The defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192(4), Driving While Ability Impaired by Drugs as an Unclassified Misdemeanor.

From March 31, 2008 through April 3, 2008, this Court presided over a Jury Trial regarding this matter. The People called five (5) witnesses at trial: Sergeant Michael Shea of the Nassau County Police Department, Detective Dennis Polizato of the Nassau County Police Department, Dr. Lee Blum, Robert Cirocco, and Sara Dicandilo. After the People rested, the defendant made a motion for a Trial Order of Dismissal. The People contested the defendant's motion. The basis of the defendant's motion was the failure of the People to have the defendant's urine test results admitted into evidence, thereby failing to establish a prima facie case against the defendant. The People argued that the urine test results should have been received into evidence. The defendant's motion for a Trial Order of Dismissal was granted by this Court.

SUMMARY OF THE TRIAL TESTIMONY

On October 19, 2005, at 10:00 a.m., a civilian witness, Robert Cirocco, called 911 from his mobile phone and reported that he observed another vehicle operating in an erratic manner on Wantagh Avenue, in Levittown, County of Nassau, State of New York. He pulled the other vehicle over and waited for the Police to arrive. Sergeant Shea of the Nassau County Police Department arrived at the scene shortly thereafter.

Sergeant Michael Shea testified that he spoke with the civilian witness and the defendant, Donna Levy. During his conversation with the defendant, Sgt. Shea noticed that she appeared nervous and disheveled. Sgt. Shea also testified that the defendant was unsteady on her feet and seemed impaired in some way. As a result of the defendant's appearance, Sgt. Shea requested that [*2]the defendant submit to Standardized Field Sobriety Tests (S.F.S.T.). Sgt. Shea explained that S.F.S.T. are divided attention tests which are used nationwide by Police departments to determine if someone is intoxicated or impaired by drugs. After observing the defendant's performance on the S.F.S.T., Sgt. Shea arrested the defendant for Driving While Intoxicated and brought her to the Central Testing Section of the Nassau County Police Department in Mineola for processing and testing.

Sgt. Shea testified that upon arriving at Central Testing he requested that the defendant submit to a chemical test of her breath to determine the level of alcohol in her blood. The defendant consented to the breath test and the breath test was administered to the defendant. The defendant's blood alcohol level was found to be 0.00%.^[FN1] Sgt. Shea requested that the defendant submit to a urine test to determine what, if any, drugs were in her blood. The defendant consented to the urine test. The defendant went into a bathroom with a female Police Officer and an empty urine container. When the defendant came out of the bathroom, the urine container was filled with a liquid.^[FN2] Sgt. Shea testified that he sealed the urine container with red evidence tape and affixed to it a label with the defendant's name. The urine container was later brought by Sgt. Shea to the Police lab and locked in the Toxicology refrigerator.

Detective Dennis Polizato testified that he is a thirty-five year veteran of the Nassau County Police Department assigned to the Scientific Investigations Bureau. On November 2, 2005, he moved a urine container, which was sealed with evidence tape and labeled "Donna Levy," from the Toxicology refrigerator to the Toxicology freezer. On December 7, 2005, he removed the urine container which was sealed with evidence tape and labeled "Donna Levy" from the Toxicology freezer, placed it in a box with eleven other urine samples, and mailed the box via Federal Express to the National Medical Services Laboratory (N.M.S.) in Pennsylvania for testing. During his direct testimony, Detective Polizato was shown a urine container labeled "Donna Levy" and asked if he recognized it. He testified that he did recognize it as the urine container labeled "Donna Levy" that he had taken out of the Toxicology freezer and mailed to N.M.S. along with eleven other urine samples on December 7, 2005. Detective Polizato testified that there were different labels on the container than those that were present when he last saw the urine container. Additionally, he testified that there was parafilm around the container which had not previously been there. Detective Polizato also testified that he was unable to determine if the evidence tape had been broken. Upon conclusion of Detective Polizato's testimony, the People attempted to admit the urine container into evidence. This Court sustained the defendant's objection to the admission of the urine container at that time based on the People's failure to properly establish the foundational requirements for evidentiary admission of the urine container. The People failed to ask Detective Polizato any further [*3]questions.

The People next called Dr. Lee Blum. Dr. Blum testified that he is a Toxicologist with N.M.S. He stated that N.M.S. is a privately owned Toxicology laboratory in Pennsylvania that tests biological fluids, tissues, blood, urine and other tissues for drugs. N.M.S. receives thousands of specimens from around the Country for testing and is certified by the New York State Department of Health as well as by numerous other states. After outlining his extensive credentials in the field of Forensic Toxicology, this Court deemed Dr. Lee Blum an expert in the field of Forensic Toxicology. Dr. Blum testified about the normal procedures which N.M.S. follows regarding the receiving and testing of urine samples.

Dr. Blum testified that based on his review of N.M.S. records, on December 8, 2005, N.M.S. received a urine container labeled "Donna Levy," from the Nassau County Police Department for the purpose of testing it for drugs. Dr. Blum was unable to specifically testify as to the condition of the evidence seal on the urine container labeled "Donna Levy" when it was received at N.M.S. He testified that normally an evidence seal is in tact when it is received at N.M.S. The evidence seal would then be broken after N.M.S. receives the urine container so that a small sample of urine can be withdrawn from the urine container, placed in a separate test tube, and subsequently tested.

During his direct examination, the People had a voluminous N.M.S. case folder marked for identification and shown to Dr. Blum. The N.M.S. case folder contained over three hundred pages. Dr. Blum identified the entire case folder as a "litigation package" which contained all of N.M.S.'s paperwork regarding the results of all of the tests performed by various individuals at N.M.S. on the sample drawn from a urine container labeled "Donna Levy." Dr. Blum testified that both "presumptive" and "confirmatory" tests were performed on the urine sample labeled "Donna Levy." Dr. Blum indicated that the presumptive tests were performed by Leonard Vinci, and the confirmatory tests were performed by Kenita Johnson. Dr. Blum also stated that his review of the documents in the N.M.S. litigation package revealed that an additional unidentified test was performed by Parlel Shah. Dr. Blum testified that the extent of his involvement with this case was reviewing the N.M.S. litigation package regarding the case (which included the urine test results and findings of Leonard Vinci, Kenita Johnson and Parlel Shah) and preparing a final summary report regarding the results of all of the tests performed on the sample.

Dr. Blum testified that all of the documents in the litigation package were business records prepared and maintained by N.M.S. in their ordinary course of business. The N.M.S. litigation package also contained a N.M.S. document which summarily stated that "chain of custody has been satisfied by N.M.S." The People then moved to admit the entire N.M.S. litigation package containing all of N.M.S.'s documents and findings into evidence as a "business record." This Court sustained the defendant's objection to the admission of the litigation package into evidence. The People then attempted to separately admit the summary report generated by Dr. Blum into evidence. As stated above, Dr. Blum's summary report was his written summary of the various urine test results and findings by Leonard Vinci, Kenita Johnson and Parlel Shah. This Court sustained the defendant's objection to the admission of Dr. Blum's summary report. [*4]

The People next had Dr. Blum shown the urine container labeled "Donna Levy." Dr. Blum identified the urine container as one received by N.M.S. since it contained a label with a N.M.S. computer number affixed. The People moved to have the urine container labeled "Donna Levy" admitted into evidence. This Court sustained the defendant's objection to the admission of the urine container into evidence. The People then concluded their direct examination of Dr. Blum, requested that they be permitted to recall him if necessary, and requested a continuance of the trial to bring in additional witnesses to establish the foundation necessary for the admission of the urine container and the urine sample test results. This Court granted the People leave to recall Dr. Blum and granted the People a continuance of the trial in order to bring in additional witnesses.

The People next called Sara Dicandilo. Ms. Dicandilo testified that she is employed by N.M.S. as a Forensic Specimen Processor. Ms. Dicandilo stated that she is responsible for receiving and organizing approximately five hundred urine samples which she receives in the mail each day. She testified that once received, she visually inspects each urine container and notes the condition of each urine container in a log. Ms. Dicandilo then breaks the seal on each urine container, withdraws a small sample from each urine container using a pipette, and places the sample into test tubes which are marked with a N.M.S. coded number and stored in a refrigerator for subsequent testing by other individuals at N.M.S. The remaining liquid in the urine container is not tested, but rather, is kept in its original container and placed in a separate refrigerator for return to the sending agency. Ms. Dicandilo testified that she has no further involvement with the urine containers, the test tubes containing the sample, or the testing process.

Ms. Dicandilo testified that on December 8, 2005, she received a number of urine containers filled with liquid from the Nassau County Police Department. During her direct, Ms. Dicandilo was shown the urine container labeled "Donna Levy,"and indicated that she recognized it as one of the urine containers which she received on December 8, 2005. The basis of her recognition was that the N.M.S. label affixed to the urine container corresponded to one which her log reflected she had received on that date. Ms. Dicandilo testified that her log indicated that the urine container was sealed when she received it. She testified that she broke the seal, removed a small sample from the urine container, and placed the sample into separate test tubes using a pipette. She labeled the test tubes with a N.M.S. numbered label and placed the test tubes in a N.M.S. refrigerator. That was the end of her interaction with the urine container labeled "Donna Levy." She had no further contact with the test tubes containing the sample which she placed in the N.M.S. refrigerator. The People moved to have the urine container labeled "Donna Levy" admitted into evidence. The defendant objected. This Court admitted the urine container into evidence over the defendant's objection.

Once the urine container was admitted into evidence, the People recalled Dr. Blum to testify. Dr. Blum again described in detail the tests that are generally performed on urine samples and the interaction of various N.M.S. chemists, technicians and doctors with these samples. Dr. Blum was shown the urine container labeled "Donna Levy." He testified that there was a numbered N.M.S. label on the urine container that corresponded to a sample which was tested at N.M.S. by Leonard Vinci, Kenita Johnson and Parlel Shah. Dr. Blum reiterated that his summary report was a compilation of the tests performed on the sample withdrawn from the "Donna Levy" urine container. [*5]He indicated that although he was not involved in any of the testing regarding the urine sample, he acted in a general supervisory capacity for all of the tests performed throughout the entire N.M.S. building. Dr. Blum testified that he had no personal knowledge regarding the tests performed on the sample from the urine container labeled "Donna Levy." The People again moved to admit the three hundred page N.M.S. litigation package into evidence as a "business record." This Court sustained defendant's objection to the admission of same and denied the People's application.

The People next sought admission of Dr. Blum's summary report. This Court sustained defendant's objection to the admission of Dr. Blum's report and denied the People's application. The People then rested without calling any additional witnesses from N.M.S. and without the urine test results being admitted into evidence.

The People's failure to properly establish the foundational requirements for admission of the urine test results is fatal in the prosecution of a Driving While Impaired by Drugs case. Therefore, defendant's motion for a Trial Order of Dismissal must be granted.

Chain Of Custody

The People established a chain of custody with respect to the urine container from the point that Sgt. Shea received the urine container from the defendant until the point when the urine container was received at N.M.S. Testimony was elicited that Sgt. Shea received the urine container from the defendant, sealed it, labeled it, and put it into the Toxicology refrigerator. Next, Detective Polizato retrieved the urine container from the Toxicology refrigerator in the same exact physical condition that it was left in by Sgt. Shea. Detective Polizato then mailed the urine container to N.M.S. Ms. Dicandilo testified that she received the urine container in the mail at N.M.S. in a sealed condition. She unsealed the urine container and removed a sample from the urine container using a pipette. That sample was placed by her into test tubes, labeled, and placed in a N.M.S. refrigerator (hereinafter referred to as the "test tube samples.") The original urine container was then resealed and kept separate to be returned to the Nassau County Police Department. Ms. Dicandilo identified the urine container, which she was shown in Court, as the same urine container which she received at N.M.S., opened, removed a liquid sample from and resealed. She identified it as being in the same exact sealed condition that it was in the last time she handled it. Hence, based on the testimony of Ms. Dicandilo, together with the testimony of Sgt. Shea and Detective Polizato, the chain of custody regarding the urine container was established and the urine container was admitted into evidence.

However, although the People established a chain of custody with respect to the original urine container, the People failed to establish any chain of custody regarding the sample that was removed from the urine container by Ms. Dicandilo and allegedly tested. The fact that the People admitted into evidence the original urine container did not satisfy the chain of custody with respect to the test tube samples. Moreover, the People failed to call any witnesses to explain what happened [*6]with the test tube samples after they were placed into the N.M.S. refrigerator by Ms. Dicandilo. No witness testified that the test tube samples were ever removed from the N.M.S. refrigerator. If they were removed, no witness testified when the test tube samples were removed, by whom, and in what condition. The admission of the People's evidence at trial consisted of an untested urine container. As a direct result of the People's failure to establish a chain of custody with respect to the test tube samples which were allegedly tested, the urine test results could not be admitted into evidence.

Further, the problems with the chain of custody regarding the test tube samples are exacerbated by the fact that there was no specific testimony as to the alleged testing of the samples. No witness with personal knowledge testified that the test tube samples were ever tested. No witness testified how the test tube samples were tested or how any of the test results were obtained. No witness testified that the rules and regulations of the Department of Health with respect to the testing were followed, as required by Vehicle and Traffic Law Section 1194(4)( c). The only witness called by the People regarding this issue was Dr. Blum. Dr. Blum only testified how urine tests are generally performed at N.M.S. Dr. Blum did not personally perform any tests with respect to this case, nor was he present when any tests were performed. Importantly, Dr. Blum could not testify that the test results which he reviewed were in fact of the test tube samples drawn by Ms. Dicandilo. Dr. Blum's summary report and his related testimony was based exclusively on written documents generated by various people at N.M.S. who were not produced and not subject to cross-examination.

The People maintain that the testimony of Dr. Blum should satisfy the foundation requirements for the admission of the urine test results. To the contrary, this Court finds that it was incumbent upon the People to present testimony and direct evidence during the trial regarding the specific urine tests performed in this case. This Court holds that generalized testimony as to how urine tests are normally performed given by a testifying witness having no personal knowledge pertaining to how the tests were actually performed on the urine sample in question is insufficient as a matter of law to justify the admission of urine test results into evidence.

The People attempted to overcome the chain of custody insufficiencies and the failure to call the appropriate witnesses to properly introduce the alleged urine results, by offering into evidence the voluminous N.M.S. litigation package containing alleged urine test results. The People contend that chain of custody was established since the litigation package contained a one page written document which stated that "chain of custody was followed by N.M.S." This Court finds that a piece of paper summarily stating that "chain of custody has been followed," without more, is insufficient to establish same in a Court of Law where a defendant is being prosecuted for a criminal offense. Accordingly, this Court holds the People's failure to establish the requisite chain of custody regarding the test tube samples, together with a complete failure to present any direct testimony regarding the tests allegedly performed, precludes the admission into evidence of the defendant's alleged urine test results.

Business Records

Next, notwithstanding the fact that the three hundred page N.M.S. litigation package was [*7]replete with hearsay and irrelevant documents, the People argue that the voluminous N.M.S. litigation package should be admitted into evidence as a "business record."

The People contend that their position is supported by the recent New York Court of Appeals decision in People v Rawlins and People v Meekins,10 NY3d 136 [2008]. The defendant argues that the admission of the urine test results violates her right of confrontation established by the Sixth Amendment to the United States Constitution. The defendant asserts the urine test results should not be admitted into evidence unless the person who performed the urine tests is available to be cross-examined. This Court refuses to accept what it finds to be the People's attempt to circumvent the evidentiary foundation requirements for the admission of defendant's urine test results.

The Confrontation Clause of the United States Constitution requires that defendants be able to confront and cross-examine witnesses against them. The Sixth Amendment to the Constitution, commonly referred to as the "Confrontation Clause" provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI. In addition, the United States Supreme Court in Crawford v Washington, 541 US 36 [2004], held that "testimonial" evidence could not be admitted unless the declarant was unavailable to testify at trial, and there had been a prior opportunity for cross-examination. Thereafter, in Davis v Washington, 547 US 813 [2006] the Court elaborated on Crawford by emphasizing that each case is fact specific and requires a fact intensive inquiry and scrutiny when evaluating the confrontation question.

New York's business record exception to the hearsay prohibition, C.P.L.R. § 4518(a), provides: "Any writing or record, whether in the form of an 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 after." This exception permits a business record to be admitted into evidence under appropriate circumstances, but categorical exemption of business records is a "fundamental misread[ing] of Crawford" see People v Rawlins/Meekins, (wherein the Court "hasten[ed] to warn against the convenient danger of relying on a hearsay exception particularly business records, and the breadth of that exception in New York as a proxy for the statement's reliability when the real inquiry concerns whether a statement is testimonial"). Therefore, although business records may be admitted into evidence, there is no per se requirement that business records be admitted into evidence without limitation or redaction. In fact, business records which are irrelevant, contain hearsay, or are prejudicial, are properly excluded from evidence.^[FN3]

The business record exception has been used as a tool to obviate, in certain circumstances, [*8]the need to meet the strict formal requirements of the rules of evidence regarding the admission of various documents. For example, certified copies of simulator solution certifications and calibration/maintenance records of breath test instruments are regularly and routinely admitted into evidence in Driving While Intoxicated cases as business records without the People calling the witnesses who performed the calibration and testing (see People v Mertz, 68 NY2d 136, 147-148 [1986]; People v Lebrecht, 13 Misc 3d 45 [Justice Court 2006]).

Similarly, in People v Freycinet, 41 AD3d 731 [2d Dept 2007], lv granted 9 NY3d 922 [2007], affirmed 11 NY3d 38 [June 26, 2008]) a redacted autopsy report was considered non-testimonial in that it generally presented an objective account of the facts concerning what happened to the victim in question. The autopsy report involved in the Freycinet case did not directly link the defendant to the crime, and thus, was accepted by the Court as a business record. In a recent decision by the Second Department, the Court, citing Freycinet, held that the defendant, who was convicted after a jury trial of murder in the second degree and other charges, was not denied his Sixth Amendment right to confrontation when the trial court admitted testimony based on the non opinion portions of an autopsy report without the testimony of the medical examiner who prepared the report (see People v Dowling, 50 AD3d 698 [2d Dept, April 1, 2008]). The rationale for this admission is that these types of documents are perfunctory, non-accusatorial, and not testimonial in nature, and thus the admission of same as business records without the testimony of the underlying witnesses does not violate the Confrontation Clause of the Constitution.

However, such evidentiary liberties have not been extended to actual test results. For example, blood test results have been held to be testimonial in nature where the "test was initiated by the prosecution and generated by a desire to discover evidence against [the] defendant" (People v Rogers, 8 AD3d 888, 891 [3d Dept 2004]).^[FN4] In Rogers the defendant was charged with rape and the police had requested a blood test from the victim to test her blood alcohol level, which was relevant to her capability to consent. The trial court's decision to admit the report containing the results of this test as a business records was held to be error by the Appellate Division, who held that the document was testimonial and triggered the right to confrontation in that it was prepared for law enforcement for the purpose of prosecution (see id. ["documents prepared for litigation lack the indicia of reliability necessary to invoke the business records exception to the hearsay rule"]). It is this Court's opinion that cases involving the prosecution of the defendant based solely on breath reading results, blood test results, urine test results, ballistic test results, and drug test results require the testimony of live witnesses since such evidence is not perfunctory and is certainly accusatory.

In the Rawlins/Meekins cases, the Court of Appeals opined that a bright line rule did not apply in determining whether law enforcement records were "testimonial" for confrontation clause purposes. In Rawlins, the defendant was convicted of numerous commercial burglaries. The Court of Appeals held that latent fingerprint reports prepared by a police officer, offered to establish a [*9]defendant's identify in a burglary prosecution, were testimonial — thereby triggering the right to confrontation. In Meekins, the defendant was tried and convicted of first degree sodomy based on a DNA comparison. The Court of Appeals ruled that the DNA comparison reports generated by the independent private laboratory (under contract with the N.Y.P.D.) containing results of DNA testing conducted on samples taken from the victim's rape kit, were not testimonial — thereby not triggering the right to confrontation.

The People's reliance on the Rawlins/Meekins decision to support their position that an out of state laboratory test of defendant's urine should be uniformly admitted into evidence as a business record is misplaced. The Court of Appeals clearly established that the results of tests which are accusatorial and which go to the guilt or lack of guilt of the defendant do not come into evidence as business records. Moreover, central to the Court of Appeals' decision was that trial courts must make an individualized determination whether the offered report is a "surrogate for accusatory in-court testimony," if so, then it violates Crawford. In the case before this Court, the results of the urine tests are both testimonial and accusatory - since positive urine tests results - combined with the testimony regarding the defendant's operation of her vehicle, would result in the defendant being found guilty of Driving While Impaired by Drugs. As such, this Court's ruling is in line with the Court of Appeals' decision in Rawlins/Meekins by holding that the defendant's alleged urine report is testimonial and its introduction into evidence would certainly violate the Confrontation Clause of the Constitution.

To accept the People's reasoning for admission of the defendant's urine results under the business records exception to the hearsay rule would defy the reasoning of the Court of Appeals in Rawlins/Meekins and essentially permit documentary evidence to be admitted wholesale just because it fits a "business records" criteria. Moreover, if the urine tests result were admitted into evidence as a business record, then an Intoxillyzer breath card in a Driving While Intoxicated case would come into evidence as a business record without a witness to testify as to how the test was performed and how the result was obtained. Similarly, the results of a blood test in a Driving While Intoxicated case would also come into evidence as a business record without satisfying the specific requirements of Vehicle and Traffic Law Section 1194. This reasoning could then be extended to cases where a complainant's supporting deposition would come into evidence as a business record without the complainant even appearing in Court to testify. Ultimately, if the Court adopted the People's reasoning, prosecutions could be based solely on sworn statements and paperwork and not live witnesses.

This Court will not stretch the foundational requirements for the admission of evidence, and will not bypass the explicit provisions of the Sixth Amendment to the Constitution. For the aforesaid numerous reasons, the defendant's urine test results in this case can not be admitted into evidence, and certainly not as business records. Accordingly, this Court grants the defendant's motion seeking a Trial Order of Dismissal.

This constitutes the opinion, decision and Order of this court. [*10]

Dated: September 15, 2008

ENTER:

NORMAN ST. GEORGE

____________________________________

Norman St. George

County Court Judge

Acting Supreme Court Justice