Hon. Kathleen Rice, Nassau County District Attorney Scott Lockwood, Esq., Attorney for Defendant.
Andrew M. Engel, J.
The Defendant was charged with driving while intoxicated per se, driving while intoxicated, disobeying a traffic control device, making an unsafe lane change, failing to use due care for an emergency vehicle and failing to wear a seatbelt, in violation of VTL §§ 1192(2), 1192(3), 110(a), 1128(a), 1144(a) and 1229(c)(3), respectively.
The matter was tried before a jury and this court (Engel, J.) on May 15, 16, 17, 20 and 21, 2013. During trial the court granted the Defendant's motion to dismiss the charges of disobeying a traffic control device, making an unsafe lane change and failing to wear a seatbelt. The jury found the Defendant guilty of driving while intoxicated per se, driving while intoxicated and failing to use due care for an emergency vehicle. The Defendant has not yet been sentenced.
The Defendant now moves to set aside his convictions for driving while intoxicated per se and driving while intoxicated, pursuant to CPL § 330.30(1). The Defendant argues that the admission into evidence, during the course of the trial, of certain electronic records "relating to the calibration and maintenance of the breath testing device utilized by the police in this matter... was erroneous as a matter of law." (Lockwood Affirmation 6/26/13, ¶ ¶ 4 & 7) At the time of trial, as he does now, the Defendant raised a singular objection to the admission of the Reference Gas Record, the Breath Test Instrument Maintenance Record, the Breath Test Instrument Calibration Record and the Breath Test Instrument Calibration/Maintenance Record. ("the documents here in question") It was, and is, the Defendant's contention that, as "reproductions" of electronic records, the documents here in question should not have been admitted into evidence because "the prosecution had not shown compliance with Section 4539 of the Civil Practice and Law Rules (sic)." (Lockwood Affirmation 6/26/13, ¶ 9)
In addition thereto, the Defendant now alleges that the court erred in charging the jury by "[making] explicit reference to the impermissibly admitted evidence[.]" No such objection was raised to the court's charge at the time of trial.
In opposition, the People argue that the documents in question "were electronic records' within the meaning of [State Technology Law] § 302 " and "never existed in documentary form[.]" (Henesy Affirmation 7/22/13, ¶ 26) As such, the People argue that these documents "fall both squarely within the parameters of [CPLR] § 4518(a) and decidedly outside the scope of § 4539(b)." (Henesy Affirmation 7/22/13, ¶ 27) The People further argue that, given the fact that the Defendant did not object to the admission into evidence of the Breath Alcohol Analysis Record containing the results of the Defendant's chemical breath test, the Defendant waived any objection to the admission of the documents here in question.
A plain reading of the applicable sections of the State Technology Law ("STL"), CPLR §§ 4518(a) and 4539, as well as the legislative history of these sections, makes clear that there was no merit to the Defendant's objection at the time of trial and no merit to the present motion. As will be discussed at length hereinafter, the documents in question neither existed as a "hardcopy" original, which was then "reproduced;" nor were they copies made in the regular course of business, each condition being a necessary predicate for the application of CPLR § 4539
Our analysis must begin with the understanding that the Defendant's objection is one based upon the best evidence rule, which generally provides that when a party seeks to prove the contents of a writing the original must be produced or its absence must be satisfactorily explained. Schozer v. William Penn Life Insurance Company of New York, 84 N.Y.2d 639, 620 N.Y.S.2d 797 (1994); Kliamovich v. Kliamovich, 85 A.D.3d 867, 925 N.Y.S.2d 591 (2nd Dept. 2011) CPLR § 4539, upon which the Defendant's objection was premised, "carves out an exception to the Best Evidence Rule for business records that are copied or reproduced., on the rationale that, in today's commercial world, the accuracy of such copies is relied on without question." People v. May, 162 A.D.2d 977, 557 N.Y.S.2d 203, 204 (4th Dept. 1990) lv. den. 76 N.Y.2d 861, 560 N.Y.S.2d 1000 (1990)
Before its amendment in 1996, CPLR § 4539 provided:
If any business, institution, or member of a profession or calling, in the regular course of business or activity has made, kept or recorded any writing, entry, print or representation and in the regular course of business has recorded, copied, or reproduced it by any process which accurately reproduces or forms a durable medium for reproducing the original, such reproduction, when satisfactorily identified, is as admissible in evidence as the original, whether the original is in existence or not, and an enlargement or facsimile of such reproduction is admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduction does not preclude admission of the original.
Pursuant to this statutory exception to the best evidence rule, copies of documents were admissible as the original "provided that copies of originals are made in the regular course of business, if properly identified[.]" People v. Roach, 226 A.D.2d 55, 59, 649 N.Y.S.2d 607, 610 (4th Dept. 1996)
"This rule recognize[d] the fact that the modern business practice is to make photographic reproductions in the regular course of business and also of the fact that photographic reproductions so made are trustworthy to be treated as originals for the purpose of the best evidence rule (see, Richardson, Evidence § 577, at 585 [Prince 10th ed])." People v. Flores, 138 A.D.2d 512, 513, 526 N.Y.S.2d 125, 126 (2nd Dept. 1988)
In 1996 CPLR § 4539 was amended and divided into two (2) subdivisions. The new Section 4539(a) retained all of the provisions of the old Section 4539 and added the italicized language below:
"If any business, institution, or member of a profession or calling, in the regular course of business or activity has made, kept or recorded any writing, entry, print or representation and in the regular course of business has recorded, copied, or reproduced it by any process, including reproduction, which accurately reproduces or forms a durable medium for reproducing the original, such reproduction, when satisfactorily identified, is as admissible in evidence as the original, whether the original is in existence or not, and an enlargement or facsimile of such reproduction is admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduction does not preclude admission of the original."
Subdivision (b), which reads as follows, was also added to Section 4539:
A reproduction created by any process which stores an image of any writing, entry, print or representation and which does not permit additions, deletions, or changes without leaving a record of such additions, deletions, or changes, when authenticated by competent testimony or affidavit which shall include the manner or method by which tampering or degradation of the reproduction is prevented, shall be as admissible in evidence as the original.
Defendant seizes on the word "reproduction" to urge that subdivision (b) applies to any electronically stored document offered into evidence. Contrary to the Defendant's argument, "reproduction" does not refer to a "document" which was originally created electronically and later printed out as a hard copy. "Reproduction, " as used in CPLR § 4539(b), refers to the situation where a hard copy of an original paper document is first stored electronically and later printed as a "reproduction" of that original hard copy. As noted in the Practice Commentaries:
The 1996 amendment to CPLR 4539, adding subdivision (b), is also of limited utility with respect to electronic records. CPLR 4539(b) governs the admissibility of reproductions' of business records that were originally in documentary form and then stored by means of optical scanning or imaging. Electronic records, in contrast, are created or stored by electronic means from the outset and are not within the general scope of CPLR 4539(b). Furthermore, CPLR 4539(b) could have the unintended effect of restricting ...