People v Brooks

[*1] People v Brooks 2008 NY Slip Op 52323(U) [21 Misc 3d 1132(A)] Decided on November 19, 2008 Supreme Court, Bronx County Price, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 20, 2008; it will not be published in the printed Official Reports.

Decided on November 19, 2008
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Robert Brooks, Defendant.



23961C/07



The appearances are as follows:

ADA John Miras

Office of the District Attorney

Elliot Shapiro, Esq.

Attorney for Defendant

Richard Lee Price, J.

In this prosecution for three counts of Operating a Motor Vehicle While Under the Influence of Alcohol (Vehicle and Traffic Law §§ 1192 [1], [2], and [3}), just prior to jury selection, defendant moved in limine to preclude the admittance into evidence of calibration reports of the Intoxilyzer machine claiming that, because these documents are produced for the purpose and in anticipation of litigation, they are testimonial and, therefore, violate the Confrontation Clause based on the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004). The People argue that the reports are business records and not testimonial statements under Crawford and are admissible.

Conclusions of Law

CPLR §4518(a), a codification of the New York business records exception, states, in pertinent part: Any writing or record, whether in the form of any 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.

In People v. Cratsley, 86 NY2d 81, 89 (1995), the Court of Appeals summarized the [*2]three foundational requirements for a finding under CPLR §4518: First, the record must be made in the regular course of business-reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record-in other words, the record was made pursuant to established procedures for the routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made.

As long as business records meet the criteria of CPLR §4518, they are admissible. People v. Mertz, 68 NY2d 136, 147-148 (1986).

However, in Crawford v. Washington, supra, the Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had a prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by court. While Crawford does allude to the non-testimonial nature of business records, Id. at 56, the Court of Appeals in People v. Rawlins and People v. Meekins, 10 NY3d 136, 150 n.10 (2008) cautioned against the categorical exemption of business records as a fundamental misreading of Crawford. Therefore, under Crawford, otherwise admissible hearsay may be inadmissible as violating the Sixth Amendment.

In People v. Kanhai, 8 Misc 3d 447 (Crim. Ct. Queens Co. 2005), the court addressed the same challenge presented in the case at bar. That defendant was charged with violating VTL §1192(1) and the People sought to introduce, inter alia, the calibration test conducted by an NYPD technician on the Intoxilyzer machine that was used on the defendant. The court held initially that the report was a business record, finding that the New York City Police Department as well as the New York State Police Crime Laboratory qualify as businesses under the "broad" definition of CPLR §4518(a). Id. at 450. In finding that the reports were business records, the court reasoned: The calibration tests . . . were . . .conducted as a routine course of business to maintain the operability and accuracy of the machine. . .[T]hese tests were conducted, and records made of them, prior to the defendant's arrest in this case pursuant to the New York State Department of Health Rules and Regulations found at 10 NYCRR 59.4 setting forth the criteria for breath testing instruments.

Id. at 451.

The court in Kanhai noted, however, that the inquiry does not end with the determination that a document qualifies as a business record; it must also be [*3]ascertained whether the report was made primarily for litigation purposes. The Court of Appeals in People v. Foster, 27 NY2d 47, 52 (1970) held that documents that are prepared solely in anticipation of litigation should be excluded; however, documents prepared pursuant to business, administrative or regulatory rules should not be excluded simply because they have a possible, or even probable, future use in litigation.

In Kanhai, the court held that the calibration reports were not made "specifically for this litigation, and none contain opinions or testimony'; they are simply memorializations of tests conducted." Kanhai at 452. The court in Green v. DeMarco, 11 Misc 3d 451 (Sup. Ct. Monroe Co. 2005) used similar reasoning and likened the periodic inspections of the breathalyzer machines to state-mandated safety inspections of motor vehicles: "Just as auto mechanics must determine periodically whether cars meet the state-imposed safety criteria, technicians must determine periodically whether breath testing instruments meet state-imposed accuracy criteria." Id. at 464.

Defendant cites People v. Pacer, 6 NY3d 504 (2006) in support of his assertion that the calibration records are testimonial and should be excluded. Defendant's reliance on Pacer is misplaced. In Pacer, the People sought to introduce an "Affidavit of Regularity/Proof of Mailing" prepared by a Department of Motor Vehicles. The Court of Appeals held that introduction of the Affidavit violated that defendants's constitutional right to confront the witnesses against him because that record was not made in the regular course of business but rather prepared in anticipation of the specific prosecution of that defendant.[FN1] In contrast, in the instant matter, the People seek to introduce calibration reports prepared not in anticipation of the prosecution of this particular defendant but as relating to the maintenance of this particular Intoxilyzer machine.

After an analysis of Crawford and the New York business records exception, the court in Kanhai concluded that the calibration test was not testimonial and met all of the criteria for the business records exception and was, therefore, admissible. See also People v. Stevenson, 2008 WL 4344902, slip. op. (NY App. Term, 1st Dept.) (Sept. 24, 2008); People v. Lebrecht, 13 Misc 3d 45 (NY App. Term, 2d Dept. 2006); People v. Krueger, 9 Misc 3d 950 (Lockport Just. Ct. 2005); But see People v. Orpin 8 Misc 3d 7668 (Irondequoit Just Co. 2005).

In turn, this Court holds that the calibration records satisfy the requirements [*4]of CPLR §4518 to qualify as a business record and are not testimonial under the parameters of Crawford. Accordingly, defendant's motion in limine to exclude the calibration reports and any and all outstanding motions are denied.

This shall constitute the Decision and Order of this Court.

Dated:Bronx, New York

November 18, 2008

________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1:Defendant also cites People v. Levy, 2008 WL 4225596 (NY Dist. Ct.) 2008 NY Slip. Op. 51878(U) (Nassau Co. Dist Ct. 2008) in support of preclusion of the calibration reports. Levy, however, is inapposite. Levy discusses the refusal of the court to admit into evidence a 300 page urinalysis report. In its discussion of the business records/Crawford analysis, the court actually reaffirms that calibration tests are routinely admitted as business records in Driving While Intoxicated cases. Levy at *8.