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People v. Lin

New York Court of Appeals

February 16, 2017

The People & c., Appellant,
Hao Lin, Respondent.

          Anthea H. Bruffee, for appellant.

          Denise Fabiano, for respondent.

          STEIN, J.

         In this appeal challenging convictions for driving while intoxicated, defendant argues that the Confrontation Clause was violated where the police officer who testified at trial regarding defendant's breath test directly observed the test, but did not personally administer it. Because the officer testified based on his own observations and conclusions, rather than as a surrogate for his partner who actually administered the test, and none of the nontestifying officer's hearsay statements were admitted against defendant, we hold that defendant's rights under the Confrontation Clause were not violated.


         Defendant was arrested for driving while intoxicated (DWI) and other traffic offenses. He was taken to the police station, where Officers Harriman and Mercado - who were both experienced breath analysis operators trained on the Intoxilyzer 5000 - remained in defendant's presence for the entire breath-testing procedure. Harriman administered the breath test to defendant, progressing through the 13 steps on the police department checklist and completing the forms related to the test procedure. Mercado personally observed the performance of these tasks, and operated the video recorder that memorialized defendant's test.

         On defendant's first two attempts to provide a breath sample, he did not blow properly, so the machine emitted an error sound, would not give a result, and had to be reset. On the third attempt, defendant provided a proper sample. Mercado testified that he knew it was proper because the machine did not make the error sound, and it printed out the result, which was a blood alcohol content of.25 of one percentum. Mercado further testified that a person cannot alter a reading in the machine once someone blows into it.

         Prior to defendant's trial, Harriman retired from the New York Police Department and moved out of state. Therefore, Mercado testified at trial regarding the breath test procedure and results, including his opinion that defendant was intoxicated. The 13-step checklist completed by Harriman was not admitted into evidence. As relevant here, the jury convicted defendant of two counts of DWI. Appellate Term reversed and remitted for a new trial on those counts (46 Misc.3d 20 [App Term 2014]), holding that defendant's Confrontation Clause rights were violated. That court so concluded because Mercado did not personally observe whether the machine display of the simulator solution temperature was within the proper range, which was an essential part of the 13-step operational checklist; the court also noted that the record did not indicate whether the machine will perform if the temperature is outside the proper range. A Judge of this Court granted the People leave to appeal (25 N.Y.3d 1202');">25 N.Y.3d 1202 [2015]), and we now reverse.


         In general, the Confrontation Clause of the Sixth Amendment renders inadmissible the testimony of a witness against a criminal defendant "unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination" (Melendez-Diaz v Massachusetts, 557 U.S. 305');">557 U.S. 305, 309 [2009]; see People v Pealer, 20 N.Y.3d 447, 453 [2013], cert denied ___ U.S. ___, 134 S.Ct. 105');">134 S.Ct. 105 [2013]). In particular, the Confrontation Clause is concerned with admission of testimonial statements made by declarants who are unavailable for cross-examination (see Williams v Illinois, ___ U.S. ___, ___, 132 S.Ct. 2221, 2238 [2012]). Many of the recent Confrontation Clause decisions of the United States Supreme Court and of this Court concern documents such as affidavits, certifications and forensic reports that were introduced without any live testimony, or through the testimony of a person who was familiar with the testing procedure in general, but who lacked any direct connection to the particular defendant's testing (see Bullcoming v New Mexico, 564 U.S. 647');">564 U.S. 647 [2011]; Melendez-Diaz v Massachusetts, 557 U.S. 305');">557 U.S. 305 [2009]; People v John, 27 N.Y.3d 294');">27 N.Y.3d 294 [2016]). While the present case is factually distinguishable, those cases are instructive.

         In Bullcoming v New Mexico, the United States Supreme Court determined that the Confrontation Clause was violated by the introduction of a blood test report through the testimony of an analyst who was familiar with the general testing procedure, but "who had neither observed nor reviewed" the analysis of the defendant's blood (564 U.S. at 655). The Court held that information regarding test analysis and results is admissible only through, or when accompanied by, live testimony of someone familiar with the particular test and process actually applied to the defendant's sample (see id. at 661). The Court reasoned that surrogate testimony of an individual who was not involved in the test at issue is insufficient because it cannot "convey what [the testing analyst] knew or observed about... the particular test and testing process he [or she] employed" (id. at 661), and cannot "expose any lapses or lies" by the testing analyst (id. at 662). As the concurrence in that case acknowledged, "[i]t would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results" (id. at 673 [Sotomayor, J, concurring] [emphasis added]).

         In People v John, this Court ruled similarly - under circumstances indistinguishable from those in Bullcoming - where a DNA lab report was admitted into evidence "without a testifying analyst who performed, witnessed or supervised any portion of the testing" (27 N.Y.3d at 308). We contrasted the facts in John with those in People v Brown (13 N.Y.3d 332 [2009]), wherein we discerned no Confrontation Clause violation because the testifying witness had supervised the generation of a DNA profile, and personally examined and independently interpreted the data (see John, 27 N.Y.3d at 310, citing Brown, 13 N.Y.3d at 337, 340). While we held in John that it was not necessary for every person who came into contact with the evidence to appear at trial, we required that "at least one analyst with the requisite personal knowledge must testify" (John, 27 N.Y.3d at 313). Thus, we concluded that a defendant's Confrontation Clause rights would be protected as long as the People presented testimony of "a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile" (id. at 314 [emphasis added]).

         Neither the United States Supreme Court nor this Court has required the primary analyst to testify in every case in order to protect a defendant's confrontation rights. Indeed, both courts have commented that the Confrontation Clause is satisfied if the trial witness is a trained analyst who supervised, witnessed or observed the testing, even without having personally conducted it (see Bullcoming, 564 U.S. at 666; id. at 673 [Sotomayor, J., concuring]; John, 27 N.Y.3d at 304, 314). This is so because someone in such a position would be able to testify not only about the typical testing protocol, but also about "the particular ...

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