After a jury trial had been scheduled, this court has been asked by defense counsel in limine to revisit its ruling in People vs. Krueger, 9 Misc 3d 950 in light of the United States Supreme Court's ruling in Melendez-Diaz vs. Massachusetts, 129 S.Ct. 2527, 174 L.Ed 2d 317 (2009) . Initially, this court held that records reflecting calibration of breath test machine and analysis of breath test simulator solution were non-testimonial hearsay admissible over confrontation clause objection under business records exception. The certifications to be submitted for the calibration/maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument are either testimonial or non-testimonial in nature. If testimonial, the People must bring in the analyst(s); if non-testimonial, the People may lay the basis for introduction of these records pursuant to CPLR Sections 4518 and 4540.

For the following reasons, this court holds the certifications to be non-testimonial records.

To understand Melendez-Diaz (cited Supra), one must revisit Crawford v. Washington, 541 US 36, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004). There, Michael Crawford stabbed Kenneth Lee and was arrested for assault and attempted murder. Crawford's wife was witness to the assault, but was prohibited from testifying against her husband at trial because of Washington's marital privilege under its Civil Procedure Law. Instead, the statement she gave the police was introduced against Crawford at his trial under the concept that her statement "bore [*2]particular guarantees of trustworthiness." [See Ohio vs. Roberts, 448 US 56, 100 S. Ct. 2531, 65 L.Ed 2d 597 (1980]. Crawford abrogates Ohio vs. Roberts and mandates that the only way the federal confrontation clause can be complied with is to present a live witness to be cross examined, unless the witness's statement was subject to previous cross examination by the defendant. Crawford maintains the framers of our Federal Constitution confrontation clause were trying to eliminate the evil of the civil law model of Criminal Procedure, particularly the use ofex parte examinations as evidence against the accused. The framers would not have allowed admission of testimonial statements of a witness who did not appear at trial.

It would be wonderful for the Trial Courts if our Appellate Courts would give us a "bright red line" we could follow in determining what was or was not testimonial. In its 27 page decision, Crawford presents three options. As indicated in Krueger, those possible definitions of "testimonial" statements were:

(1)"material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially";

(2)extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confession"; and

(3)"statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." id at 1364.

The Supreme Court deliberately left "for another day any effort to spell out a comprehensive definition of testimonial'." (p 1374 footnote 10) The Court does say that "where non-testimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the states flexibility in their development of hearsay law" (p. 1374).

New York State Business and Governmental records exceptions to hearsay are found in CPLR Sections 4518 and 4540. The Supreme Court's analysis of "Testimony" excludes some hearsay exceptions, such as business and official records (p. 1367). To hold otherwise would require numerous additional witnesses without any apparent gains in the truth-seeking process. After all, cross-examination is a tool to flesh out the truth, not an empty procedure. [See Kentucky vs. Stincer, 482 US 730, 737, 107 S. Ct. 2658, 96 L. Ed2d, 631 (1987)].

Now comes a 4-1-4 decision in Melendez-Diaz (supra ) and its prohibition of the use of an analyst's certificate to convict in a drug possession case. Massachusetts Law allows a lab chemist to test materials for drugs and to send in a sworn statement as to the identification of the drug and its weight. The sworn statements were submitted as prima facie evidence of what they asserted. Even New York Law would not allow this. The chemist is necessary as a witness to establish what he analyzed. [See eg People vs. Rogers, 8 AD3d 888, 780 NYS2d 393 (3d Dept. 2004)]. But, as this court asked in Krueger (supra ), do we need the technicians who calibrated the drug testing machine or microscope which the chemist used to testify?

Melendez-Diaz does not shed any more light on a definition of testimonial unless you incorporate the concurring opinion of Justice Thomas whose 5th vote makes the majority, the majority. He limits extrajudicial statements to "formalize testimonial materials such as affidavits, depositions, prior testimony or confessions." (p 2543). [*3]

Melendez-Diaz does reaffirm the Supreme Court's position regarding business records. "As we stated in Crawford most of the hearsay exceptions cover statements that by their nature were not testimonial - for example, business records or statements in furtherance of a conspiracy'." 541 US at 56, 124 S. Ct. 1354. "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because - having been created for the administration of an entity's affairs and not testimonial." (pp 2239-2540). Justice Scalia specifically states to the dissent that "we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample or accuracy of the testing, must appear in person as part of the prosecution's case ... Additionally, documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records." (See Footnote 1 p. 2532).

This court is aware of the recent decision of the Watertown City Court in People v. Carreira (Jan 12, 2010) 2010 WL 254901 to the contrary. We are not bound by it and find its rationale not in concert with most New York Courts (See People vs. Kelly, 2009, WL 5183779 (NY City Crim. Ct.), 2009 N.Y.Slip Op. 52664(U) (Dec. 22, 2009) People v. Brooks, 21 Misc 2d 1132(a) (Bronx Co. Sup.(2008) People v. Lebrecht, 13 Misc 3d 45, (App. Term 9th and 10th Jud Dist. 2006); People v. Krueger, 9 Misc 3d 950, (Lockport Just. Ct. 2005); People v. Fisher, 9 Misc 3d 1121(A) (Rochester City Ct. 2005) People v. Mellott, 10 Misc 3d 1056(A) (Webster Justice Ct. 2005); Green v. DeMarco, 11 Misc 3d 451, (Monroe Co. Sup. Ct. 2005); People v. Kanhai, 8 Misc 3d 447, (Queens Co.Crim Ct. 2005). See also Handling the DWI Case in New York, Part XI, Evidence Issues, §4325 "Effect of Crawford v. Washington on admissibility of documents" (West 2009); Federal Evidences 8:91, Public records - Forensic laboratory reports (2009); Wright & Miller: Federal Prac. & Pros. s. 6371.2, Crawford: Botts Dots or Needless Detour? (2009); Expert Evidence and the Confrontation Clause after Crawford v. Washington, 15 J.L. & Pol'y 791, 862 (2007) and Bronx County Supreme Court Calibration Reports Are Not Testimonial, Qualify as Admissible Business Records. In addition, even business records devised primarily for litigation receive business record protection so long as they have a secondary business purpose. See, e.g., Green v. DeMarco, 11 Misc 3d 451, 462 (citing People v. Foster, 27 NY2d 47, 52 (1970)); People v. Kanhai, 8 Misc 3d 447.^[FN1] Therefore, this court will not hold that they cannot be considered per Melendez-Diaz typical business records.

Accordingly, the certifications for the calibration/maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument will be allowed to be admitted at trial pending a proper foundational basis being established pursuant to People vs. Freeland, 68 NY2d 699, 700, 506 NYS2d 306, 497 NE2d 673 (1986). [*4]

Dated:

Lockport, New York

__________________________________

Hon. Leonard G. Tilney, Jr.

Lockport Town Justice