 27, 2013
105626

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

YANCY D. COOK, Appellant.

Calendar Date: October 11, 2013
Before: Peters, P.J., Stein, McCarthy and Spain, JJ.


The DeLoach Law Firm, Ballston Spa (Stacey L.
DeLoach of counsel), for appellant.
James A. Murphy III, District Attorney, Ballston Spa
(Nicholas E. Tishler of counsel), for respondent.

MEMORANDUM AND ORDER


Stein, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 19, 2012, upon a verdict convicting defendant of the crimes of aggravated driving while intoxicated and driving while intoxicated (two counts).

In May 2011, defendant was driving an all-terrain vehicle with his seven-year-old son as a passenger. A State Trooper approached defendant, detected an odor of alcohol and observed that defendant had glassy eyes. Defendant admitted to the trooper that he had been drinking alcohol and subsequently failed multiple field sobriety tests. As a result, defendant was arrested and transported to the police station, where a breathalyzer test revealed that defendant had a blood alcohol content of .12%. Defendant thereafter was charged with driving while intoxicated (two counts) and aggravated driving while intoxicated. Following a jury trial, defendant was found guilty as charged and was subsequently sentenced to four months in jail and a three-year conditional discharge, requiring him to install an ignition interlock device. Defendant now appeals, and we affirm.

Defendant's sole argument on appeal is that his 6th Amendment right to confront witnesses was violated when County Court allowed the admission of the calibration and maintenance records for the breathalyzer machine without requiring the People to call as witnesses the individuals who signed those records. The maintenance records were prepared by employees of the State Police Forensic Investigation Center and were kept in the regular course of business. While defendant argues that the records were testimonial in nature because their [*2]purpose was to prove an element of the crime at trial, the Court of Appeals has recently rejected this argument and held "that documents pertaining to the routine inspection, maintenance and calibration of breathalyzer machines are nontestimonial under [Crawford v Washington, 541 US 36, 53-54 (2004)] and its progeny" (People v Pealer, 20 NY3d 447, 456 [2013], cert denied ___ US ___ [Oct. 7, 2013]; see People v Menegan, 107 AD3d 1166, 1168 [2013]; People v Hulbert, 93 AD3d 953, 954 [2012])[FN1]. Accordingly, the admission of these records did not violate defendant's rights under the Confrontation Clause.

Peters, P.J., McCarthy and Spain, JJ., concur.

ORDERED that the judgment is affirmed. Footnotes

Footnote 1:To the extent that defendant argues that two United States Supreme Court cases — Melendez-Diaz v Massachusetts (557 US 305 [2009]) and Bullcoming v New Mexico, (___ US ___, 131 S Ct 2705 [2011]) — "trump[]" the Court of Appeals' holding in Pealer, we note that both Melendez-Diaz and Bullcoming were explicitly addressed in Pealer (People v Pealer, 20 NY3d at 454-455).