History of the Case

On June 28, 2003 Leonard J. Lansdowne was charged with

Operating Without a Seatbelt, VTL 1229( c )(3), Parking on the Pavement, VTL 1201( c ) Per

Se, Driving While Intoxicated, VTL 1192(2) and Common Law Driving While Intoxicated,

VTL. 1192(3). The defendant was arraigned on July 8, 2003. The matter was set down for a

probable cause, Huntley, and Ingle Hearing on January 16, 2004, whereupon the relief sought

by the defendant was denied. The case was then adjourned to allow for continued discovery.

The matter was eventually set down for a bench trial on November 12, 2004. On that date

defense counsel made a motion to dismiss the accusatory instrument relative to the charge of Per

se, Driving While Intoxicated pursuant to VTL 1192(2), and by implication the remaining

charges, pursuant to CPL170.30(1)(e) on the ground that the defendant was denied his right to a

speedy trial pursuant to the Sixth Amendment of the United States Constitution and C.P.L. [*2]

Sections 30.20 and 30.30. The motion was based on the fact that the defense did not receive

some of the breath test documents until the day the matter was originally set for trial, namely May 26, 2004.^[FN1] The defense argued that the People were not ready for trial as they stated on July

9, 2003, and that the interim time should be counted against the people. The court reserved on

the defense motion and the case proceeded to trial.

Facts of the Case

The people called Monroe County Deputy Sheriff Noel Terwilliger as their first witness.

Deputy Terwilliger was the officer who made the arrest in question. He testified that the

defendant was driving his girlfriend's 1995 Ford pick up truck on June 28, 2003 at

approximately 11:02 P.M. in the Town of Webster. The defendant pulled into the Mobil Mart

at the corner of Ridge Road and Route 250. Also at that location was Monroe County Sheriff

Deputy Terwilliger, who was on his coffee break. Deputy Terwilliger proceeded to observe the

defendant go about his business while at that location. When it came time for the defendant to

leave the premises the officer testified that he saw the defendant enter his vehicle and get

behind the wheel. He then saw the defendant put the car in motion, but did not see the

defendant put on his seat belt. The defendant's vehicle turned on to Route 250 and proceeded

northbound. The deputy then proceeded to follow Mr. Lansdowne northbound onto Route

250. Deputy Terwilliger then noticed that the defendant put on his stop lights and was pulled to

the side of the road. At that point the deputy observed that three-fourths of the defendant's

vehicle was in the road and one-quarter of the truck was over the fog line. The deputy then put

on his emergency lights and pulled up behind the defendant's vehicle. [*3]

The defendant, seeing the sheriff's vehicle parked behind him with the emergency

lights on, got out of the truck he was driving and approached the deputy. The deputy observed

that the defendant used the truck for balance as the defendant walked toward him. Deputy

Terwilliger testified that he observed a strong odor of alcoholic beverage emanating from the

breath of the defendant, while the two of them were about six feet apart. The defendant

was able to identify himself with his New York State Driver's License. At this time the

defendant's girl friend, later identified as Laura Earnshaw, remained in the vehicle.

The defendant was asked to stand by his rear bumper, while the deputy began to inquire

into the situation. Upon asking the defendant why he stopped his vehicle, Mr. Lansdowne was

described as mumbling that "The pizza man screwed up the order". He indicated that he was

meeting the pizza man at the mini mart. The deputy described the defendant as exhibiting

many of the other indicia of intoxication, such as flushed complexion, blood shot and watery

eyes. The deputy then asked Mr. Lansdowne if he had been drinking, whereupon the defendant

responded "Yes, I was on my boat all day". Asked why he was driving, the defendant

responded that the "pizza man made a mistake" and that his "girlfriend would not drive".

The deputy then asked the defendant to perform a series of road side screening tests,

such as the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test.

Defense counsel objected at trial as to the admissibility of the horizontal gaze nystagmus test on

two grounds. First, defense counsel argued said test should not be admissible, since same was

not made a part of the probable cause hearing. Second, defense counsel argues that said test

could not be admissible, since a Frey hearing was not conducted. The court reserved decision

on the admissibility of the horizontal gaze nystagmus test. Nevertheless, Deputy Terwilliger [*4]

testified that the defendant failed to successfully complete either the walk and turn test or the

one leg stand test. However, the defendant properly completed the counting test. The defendant

was detained pending arrival of the S.T.A.R. unit to perform the breath test.

The People then called Deputy Greg Whelehan, who testified as to being a certified

breath test operator. The People entered into evidence, without objection by the defendant, the

breath test operator's permit, the supporting deposition of the breath test administration, and the

certificate of calibration of the data master. The assistant district attorney then, after having

the witness identify same, offered the weekly check record into evidence. Defense counsel

objected on three grounds. First, because said document was not received by the defense until

the day of trial. Second, because failure to provide same prior to said date indicates that the

People were not ready for trial. Third, because said document was Rosario material, which

was not previously provided to the defense. The court reserved on said objection.

Next the People, after identification of same by Deputy Whelehan, offered a copy of the

Record of Analysis - Simulator Solution. At that time defense counsel objected on three

grounds. First, the document presented was not the original. Second, the document presented

did not conform to CPLR 4518( c ), in that same was not notarized. Third, the document did

was not in compliance with the Mertz ^[FN2] decision. Again, the court reserved on defense counsel's

motion.

On cross examination, the witness admitted that he had maintained a time log, which

indicated when he arrived at the scene. However, he further testified that same was never [*5]

provided to the defense. The defense counsel moved for preclusion of the testimony of the

breath test operator, because the time log of said deputy was Rosario material that should have

been turned over to the defense.

Deputy Terwilliger indicated on the Uniform Traffic Tickets that the arrest took place

at 11:02 P.M. on June 28, 2003. Deputy Whelehan testified that he performed the breath test at

11:50 P.M. The time set out on the "Supporting Deposition Breath Test Administration" was

11:49 P.M. Deputy Whelehan did not remember when he arrived at the scene, but testified

that it was prior to 11:15 P.M. He subsequently testified to performing the breath test at 11:50

P.M.

The people rested after presenting both sheriff deputies as their only witnesses. The

defense did not call any witnesses, and rested after the presentation of the People's case.

Issues Presented

Does the failure to provide certain breath test documents until the time of trial result in an

invalid statement of readiness by the People, requiring a dismissal of the charges for lack of a

speedy trial?

Should the People be sanctioned for providing breath test foundational documents

on the date of trial?

Is the horizontal gaze nystagmus test admissible without a Frey hearing having been

conducted?

Does a copy of the "Certificate of Photostatic Copy of Record of Analysis -

Simulator Solution" sufficiently comply with CPLR 4518( c ) so that a copy of the

"Certificate of Analysis 0.10% Breath Alcohol Simulator Solution" be admitted into [*6]

evidence?

Should the testimony of the Breath Test Operator be precluded because the People

failed to provide the time log of said deputy?

Legal Analysis

A. Motion to Dismiss on speedy trial grounds for failure to provide discovery.

The defense moved to dismiss the accusatory instruments herein, which charge the

defendant with Driving While Intoxicated in violation of VTL Sections 1192(2) and 1192(3)

based on the fact that the People failed to provide certain data master foundational documents

for the breath test machine utilized in this case within ninety days of the stating their readiness

for trial. The defendant was arrested on June 28, 2003. The people stated there readiness for

trial on July 9, 2003. CPL. Section 30.30(1)(b) requires the people to be ready for trial within

ninety days when at least one of the charges is a misdemeanor. The people did not provide some

of foundational documents in question until April of 2004. In addition, the "Breath Test

Instrument Weekly Check Record" was not provided until the next date set for trial, which was

November 12, 2004. "It is firmly established that the failure of a District Attorney to comply

with the mandates of CPL article 240 relative to discovery is in no way inconsistent with the

prosecution's continued readiness." People v. Caussade, 162 AD2d 4,8, 560 N.Y.S.2d 648 (2nd

Dept. 1990).

This then begs the question as to what constitutes readiness for trial? First, "It must be

kept in mind that CPL 30.30 is not a true speedy trial statute...." People v. Caussade, 162 AD2d

4,7, 560 N.Y.S.2d 648 (2nd Dept. 1990). It does not require that a trial take place with the

proscribed period of time. Instead it requires only that the People announce that they are ready [*7]

for trial within the time period required. See People v. Caussade, supra.

In People v. Kendzia (1985) 64 NY2d 331, 337, 486 N.Y.S.2d 888 the Court of Appeals

stated as follows:

"It is apparent ... that "ready for trial" in CPL 30.30 (1) encompasses two necessary elements. First, there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk ... or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record (cf. United States v New Buffalo Amusement Corp., 600 F2d 368, 373, n 6; Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 30.30, p 151).

The court went to say that

"The second requirement under the statute, ... is that the prosecutor must make his statement of readiness when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." People v. Kendzia, supra 337.

The second prong of the "readiness test", i.e. "present readiness" is somewhat more

difficult to define. However, the court in People v. Caussade, supra at page 8 stated that:

"While no judicial decision sets forth the specific requirements for a valid statement of readiness, review of the relevant case law in this area reveals that present readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial (cf., People v Colon, 59 NY2d 921; People v Sturgis, 38 NY2d 625), where the People have complied with their obligation to produce for trial a defendant in their custody (cf., People v Jones, 105 AD2d 179, affd 66 NY2d 529, 539- 540) and where the People have complied with all pending proceedings required to be decided before trial can commence (cf., People v McKenna, 76 NY2d 59)."

In the instant case, there is no question that the people satisfied the first prong of

the readiness test in that they announced readiness for trial within the required ninety day period

applicable to misdemeanors. CPL 30.30(1)(b). As far as the second prong is concerned, there [*8]

was a valid accusatory instrument for both VTL 1192(2) and 11992(3). There was no need by

the People to produce the defendant for trial, since he was not in custody. Lastly, the People

complied with all prior pre-trial proceedings, such as the probable cause, Huntley and Ingle

Hearings.

The statement of readiness made by the People in this matter was valid. Therefore the

defense motion requesting that the two charges of Driving While Intoxicated, in violation of VTL

1192(2) and 1192(3) be dismissed for failure of the People to make a valid declaration of their

readiness for trial in violation of CPL 30.30(1)(b), 30.20 and the 6th Amendment to the United

States Constitution is hereby denied.^[FN3]

B. Should the People be sanctioned for providing breath test foundational

documents on the date of trial?

C.P.L 240.70 provides the sanctions for failure to comply with a C.P.L. 240.20 request.

"Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction. "[T]he overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society" (People v Kelly, 62 NY2d 516, 520 [1984]). The appropriate sanction to be imposed is within the sound discretion of the trial court and is not to be disturbed unless it is determined that there has been an abuse of that discretion." People v. Jenkins (2002) 98 NY2d 280, 284, 746 N.Y.S.2d 651.

In the instant case there is no evidence of any kind that the failure to provide some of the

foundational documents relative to the breath test machine until the date of trial was in any way [*9]

prejudicial to the defendant. As a result, no sanctions should be imposed on the People. The

defendant's motion requesting preclusion of the breath test foundational documents because

they were provided on the date of trial is hereby denied.

C. Is the horizontal gaze nystagmus test admissible without a Frye ^[FN4] hearing having

been conducted?

During the People's direct case the prosecutor asked Deputy Terwilliger what types of

roadside tests were given to the defendant. Among the tests given to the defendant was

horizontal gaze nystagmus test (HGN test). The defense attorney objected to any testimony

relative to said test, because no Frye Hearing, establishing the scientific reliability of said test

had been conducted.^[FN5] The court reserved on said motion, and since it was a bench trial

provisionally allowed the testimony. In addition, the people provided no testimony from an

expert witness at trial concerning the reliability of said test.

A review of the law in this area requires that the court sustain the objection of

defense counsel. The people failed to lay the proper foundation for use of the HGN test

as evidence of any indicia of intoxication as a result of the ingestion of alcoholic beverages.

It has been held that "... the courts of our State have not conclusively determined that HGN is

generally accepted as reliable .... People v. Heidelmark, 214 AD2d 767,769, 624 N.Y.S.2d 656,

658 (3rd Department 1995). As a result, the People should have requested a Frye Hearing, in [*10]

the absence of such a demand by the defense, if they had intended to offer evidence of the results

of an HGN test. In the alternative, they should have presented an expert witness to testify as to

the test's reliability at trial. As a result, the objection of defense counsel is sustained and the

record is stricken of all evidence relative to the HGN test, because the proper foundation for said

test was not established. Certainly, testimony by Deputy Tewilliger relative to of the test's

general reliability was insufficient, since he is not an expert on that issue.

D. Does a copy of the "Certificate of Photostatic Copy of Record of Analysis -

Simulator Solution" sufficiently comply with CPLR 4518( c ) so that a copy of the

"Certificate of Analysis 0.10% Breath Alcohol Simulator Solution" be admitted into

evidence?

During the course of the trial the people offered a copy of the "Certificate of Analysis

0.10% Breath Alcohol Simulator Solution" into evidence. Same was marked for identification as

Exhibit 5. Defense counsel objected to same being entered into evidence, because the

"Certificate of Photostatic Copy of Record of analysis - Simulator Solution", i.e. "the

certification" did not bear an original signature of Director of the New York State Police Crime

Laboratories. CPLR 4518( c ) states in pertinent part that:

"All records, writings and other things referred to in sections 2306 and 2307 are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician."

E. Should the testimony of the Breath Test Operator be precluded because the

People failed to provide the time log of said deputy?

As part of the People's case, the prosecutor called Deputy Greg Whelehan, the

breath test operator, as their second witness. On direct examination, Mr. Rich inquired as to

when he arrived at the scene of the arrest. Deputy Whelehan testified that he arrived at about

11:15 P.M. on June 28, 2003. He further testified to administering the breath test at

approximately 11:48 P.M.

Upon cross-examination, defense counsel asked the deputy if he kept a time log, which

would indicate when he arrived at the scene. The deputy indicated that he did keep a log, but did

not bring same to court with him. Defense counsel indicated that he had never received a copy of

same. The deputy then testified on cross-examination that he was not sure when he arrived, but

that it was before 11:15 P.M. Defense counsel indicated that the arrest was alleged to have taken

place prior to 11:15 P.M. In fact both the supporting deposition of Deputy Terwilliger and the [*12]

Uniform Traffic Tickets indicate an arrest time of 23.02, i.e. 11:02 P.M. on June 28, 2003.

Defense counsel then moved for preclusion of the breath test operator's testimony, on the basis

of failure of the People to provide him with Deputy Whelehan's time logs, which would be

considered Rosario material.

"The Rosario rule, which is in actuality a discovery rule, applies to trial, and upon

request, to pre-trial hearings." Handing the DWI Case in New York, (2003-04 Edition) Section

28:2.

"CPL 240.45(1)(a) codified the holding of People v. Rosario, 9 NY2d 286,213 N.Y.S. 2d 448 .... The statute requires prosecutors to disclose to the defense (1) '[a]ny written or recorded statement' (2) 'made by a person whom the prosecutor intends to call as a witness at trial,' and (3) 'which relates to the subject matter of the witness's testimony'

(CPL 240.45[1][a] )." People v. Kelly, (1996) 88 NY2d 248, 251-252, 644 N.Y.S.2d 475,476-477.

As a result, Deputy Whelehan's time log must be considered Rosario material. Said

time log was never provided to the defendant at or prior to trial. The question then becomes

whether or not the People were in possession or constructive possession of the time log. This

Court holds that such a log maintained by a police officer called to testify is in constructive

possession of the people. The Court of Appeals in People v. Ranghelle, (1986) 69 NY2d 56, 64,

511 N.Y.S.2d 580, 585, stated as follows:

"As we observed in Rosario, 'the State has no interest in interposing any obstacle to the disclosure of the facts', and society's interest in maintaining criminal trials as truth-finding [*13]processes requires that the burden of locating and producing prior statements of complaining witnesses, filed with police agencies, remain solely with the People (see, People v. Rosario, 9 NY2d 286, 290, 213 N.Y.S.2d 448, 173 N.E.2d 881, supra)."

The ultimate question becomes, what sanction if any should be imposed on the People?

"When the People delay in producing Rosario material, the reviewing court must ascertain whether the defense was substantially prejudiced by the delay. When, however, the prosecution fails completely in its obligation to deliver such material to defense counsel, the courts will not attempt to determine whether any prejudice accrued to the defense. The failure constitutes per se error requiring that the conviction be reversed and a new trial ordered (see, People v. Perez, 65 NY2d 154, 159-160, 490 N.Y.S.2d 747, 480 N.E.2d 361, supra )." People v. Ranghelle, supra at 64, 585.

Conclusion

Based on the rulings set out above, the People have failed to sustain their burden of

proof beyond a reasonable doubt, pursuant to CPL 70.20, relative to the charge of Driving

while intoxicated, per se, as defined by VTL 1192(2). Therefore, that charge is hereby [*14]

dismissed.

The case is restored to the general calender on January 19, 2004 at 1:00 P.M. for a verdict

on the remaining charges of Operating Without a Seatbelt, VTL 1229( c )(3), Parking on the

Pavement, VTL 1201( c ) and Common Law Driving While Intoxicated, V.T.L. 1192(3).

This constitutes the decision and order of this Court.

Dated: Webster, New York

December 30, 2004

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice