People v Fisher

[*1] People v Fisher 2005 NY Slip Op 51726(U) [9 Misc 3d 1121(A)] Decided on October 25, 2005 City Court Of Rochester, Monroe County Morse, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 2, 2005; it will not be published in the printed Official Reports.

Decided on October 25, 2005
City Court of Rochester, Monroe County

The People of the State of New York

against

Paul Fisher, Defendant.



041556



Matthew Schwartz, ADA

Timothy Rath, Esq. (Defendant's Counsel)

Thomas Rainbow Morse, J.

During his alcohol related driving trial, the defendant opposed introduction of the foundational documents customarily offered to validate the admission of the results of a breath test and subsequently objected to the results being admitted due to lack of foundation. The basis for the objections was the defendant's inability to exercise his constitutional right to confront the witnesses against him as outlined by the Supreme Court in Crawford v. Washington.[FN1] As this was a bench trial, the court reserved decision and in the interests of judicial economy allowed the evidence to be introduced subject to submission of papers and rendering of this opinion. Following the trial, the court reached a partial verdict on all charges except the per se DWI charge. [FN2] For the reasons that follow, the court overrules the defendant's objections to the admission of the breath test documents, allows their introduction into evidence and permits the breath test results to be considered by the court as fact finder. [FN3]

The Historical Right of Confrontation[*2]

Criminal defendants in New York enjoy co-existing state and federal constitutional rights to confront their accusers.[FN4] As the Supreme Court has observed, that right "comes to us on faded parchment...with a lineage that traces back to the beginnings of Western legal culture." [FN5] Yet, while a defendant's present day adversarial right to meet an accuser "face to face" sprung from early Roman law,[FN6] its course was diverted in twelfth century Europe when that and other Roman rights were supplanted by the medieval practice in "secular and ecclesiastical courts for the judge to examine each witness in secret" and then have the "transcribed testimony...read aloud in open court." [FN7] While during this period the defendant did retain a truncated right to have accusers appear and be sworn in court, the witness's live testimony was received out of the defendant's presence.[FN8] At the very least, however, this limited right of "confrontation" gave the defendant the opportunity to "reproach" or object to the testimony of a potentially biased witness.[FN9] These ancient rights we now take for granted under the Bill of Rights were re-instituted in England during the late 17th and 18th centuries.[FN10] During that period, English criminal trial practice took on many of the adversarial components we recognize today, including the right to have those witnesses accusing a defendant of wrongdoing appear in open court [*3]subject to cross-examination by the defendant. [FN11] This rapidly evolving adversarial process essential to English liberty interests was outlined by Blackstone in his Commentaries published between 1765 and 1769 [FN12] and a commitment to those re-kindled rights burned brightly in many of those who voyaged here.

It is this recognition of a criminal defendant's long dormant right to face and cross examine accusers in open court as a colonial response to judicial abuses which the majority in Crawford asserted was the historical foundation for our Sixth Amendment.[FN13] The Court observed that the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh's; that the Marian statutes invited; that English law's assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.[FN14][*4]

Thus, the Crawford majority proclaimed that when assessing the admissibility of what it termed "testimonial" evidence against an accused the Confrontation Clause "commands...reliability be assessed in a particular manner: by testing in the crucible of cross-examination." [FN15]

The Constitutional Right to Confrontation

This confrontation right was part of the original Bill of Rights and was later added to a number of State Constitutions. It wasn't until 1965, however, that the Supreme Court announced that all States were bound by its provisions through the Fourteenth Amendment.[FN16] Accordingly, the majority of cases interpreting the relationship between the Confrontation Clause and the admission of out-of-court statements at criminal trials have come within the last forty years. Correspondingly, the "Court's efforts to tie the Clause so directly to the hearsay rule is of fairly recent vintage,"[FN17] gaining momentum after the Supreme Court's 1980 decision in Ohio v. Roberts.[FN18]

The mode of analysis sanctioned by Roberts required judges to determine if the hearsay being offered possessed an "adequate indicia of reliability."[FN19] Under Roberts reasoning, reliability of an absent declarant's out-of-court statement could "be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception."[FN20] If the firmly rooted exception umbrella didn't shield the statement, it would be inadmissible unless the prosecutor could make "a showing of particularized guarantees of trustworthiness."[FN21] While the Court in Roberts saw itself as adhering to almost a century of precedent,[FN22] critics, including some Supreme Court Justices,[FN23] expressed concern that the Roberts Court had broken new ground in the framework it established for considering the admission of hearsay under the Confrontation [*5]Clause. Those justices became part of the majority in Crawford when the Supreme Court severely limited the applicability of the Roberts rule. Fearing that under Roberts analysis some hearsay was imprudently subjecting "the Sixth Amendment's protection to the vagaries of the rules of evidence [and] to amorphous notions of 'reliability.' " the Supreme Court in Crawford found that Roberts analysis should not be used when the reliability of "testimonial" hearsay was being considered.[FN24]

The Specific and Limited Ruling in Crawford v. Washington

While the sub-set of "testimonial" hearsay will no longer be admitted at trial no matter how reliable it appears unless the defendant has already cross examined the maker of the statement, Justice Scalia writing for the majority purposefully declined to specifically delineate exactly what the term "testimonial" meant. In doing so, the Crawford majority recognized that such a "refusal to articulate a comprehensive definition in this case will cause interim uncertainty." [FN25] The Court did, however, label a discrete group of four "core testimonial statements" as falling clearly under the Court's rubric of "testimonial" evidence.[FN26] Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. [FN27]

Accordingly, those specific categories of formal and solemn written or recorded statements are inadmissible at trial unless the unavailability of the witness was due to the actions of the defendant.[FN28] Embedded in each of those "testimonial" statements and their historical antecedents [FN29] is the concept of a person bearing formal and solemn witness against a defendant regarding particular allegations of wrongdoing. In each of those factual settings, the witness's testimony is clearly being given "against" a specific accused regarding an identified offense. This conclusion is supported by a number of references in Crawford.

Confronting "Witnesses Against" a Defendant at TrialFirst, although the plain text of the Confrontation Clause guarantees a defendant the "right...to be confronted with the witnesses against him," the Crawford Court declined to read [*6]"witnesses against" to mean all "those whose statements are offered at trial." [FN30] In line with that reasoning, a number of recent cases have declined to extend Crawford to pre-trial or post conviction proceedings.[FN31] Even when offered at trial, the Court acknowledged that "not all hearsay implicates the Sixth Amendment's core concerns." [FN32] The Court noted that [t]he text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accusedin other words, those who "bear testimony." "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. [FN33]

As noted by the Court, what was of interest to English reformers and colonists was hearsay that had a solemn and formal nature made to government officers which accused an identified defendant of a particular crime.

Thus, the majority opinion is replete with references illustrating that the hearsay statements which particularly concerned the Court were such solemn formal accusations. Repeatedly, the Crawford majority harkened to the historical "right to confront one's accusers,"[FN34] [*7]or the right to have one's " accusers, i.e. the witnesses against him, brought before him face to face. " [FN35] The Court derided the practice which denied Raleigh the opportunity to bring his "accuser before [his] face," [FN36] and would not allow Sir John Fenwick to "see his accuser." [FN37] It noted that colonists cherished a defendant's right "to be confronted with, or defend himself against his defamers," [FN38] and cited to early colonial cases [FN39] including one which held that a witness should be cross-examined by "the man he accuses." [FN40]

Clearly, not all evidence at trial qualifies as a solemn formal accusation. If, in the "testimonial" context, the phrase "for purposes of establishing or proving some fact" meant "proving any fact", then certainly all nine justices in Crawford would not have exempted "business records" from the definition of "testimonial." Yet, they appear to have done exactly that by noting in 1791 such records "by their nature were not testimonial." [FN41] Unfortunately, the Justices did not agree on what other evidence at trial might constitute "non-testimonial" hearsay.

Other than the four solemn formal testimonial accusations which form part of the Confrontation Clause's "common nucleus," [FN42] there was no unanimity regarding how far from the center "testimonial" radiates or even what formula should be employed to define its outer boundary. While the Court recognized several analytical models, it is important to remember that the Court did not endorse any one of them. Instead, the Court observed that all three frameworks represented "levels of abstraction around"[FN43] the "core class of testimonial statements."[FN44] While all of those formulations would include the hearsay the Court placed at the Confrontation Clause's epicenter, aspects of two of the approaches arguably fall outside the "testimonial" circumference and appear antithetical to the Crawford Court's quest for [*8]constitutional consistency. [FN45] Moreover, if used in isolation, they would create chaos.

Reasonably Foreseeable Use at Trial

Michael Crawford's brief suggested that the standard should not only encompass "ex parte in-court testimony or its functional equivalent," but also cover "similar pretrial statements that declarants would reasonably expect to be used prosecutorially." [FN46] The alternative floated by the National Association of Criminal Defense Lawyers in its amicus brief would include all "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." [FN47]

There is perhaps good reason why a majority of Supreme Court Justices did not adopt either Michael Crawford's or the Defense Lawyers' definitions. First, since seven of the nine justices in Crawford voted to discontinue Roberts' amorphous analytical framework, it is unlikely that they would readily embrace an essentially shapeless standard requiring a court to find that "an objective witness [would] reasonably...believe that the statement would be available for use at a later trial." Nor, does it appear they would be quick to endorse an equally elusive test focusing on "pretrial statements that declarants would reasonably expect to be used prosecutorially." Such "vague standards"[FN48] would spawn schools of inconsistent opinions similar to those bred by Roberts. Justices Scalia and Thomas presciently recognized this dilemma twelve years before Crawford when they observed that [a]ttempts to draw a line between statements made in contemplation of legal proceedings and those not so made would entangle the courts in a multitude of difficulties. Few types of statements could be categorically characterized as within or without the reach of a defendant's confrontation rights. [FN49]

Moreover, since Justice Scalia in Crawford reflected on the Supreme Court's responsibility "to interpret the Constitution in a way that secures its intended constraint on judicial discretion,"[FN50] efforts to establish clear parameters for "testimonial" hearsay would surely flounder if judicial [*9]gatekeepers based their decisions exclusively on either of the proposed reasonably foreseeable standards.

To be meaningful, such vague standards should not be used as independent yardsticks, rather, they should be employed simply as one of a number of factors courts may consider when assessing whether particular evidence is "testimonial." This appears to be precisely how the Federal Second Circuit and a New York Appellate Division have used reasonable forseeablity.

The Second Circuit's analysis of the broadest of the four core testimonial categories, police interrogations, illustrates how such a limited use of reasonable forseeability can be helpful. In two post-Crawford cases, the Second Circuit has held "that testimonial statements 'involve a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her response might be used in future judicial proceedings.' " [FN51] In dictum in a third case, the Second Circuit sought to "assist courts to work gradually, case by case, toward a functional understanding of " the term "testimonial" when it noted that "[a]lthough the word "interrogation" can include any asking of questions, the first meaning listed (for "interrogate") in Webster's Third New International Dictionary is "to question typically with formality, command, and thoroughness for full information and circumstantial detail. We believe the Supreme Court intended this more limited meaning, which is more consistent with the other types of testimonial statements the Court mentioned." [FN52] In the particular case before it, the court went on to observe that [a]s for the answers to the early questions, delivered in emergency circumstances to help the police nab Arthur's assailants, we doubt that these were of the type of declarations the Court would regard as testimonial. As for the final statement, however, made after Mungo and Stewart had been caught, and after Arthur had confirmed that they were the men who shot him, specifically that it was Mungo who shot the gun and that the motive was robbery, this statement seems to have been made in greater formality with a view to creating a record and proving charges. It seems more likely to fall within the category the Court described as testimonial. [FN53]

This same reasoning was employed in an analogous fact pattern by the Appellate Division First Department when it distinguished between the "detailed, particularized and memorialized questioning undertaken in Crawford" from the "more spontaneous, general and preliminary inquiry addressed in an unstructured context." [FN54] [*10]

These post-Crawford appellate cases clearly delineate as "testimonial" those situations in which government officials in a solemn and formal setting produce evidence against an identified individual regarding a particular offense. Those are factors consistent with the reasons underlying the Sixth Amendment and critical to the Supreme Court's Confrontation Clause analysis. Courts using this benchmark, rather than concentrating entirely on the more elastic tool of reasonable expectation of later trial use, would have a brighter line by which to judge testimonial evidence and would be safeguarding a more easily recognizable "confrontation right [that] is far less extensive, but far more intensive, than the rule against hearsay."[FN55]

While this definition of "testimonial" would curtail Confrontation Clause analysis, it would not open floodgates deluging trials with hearsay since this definition does not preclude states from stemming the tide of extra-judicial statements by employing the Roberts framework when considering the admissibility of "non-testimonial" hearsay.[FN56] Because testimonial is not synonymous with evidentiary, the use of documentary evidence in lieu of live testimony at a criminal trial is not categorically unconstitutional.[FN57] Rather, only those solemn formal ex parte affidavits which accuse a particular individual of specific acts of wrongdoing or which were created by government officers solely for use as evidence against a specific defendant appear to fall within the parameter of "testimonial" hearsay for Confrontation Clause purposes.

The Foundational DWI Documents Are Not "Testimonial"

It is clear from the foregoing that the certificate of calibration for the breath test instrument, the simulator solution analysis and weekly instrument test records are not "testimonial" under the Confrontation Clause.[FN58] The calibration certificate [FN59] and certification of [*11][*12]analysis of the simulator solution [FN60] relate to tests performed well before the defendant was stopped for DWI by the Rochester Police Department and later given a breath test by a Monroe County Sheriff's Deputy. They were completed by technical staff in Albany from the State Division of Criminal Justice Services and the New York State Police. The technicians who created the reports memorialized their results before any member of law enforcement accused the defendant of driving with a blood alcohol level above a .08 %. Thus, in a Sixth Amendment sense, neither the technicians nor those who certified their test results as business records can be construed as bearing "witness against" this particular defendant under Crawford.[FN61] While the [*13]weekly simulator solution test logs bracket the date of the defendant's breath test and were performed by the same law enforcement agency on the same instrument, they too are "non-testimonial". The tests were performed routinely and were scheduled irrespective of the administration of the defendant's breath test.

All of those documents are foundational. They do not constitute evidence of the defendant's actions or his physical or mental condition. Instead the documents are offered as evidence tending to prove the reliability of the instrument used to test the defendant's breath. They do not relate specifically to his arrest or accuse him of any offense. In fact, they would be just as relevant in a DWI case where the defendant's BAC level was .02% as they would be in a case where it was alleged to be a .20% because the breath test instrument is a screening device which may be used to charge a person with a misdemeanor, with a violation or used to completely exonerate an individual.[FN62]

The Post-Crawford Business Record Hearsay Exception

The fact that the DWI foundational documents are not "testimonial" does not, however, end the inquiry. The records are still out of court statements by an absent witness being offered for the truth of the facts asserted in them: they are classic hearsay. In fact, the People recognized as much when they offered the DWI documents pursuant to CPLR Rule 4518, New York's business record exception to the hearsay rule. While an easy answer to the question presented would favor admissibility since, as noted earlier, Crawford exempted business records from its definition of testimonial, few things in life are that simple.

In evaluating the admissibility of a purported business record in a criminal case, the Court of Appeals indicated that "[w]hile the concept of 'business' has ventured far beyond the mercantile origins of this hearsay exception...still not every record made in business falls within [*14]the exception." [FN63] In addition the court has reminded lower courts that admission of business records impacts a defendant's Confrontation rights and that "[t]he particular force of documents which are not subject to cross-examination, and which may be taken into the jury room..., cannot be ignored. " In fact, even if a record qualifies as a business record, there are those rare instances in which other evidence in a case may cast such doubt on the document's reliability that due process requires live testimony to be offered before a jury can be asked to evaluate the weight to be given to the evidence.[FN64] Nonetheless, over the past twenty-five years, our Court of Appeals has consistently recognized that properly authenticated instrument calibration certificates, chemical analysis certificates and weekly test logs prepared by absent witnesses may be admitted in a DWI case pursuant to CPLR Rule 4518(c).[FN65]

Consistent with the analysis first suggested in Roberts and permitted under Crawford for "non-testimonial" hearsay, the DWI foundational documents can be made available to a fact finder in a criminal case, if the judge determines that the documents possess an "adequate indicia of reliability."[FN66] Moreover, the reliability of the some documents can "be inferred without more [*15]in a case where the evidence falls within a firmly rooted hearsay exception."[FN67] In this case, the People have asserted that the DWI documents are business records and that the business records exception is firmly entrenched in our law.[FN68]

They are correct on both counts. With pre-colonial roots, the statutory "business records exception grew out of considerations of necessity and trustworthiness."[FN69] In New York, it has blossomed into a statutory and common law framework which requires first, that the record be made in the regular course of businessessentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business; second, that it be the regular course of such business to make the record (a double requirement of regularity)essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and third, that the record be made at or about the time of the event being recordedessentially, that recollection be fairly accurate and the habit or routine of making the entries assured.[FN70]

The DWI foundational documents at issue here meet all those criteria. First, New York taxpayers need and rely on the labs to make sure that materials purchased with public funds are fit for their intended purpose. Thus, the State has a fiscal interest in making sure the chemicals are properly formulated and that the instruments function appropriately. In addition, the State has a due process interest in assuring itself and the public that the breath testing instruments and chemicals used by law enforcement produce accurate results. Lastly, our courts have held that before results of a breath test may be admitted in a DWI trial "the People must introduce evidence from which the trier of fact could reasonably conclude...that the testing device was in proper working order at [*16]the time the test was administered to the defendant and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportion."[FN71] For all of those reasons, New York State has established routine and periodic testing procedures for both breath test instruments and chemicals.[FN72]

The fact that reasonable technicians might anticipated that certified copies of the results of their work might be offered into evidence at future trials involving the prosecution of a number of unknown individuals for crimes not yet committed does not mean these documents are inadmissible without their live testimony. Unlike business records created for the sole purpose of litigation which are not true business records and fall outside the hearsay exception,[FN73] these documents have substantial non-litigation purposes. In the analogous area of police car speedometer calibrations, our Court of Appeals has held Of course, records prepared solely for the purpose of litigation should be excluded. However, if there are other business reasons which require the records to be made, they should be admissible. It appears that the speedometer deviation records should be admissible since...they were not records made outside of the ordinary course of police department business, solely for the instant litigation. It is generally true that such speedometer tests are made at regularly scheduled intervals, and that the records kept are merely memorials of the fact that the tests were made and what the results were. This is a classic example of making records in the regular course of business; and, it is probably the regular course of police business in maintaining highway safety to make such records at the time of the test. While it is true that such records may later be used in litigation, such was not the sole purpose when they were made, and, therefore, they should not be excluded merely because this was a possible future use. Had proper foundation been laid for admission of the speedometer deviation record as a business entry, it should have been received in evidence....[FN74][*17]

In this case, the People provided a sufficient evidentiary foundation for admission of the documents. Thus they are admissible and the fact finder's focus shifts to the weight to be given them when challenged by a defendant through cross-examination or presentation of proof. [FN75]

The same cannot be said, however, of the breath test operator's supporting deposition or the "BAC DataMaster State of New York Evidence Ticket", which was printed out by the instrument after the defendant's breath test. Those documents relate directly to this defendant's arrest. They memorialize the breath test that the People offer as circumstantial evidence of the defendant's blood alcohol level at the time he was driving. The deposition was clearly prepared in a formal and solemn manner by a public officer to accuse this specific defendant accusing him of a particular offense.[FN76] The printout is the hardcopy record of the defendant's breath test. Thus, they are both "testimonial" under Crawford and are inadmissible at trial unless, as occurred here, the breath test operator is present and available for cross-examination by the defendant.[FN77]

Conclusion

The DWI foundational documents are not "testimonial" under the Confrontation Clause and are admissible as business records in this proceeding. The foregoing constitutes the decision [*18]and order of the court.

Dated:October 25, 2005

Hon. Thomas Rainbow Morse, JCC

Rochester, New York

Footnotes

Footnote 1:541 U.S. 36(2004).

Footnote 2:New York Vehicle and Traffic Law § 1192(2).

Footnote 3:Because of the importance of this topic for future DWI trials and interest expressed in the court's ruling, this court has issued this written opinion following the oral decision rendered from the bench on March 10, 2005. The holding herein is faithful to the court's original finding, however, the analysis is expanded to account for a number of recent cases decided in New York and other states. In that regard, I thank my Law Clerk Gene Crimi for his up to the minute research.

Footnote 4:"In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." US Constitution, 6th Amendment; NYS Constitution Article 1, § 6. Since 1939, our state's similar constitutional provision has provided that "[i]n any trial in any court whatever the party accused shall...be confronted with the witnesses against him." McKinney's Const. Art.1 § 6.

Footnote 5:Coy v. Iowa, 487 US 1012, 1015 (1988)(citation omitted).

Footnote 6:"[I]n Cicero's day...accusing witnesses testified in open court before the defendant and were subjected to cross examination by the defendant's counsel." Herrman & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int'l L. 481, 540(1994).

Footnote 7:Id at 515-16.

Footnote 8:Id. at 518-23.

Footnote 9:Id. at 521-22, 538-39. Anonymous accusations were only allowed in inquisitions against heresy on the theory that "an accusing witness's safety would be endangered if the defendant knew the witness's identity." Id. at 535. By the end of the sixteenth century, however, at least one prominent commentator urged abandonment of the inquisition and return to a more Roman adversarial criminal procedure. Although his model seems to presuppose that a defendant will testify at trial which is antithetical to our Fifth Amendment, French lawyer and judge Pierre Ayrault's suggestions mirror the rights provided by the Sixth: a public trial with a defendant's right to confront and cross-examine witnesses in open court. Id at 540-44.

Footnote 10:Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 Cornell L. Rev. 497 (1990).

Footnote 11:Landsman defines the adversarial system as "a sharp clash of proofs presented by litigants in a highly structured forensic setting [before a] neutral and passive decision maker". Id. At 500. Based upon his examination of the records of every day court proceedings in London's Old Bailey criminal court, his article outlines the development in three stages. First, there was the pre-1730's non-adversarial period wherein "...Judges were in control of the cases...lawyers were virtually never present, litigants were subordinated to the direction of the court, and few rules of procedure or evidence cabined proceedings." Id. at 502. Next was the period between the 1730's and the 1780's when in a small number of cases "litigant and lawyer participation at trial intensified and a variety of evidentiary restrictions were recognized." Id. Lastly, during the last quarter of the century these innovations spread to an increasing percentage of cases so that "[b]y 1800, adversary procedure predominated." Id. In part, Landsman notes, "[t]he decision of a number of social reformers to use legal proceedings to challenge objectionable institutions may have significantly encouraged the rise of adversary procedure in the second half of the eighteenth century." Id. at 581. In addition, "other developments such as the rise of dynamic individualism, the growth of a market economy, and even the forging of the scientific method may have had as much or more to do with legal change." Id. At 600.

Footnote 12:Id. At 590-91.

Footnote 13:Crawford at 43-50. The Law Review articles relied upon in this opinion are cited as authority for some of the historical analysis by the majority in Crawford.

Footnote 14:Crawford at 50. As noted by the Supreme Court in an earlier case,"[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845(1990).

Footnote 15:Crawford at 61.

Footnote 16: Pointer v. Texas, 380 US 400, 403-405(1965).

Footnote 17:Lilly v. Virginia, 527 US 116, 140(1999)(Breyer, J. concurring).

Footnote 18:Ohio v. Roberts, 448 US 56 (1980).

Footnote 19:Roberts at 65-66.

Footnote 20:Roberts at 66.

Footnote 21:Roberts at 66.

Footnote 22:Roberts at 67.

Footnote 23:As early as 1992, Justice Thomas, joined by Justice Scalia argued that the Supreme "Court's cases unnecessarily have complicated and confused the relationship between the constitutional right of confrontation and the hearsay rules of evidence." White v. Illinois, 502 US 346, 358(1992)(Thomas, J., and Scalia, J., concurring in part, concurring in judgment). Seven years later, Justice Breyer questioned whether "the current hearsay-based Confrontation Clause test is arguably too broad." Lilly v. Virginia, 527 US 116, 142(1999)(Breyer, J., concurring)

Footnote 24:Crawford at 61.

Footnote 25:Crawford at 68.

Footnote 26:Crawford at 63.

Footnote 27:Crawford at 68.

Footnote 28:Crawford at 62. The Court noted that "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds." Id.

Footnote 29:Crawford at 50. Co-conspirator Cobam's asserted that Raleigh was involved in a conspiracy and Committing Magistrates and Coroner's Inquests heard from eyewitnesses outside the defendant's presence. See the earlier discussion of The Historical Right of Confrontation.

Footnote 30:Crawford at 42-43. "The Constitution's text does not alone resolve this case. One could plausibly read "witnesses against" a defendant to mean those who actually testify at trial, those whose statements are offered at trial, or something in between. We must therefore turn to the historical background of the Clause to understand its meaning." Id. (Citations omitted).

Footnote 31:Crawford does not apply in the Grand Jury - People v. Laumeyer, 2005 WL 2290442 (Yates Co. Ct., Falvey, J., 2005), People v. Pacer, 799 NYS2d 881 (Ontario Co. Ct., Doran, 2005); at pre-trial hearings - People v. Robinson, 9 Misc 3d 676 (Suffolk Co. Ct., Gazzillo, 2005), U.S. v. Saneaux, 365 F. Supp. 493 (SDNY, 2005); at sentencing U.S. v. Martinez, 413 F3d 239 (2nd Cir., 2005), U.S. v. Memendez, 2005 WL 1423268, FN. 3 (SDNY, 2005); in Violation of Probation - People v. Brown, 6 Misc2d 1021(A)(Ontario Co. Ct., Doran, J., 2005), or Sex Offender Risk Assessment (SORA) determinations - People v. Dort, 18 AD3d 23 (3rd Dept., 2005).

Footnote 32:Crawford at 51. Thus, "[a]n off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them." Id.

Footnote 33:Crawford at 51.

Footnote 34:Crawford at 42(citations omitted).

Footnote 35:Crawford at 43(citations and internal quotation marks omitted).

Footnote 36:Crawford at 44(citations omitted).

Footnote 37:Crawford at 45-46(citations omitted).

Footnote 38:Crawford at 47(citations and internal quotation marks omitted).

Footnote 39:Crawford at 49-50(citations omitted).

Footnote 40: State v. Campbell, 30 S.C.L. 124(S.C.App.Law 1844).

Footnote 41:Crawford at 56(majority opinion). While both the seven member majority and the two justices in concurrence all cited business records, only the concurrence listed public records as well. Crawford at 76 (Rehnquist, J., joined by O'Connor, J., (concurring in judgment, dissenting in part).

Footnote 42:Crawford at 52.

Footnote 43:Crawford at 52.

Footnote 44:Crawford at 51.

Footnote 45:Discussing Roberts' "general reliability exception" the Court observed that "[t]he framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations." Crawford at 62-63.

Footnote 46:Crawford at 51. The functional equivalents included "material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine." Id.

Footnote 47:Crawford at 52.

Footnote 48:As noted by the majority in Crawford, "[b]y replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable." Crawford at 67-68.

Footnote 49:White at 364(Thomas, J., concurring in part and in judgment, joined by Justice Scalia).

Footnote 50:Crawford at 67.

Footnote 51:U.S. v. Logan, 419 F.3d 172, 178 (2nd Cir., 2005) citing to U.S. v. Saget, 377 F.3d 223, 228 (2nd Cir., 2004).

Footnote 52:Mungo v. Duncan, 393 F.3d 327, 336, FN. 9 (2nd Cir.,2004).

Footnote 53:Mungo at 336, FN. 9.

Footnote 54:People v. Bradley, 799 NYS2d 472, 476 (1st Dept., 2005). See also, People v. Marino, 21 AD3d 430 (2nd. Dept., 2005). Compare People v. Ryan, 17 AD3d 1, 4(3d Dept., 2005)(declarant in custody); People v. Coleman 16 AD3d 254 (1st Dept., 2005)(victim at police station); People v. Royster, 18 AD3d 375(1st Dept., 2005)(911 call regarding location and injuries); People v. Newland, 6 AD3d 330, 330-31(1st Dept., 2004)(Field information from one not witnessing incident).

Footnote 55:While the above reasoning is mine, this phrase was penned by Michigan Law School Professor Richard D. Friedman. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 101, 1013(1998).

Footnote 56:Not only didn't the majority in Crawford define "testimonial" but it also seemed to leave open whether non-testimonial hearsay would be subject to Sixth Amendment Confrontation Clause or Fifth Amendment Due Process Clause analysis noting that "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay lawas does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Crawford at 68.

Footnote 57:Crawford at 51-52.

Footnote 58:In the intervening period since this court's oral ruling, a number of court's in this and other states have addressed his issue. While they obviously were not part of this court's holding, it is worth noting at this point in dicta that with the exception of one, they are all consistent with the analysis previously employed by this court. Two of the New York cases have allowed admission of the DWI foundational documents as "non-testimonial". See People v. Kanhai, 8 Misc 3d 447 (NYC Criminal Ct., Modica, J., 2005); People v. Krueger, 2005 WL 2241470 (Lockport Town Ct., Tilney, J. 2005). The Third found they were "testimonial". People v. Orpin, 8 Misc 3d 768(Irondequoit Town Ct., DeMarco, J., 2005). The opinion in Orpin places great emphasis on the proposition that the Albany technicians who created the DWI foundational documents "must have known that these reports would be used in criminal prosecutions." Id. at . The court, therefore, seems to have almost exclusively evaluated the "testimonial" nature of the evidence using the yardstick of "reasonable forseeability." Since, as outlined above, such a focus is not required by the limited holding in Crawford and is inconsistent with its reasoning and prior views expressed by members of the Supreme Court, this Court respectfully disagrees with the decision in Orpin. In addition to these New York trial court cases, a number of appellate courts in other states have addressed this issue. In fact, the court in Orpin purports to find support in one of them. That reliance, however, is misplaced. A review of the record in the intermediate Florida appellate court case of Shiver v. State, 900 So. 2d 615 (2005), shows that the document under consideration was the "Breath Test Result Affidavit" prepared by the breath test operator. The form contained a line affirming that "[t]he instrument log indicates that this Intoxilyzer 500 Series (S/N) ______________________passed the most recent agency inspection conducted on (Date) ___________." That inspection, however, was not conducted by the BTO. In fact, at trial the trooper testified that "the only thing I know about that is the instrument has to be retested or whatever they do to it within a calendar month." Understandably, the court found the inclusion of the information in the Breath Test Affidavit to be rank hearsay. The documents that were before this court were quite different. They were copies of original test records which showed the exact results of the tests performed in the regular course of business of a government subdivision different from the arresting agency. The other out of state decisions, have held that documents similar to those offered in this case and other blood test records are not "testimonial." Two intermediate appellate courts found no Crawford violation. See People v. Napier, 820 NE2d 144, 149(Indiana App., 2005)("the information contained in the certificates does not pertain to the issue of guilt. Rather, that information simply goes to inspection and certification matters."); State v. Cook, 2005 WL 736671(Ohio App. 6th District, 2005)(the calibration certificate "is not evidence against appellant; it merely lays the foundation for the attached documents."). The highest courts in two other states made similar determinations. The case distinguished by the court in Orpin involved a report outlining how un-called nurse draw a blood sample was drawn in a DWI case wherein the person who received the sealed blood test kit and analyzed the sample did testify at trial. See State v. Dedman, 102 P3d 628 (2004)("a blood alcohol report is generated by SLD personnel, not law enforcement, and the report is not investigative or prosecutorial. Although the report is prepared for trial, the process is routine, non-adversarial, and made to insure an accurate instrument."). The case before the Montana Supreme Court, however did consider breath test documents similar to those used in this state. In State v. Carter, 114 P.3d 1001(2005), the court held that the calibration reports "are not substantive evidence of a particular offense, but rather are foundational evidence necessary for the admission of substantive evidence. In other words, the certification reports are nontestimonial in nature in that they are foundational, rather than substantive or accusatory."

Footnote 59:Before the court is the BREATH TEST INSTRUMENT RECORD OF INSPECTION/ MAINTENANCE/CALIBRATION" of National Patent Analytical Systems Datamaster Serial # 990059. In that document, Michael J. Hess, a technician for the Office of Public Safety at the NYS Division of Criminal Justice Services outlines his findings from January 14, 2004, in Albany, New York. He certified that he "performed any necessary maintenance procedures and calibrated" the breath test instrument which was used ten days later to capture a sample of the defendant's breath. He "determined that [the instrument was] accurate and reliable for the determination of ethyl alcohol in the blood by analysis of the breath." He further noted that "the instrument satisfies all limits and standards established by the New York State Commissioner of Health as enumerated in...10 NYCRR Part 59." The record indicates it was the "YEARLY INSPECTION" of the instrument.

Footnote 60:State Police Crime Laboratory employee Harry K. Garber, who is a Forensic Scientist II, "approved for use" Stiefel Research Institute's Simulator Solution Lot # 03160 after certifying that it did "contain the appropriate concentration of ethyl alcohol" and found that if the "reference solution is used with a properly operating breath test instrument, the solution will provide a value of 0.10% at 34 C." That was the same simulator solution lot that was used two and a half months later during the defendant's breath test.

Footnote 61:The fact that the authenticating certificate provided pursuant to CPLR Rule 4518( c) was not created at the time of the test or within a reasonable time thereafter is not fatal to the documents admissibility. As noted by the Court of Appeals [w]here a "certification or authentication" replaces the testimony of a live witness, pursuant to CPLR 4518(c), it must state that the documents that it authenticates were produced in the normal course of business at or near the time that the act, transaction, occurrence or event recorded in those documents occurred. The authenticating certificate itself need not be dated or produced at or near the date of the act, transaction, occurrence or event." People v. Kinne ,71 NY2d 879, 880(1988). Recent decisions involving documentary evidence in driving with a suspended license cases do not require a re-evaluation of that premise since the document in Kinne and the documents here were completed and filed away long before the authenticating certificate was created. All the certificate does is to certify the copy of the original which has been retained by the state. Compare CPLR Rules 4539 and 4540(admissibility of copies). More importantly, the authenticating certificates do not allege any new facts relating to the subject matter of the documents referenced but merely explain that the attached records were made and kept in the regular course of business. Compare People v. Pacer, 796 NYS2d 787(4th Dept., 2005). See also People v. Brown, 9 Misc 3d 420(Supreme Ct., Queens Co, Roman, J., 2005)(DNA analysis showing raw data admissible without technician who performed test since there was cross-examination of forensic pathologist who reached conclusion regarding the raw data.); and People v. Bones, 17 AD3d 689(2nd Dept., 2005)(DNA test report admissible through supervisor of the work even though the witness did not perform the tests herself).

Footnote 62:Vehicle and Traffic Law Section 1195(2)(a) provides that a BAC level below .05% "shall be prima faciie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition." See also VTL §§ 1195(1), (2)(b) and (2)(c).

Footnote 63:People v. Kennedy, 68 NY2d 569, 578-79(1986)(citations omitted). The Supreme Court long ago declined to allow "[r]egularity of preparation [to] become the test rather than the character of the records and their earmarks of reliability acquired from their source and origin and the nature of their compilation." Palmer v Hoffman, 318 U.S. 109, 114(1943). For instance, "as a rule, the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records." People v. Cratsley 86 NY2d 81,90 (1995)(Citation and internal quotation marks omitted).

Footnote 64:Even though CPLR Rule 4518(a) provides that "[a]ll other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility," The Fourth Department found it was error to admit a hospital record without the physician who authored it because other evidence in the case flatly contradicted the doctor's findings. Thus, the record alone could not satisfy the "condition of providing the jury with the indicia of reliability necessary for proper evaluation of the document without the aid of cross- examination." People v. Bridges 184 AD2d 1042, 1043(4th Dept., 1992)(internal quotation marks omitted). Compare People v.Alves, 1 AD3d 938 (4th Dept., 2003)(delay in disclosing breathalyzer records under the facts of that case did not deny defendant an opportunity to present a defense) with State v. Carter, 114 P3d 1001(2005)("If, in a given case, the defendant's pretrial investigation reveals that the reports are in error or otherwise subject to attack, the defendant is always free to subpoena the authors.").

Footnote 65:See People v. Gower, 42 NY2d 117, 121(1977); People v. Farrell, 58 NY2d 637, 638-39(1982); People v. Mertz, 68 NY2d 136, 147-48(1987); People v. Kinne, 71 NY2d 879, 880-81(1989); People v. Dargento, 302 AD2d 924(4th Dept., 2003)(no six month rule for calibration).

Footnote 66:Roberts at 65-66.

Footnote 67:Roberts at 66.

Footnote 68:CPL § 60.10 allows incorporation of CPLR Rule 4518 in criminal trials. "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter....The term business includes a business, profession, occupation and calling of every kind." CPLR Rule 4518(a). A fourth requirement for admissability was added by the Court of Appeals seventy-five years ago in Johnson v. Lutz, 253 NY 124, 128(1930)(The exception "was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto."). See also Matter of Leon R.R., 48 NY2d 117, 122-23(1979)(Caseworker's notes admissible but other parts of file were not).

Footnote 69:Kennedy at 578.

Footnote 70:Kennedy at 579-80.

Footnote 71:People v. Freeland, 68 NY2d 699,700 (1986)(citation omitted).

Footnote 72:1O NYCRR 59.5(f); 10 NYCRR 59.4.

Footnote 73:People v. Samuels, 302 NY 163 (1951).

Footnote 74:People v. Foster, 27 NY2d 47, 52-53 (1970)(citations omitted). In finding admissible "linesheets" created during a wiretap unrelated to the investigation of the defendant Guidice on trial for assault, the Court of Appeals found they "were records made in the ordinary course of police business [they] served an important administrative function in the daily conduct of a police surveillance operation; they were required to be made pursuant to a court order; their purpose was to maintain an inventory of the tapes and to safeguard them against tampering; and they were included in the progress reports that were filed regularly with the Judge supervising the wiretap order. Finally, the fact that their preparation was incidental to a police surveillance operation does not make them inadmissible" People v. Guidice 83 NY2d 630,635(1994).

Footnote 75:Document issues such as "[identifying] the catalyst in the ampoules as silver rather than silver nitrate...go to the weight of the evidence, not its admissibility." People v. Dailey, 260 AD2d 81, 82 (4th Dept., 1999)(citations omitted) lv. denied 94 NY2d 821(1999). It is for that reason that this court now requires that when a DWI case is set for trial that the People must provide the documents to defense counsel rather than simply making them available at their office. While the court finds office availability sufficient discovery through the pre-trial hearing stage, once trial is scheduled, defendant and counsel should have copies of the documents to be offered at trial in their possession to review at their leisure and decide on avenues of cross-examination and trial strategy.

Footnote 76:This decision is consistent with the Third Department's ruling in People v. Rogers, 8 AD3d 888 (3rd Dept., 2004), which did not involve a DWI case but employed reasoning similar to this court regarding the "testimonial" nature of some business records. In that case, law enforcement officers investigating allegations of sexual assault against a particular individual requested that a blood sample be taken from the complainant and analyzed to determine her level of intoxication, if any. At trial, the results of the test we admitted as business records without testimony from lab personnel. The court found that the reported results were not business records and were "testimonial" because they were prepared exclusively for the purpose of the litigation: the prosecution of Mr. Rogers for Rape and Sodomy. Thus, it were inadmissible without the testimony of the witness who prepared it. The court, however, found the admission of the victims hospital records permissible as business records even though they included hearsay statements by the victim to medical personnel, because the statements were "germane to the patient's subsequent medical treatment and diagnosis."

Footnote 77:That is not to say that such documents are always admissible. Depending on the manner in which direct examination was conducted by the prosecutor, the documents may be subject to an objecting based on bolstering. People v. Trowbridge, 305 NY 471 (1953).