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[962 N.Y.S.2d 593] D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), for appellant.
Jason L. Cook, District Attorney, Penn Yan, and Hannah E.C. Moore, New York Prosecutors Training Institute, Inc., Albany, for respondent.
[962 N.Y.S.2d 594]Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod of counsel), and Morrie I. Kleinbart, Staten Island, for District Attorneys Association of the State of New York, amicus curiae.
[985 N.E.2d 904] The question presented in this appeal is whether records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines can be offered as evidence in a criminal trial without producing the persons who created the records. We hold that because such documents are nontestimonial, the records are not subject to the Confrontation Clause requirements set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Early one morning in October 2008, the Penn Yan Police Department in Yates County received an anonymous telephone call indicating that someone who was possibly intoxicated had left a particular restaurant and was driving a gray car with a sticker on its rear window. Shortly after receiving this information, a police officer on patrol saw a gray 1996 Subaru and he followed the car for several minutes. After observing the car weaving, he stopped the vehicle for the illegal window sticker ( see Vehicle and Traffic Law § 375  [b][i] ).
The driver, defendant Richard Pealer, stated that he had just left work at the restaurant that had been identified by the tipster. When asked if he had consumed any alcohol, defendant replied that he had " two beers" after finishing his shift. The [985 N.E.2d 905] officer noticed that defendant's eyes were red and glossy, his speech was impaired and defendant had an odor of alcohol. After defendant failed several field sobriety tests and a breath screening test confirmed that defendant had been drinking, he was arrested for driving while intoxicated (see Vehicle and Traffic Law § 1192 ).
At the police station, defendant telephoned a lawyer and then agreed to take a breathalyzer test. A breath-test operator conducted the testing and the machine computed defendant's blood alcohol content at .15% (close to twice the legal limit).
Defendant was eventually indicted for felony DWI (defendant had two prior felony DWI convictions).
During the jury trial, the People offered into evidence documents pertaining to the routine calibration and maintenance of the breathalyzer machine used in defendant's breath test, in order to demonstrate that it was in proper working order at the time defendant was tested. Specifically, two of the documents certified that the breathalyzer had been calibrated by the New York State Division of Criminal Justice Services in Albany in September 2008 and March 2009, respectively. The third document stated that a sample of the simulator solution had been analyzed and approved for use in the breathalyzer by the State Police. The People intended to introduce these records through the testimony of the officer who administered the breathalyzer test to defendant.
Defendant raised a Confrontation Clause challenge to these documents, contending that he was entitled to cross-examine the authors of the three records. County Court disagreed and allowed the documents to be received in evidence. The jury found defendant guilty of DWI as a D felony (along with driving while ability ...