Defendant is charged with one count of Driving While Ability Impaired by Alcohol pursuant to New York State Vehicle and Traffic Law Section 1192 (1). During the course of consolidated pre-trial hearings and non-jury trial, defense objected to the prosecution's admission of the certified calibration records and simulator solution certificates; the challenged documents relate to the "Alcotest 7110 MKIII C" breath test instrument used to test defendant's blood alcohol level at the time of his arrest. The defense challenge was made on the grounds that admission of those business records without testimony of the analyst who created them violates the Confrontation Clause of the US Constitution pursuant to Crawford v. Washington, 541 US 36 (2004) and Melendez-Diaz v. Massachusetts, __US__, 129 S.Ct 2527 (June 25, 2009). The Court reserved decision on the application pending completion of the People's case, at which time the Court granted both parties the opportunity to submit memoranda of law in support of their respective positions. The Court has considered those several submissions by counsel in [*2]concluding that, for the following reasons, the certified calibration records underlying the Alcotest are admissible and do not violate the Crawford/Melendez-Diaz rule.

Crawford held that, because the United States Constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him," U.S. Const. Amend.VI, the practical application of the Confrontation Clause prohibits the introduction of out-of-court statements which are "testimonial" in nature, unless the defendant had an opportunity to cross-examine the declarant. Crawford dealt with actual statements made by a witness during a police interrogation — "testimonial" under any circumstances. Crawford "left for another day" the effort of formulating a "comprehensive definition of [the term] testimonial," but it acknowledged that such refusal to articulate a comprehensive definition will "cause interim uncertainty." Id., at 68.

Records similar to those challenged in this case have been admitted routinely for years in New York State drunk driving cases, if properly authenticated, under the New York State business records exception to the hearsay rule. CPLR Sec. 4518. Most New York courts examining the issue in light of Crawford still held those records to be non- testimonial, and therefore admissible without live testimony pursuant to the proper authentication under the CPLR. See, e.g., People v. Lebrecht, 13 Misc 3d 45 (App.Term 2d Dep't, 2006); People v. Stevenson, 21 Misc 3d 128A, 2008 WL 4344902, NY Slip Op. 51933U (App.Term 1st Dep't, 2008)(unpublished decision); People v. Brooks, 12/1/2008 NYLJ 20, col. 3 (Bronx Cty Sup.Ct.); People v. Kanhai, 8 Misc 3d 447 (Queens Cty Crim. Ct, 2005); Green v. DeMarco, 11 Misc 3d 451 (Monroe Cty Sup. Ct, 2005); but cf,. People v. Orpin, 8 Misc 3d 768 (Justice Ct. Town of Irondequoit, 2005).

Addressing the business records hearsay exception in 2008, the New York Court of Appeals also cautioned against the categorical exclusion of business records as a fundamental misreading of Crawford. People v. Rawlins/People v. Meekins, 10 NY3d 136 (2008), 149-150, cited in People v. Brooks, supra . In a thorough analysis remarkably similar to that in Melendez-Diaz, Rawlins/Meekins declined to adopt a "bright line rule" admitting business records without testimony, as "facts and context are essential[, and t]he question of testimoniality requires consideration of multiple factors, not all of equal import in every case." Id., at 156. Four days after issuing the Melendez-Diaz decision, the Supreme Court denied certiorari in Meekins. 129 S.Ct 2856 (June 29, 2009).

Melendez-Diaz v. Massachusetts sought to clarify that Crawford extended beyond merely out-of-court statements by witnesses. The Supreme Courtheld that admission of analysis certificates of certain types of scientific tests violates the Confrontation Clause, if admitted in lieu of live testimony with no opportunity for cross-examination by a defendant. Justice Scalia, writing for the majority, reasoned that where a report is prepared with a reasonable expectation that it will later be used at trial, and sets forth facts helpful to the prosecution, which are sought to be proved at the trial, it must be considered testimonial and therefore cannot be admitted as a business record. Id.,at 2531-2. Melendez-Diaz involved a lab report certifying that a substance was cocaine, along with its weight, the very fact the prosecution was required to prove. Further, the certified lab report was clearly prepared for the case, and the preparer of the report did not [*3]testify.

Though courts must protect against constitutional violations even to the detriment of efficiency and thrift, Melendez-Diaz, supra at 2540, the Supreme Court also refused to adopt a bright-line rule: Justice Scalia explicitly exempted calibration reports and simulator solution samples from the reach of the ruling. He stated that, "[c]ontrary to the dissent's suggestion 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 device, must appear in person as part of the prosecution's case documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records." Id., at 2532 [emphasis added] (hereinafter referred to as "Footnote 1"). See also, Joseph McCormack, "Does Melendez-Diaz Bar the Admission of the Calibration Reports of DWI breath Testing Instruments?", Empire State Prosecutor, Fall 2009.

Justice Scalia acknowledged a legitimate concern of prosecutors faced with potentially higher costs and overburdened staff but insisted that the rule will not be as burdensome as many fear. Id. Part of the reason this is so, he stated, is that many states have already adopted the constitutional rule announced in Melendez-Diaz: "Today's decision will not disrupt criminal prosecutions in the many large states whose practice is already in accord with the Confrontation Clause". Id., 2541. The thorough, two-pronged analysis underwent by the Court of Appeals in Rawlins/Meekins shows that New York is one of those states, and cases following the reasoning certainly are still valid. See, e.g., Andrew C. Fine, "The United States Supreme Court Extends Crawford Principles: Melendez-Diaz v. Massachusetts and Its Impact on New York Law", NYSBA Criminal Law Newsletter, Vol. 8, No. 1, Winter 2010; People v. Stevenson, supra ; People v. Lebrecht, supra .

On November 19, 2009, the New York Court of Appeals held decisively that, "consistent with Melendez-Diaz", the admission of a DNA report prepared at the time of the crime but years before defendant was even identified or arrested, which report was later compared with the defendant's DNA sample for charging and prosecution purposes, was non-testimonial in nature and did not violate defendant's confrontation clause rights. People v. Brown,13 NY3d 332, at 341. The evidence linking Brown's DNA to the crime (the ultimate issue in the case) was provided by the actual analyst who testified at the trial and was cross-examined about the report, its procedures and its reliability. She was familiar with the protocols used in the challenged underlying report, which was prepared prior to the arrest of the defendant in that case. The witness did not prepare the underlying report. Brown held that the underlying report came within the purview of Melendez-Diaz Footnote 1, because it consisted of machine generated and numerical data, with no conclusions or interpretations.

Post-Melendez-Diaz, several courts have decided the issue regarding the same types of records challenged in the case at bar. People v. Kelly, 26 Misc 3d 1205A (unpublished decision, NYC Crim. Ct., December 22, 2009); U.S. v. Forstell, 656 F.Supp. 2d 578 (E.D.Va., August 18, 2009). People v. Carreira, 2010 NY Slip Op. 20014 (Watertown City Ct., January 12, 2010); People v. Heyanka, 25 Misc 3d 978 (Suffolk County Dist. Ct., August 19, 2009). Kelly and [*4]Forstell acknowledge Footnote 1 in specifically holding that calibration and simulator solution certificates are non-testimonial and admissible as business records if properly authenticated. In both cases, the breath test instrument operator testified as to his conduct of the test and the results. Both cases reasoned that calibration and simulator solution certificates, even though they are affidavits, are prepared in the regular course of routine equipment maintenance and do nothing more than verify the accuracy of the testing devices and equipment used by the police, Forstell, supra , 581; moreover, they are not prepared specifically for the prosecution of any particular defendant, and usually (as in this case) predate the arrest of the defendant. Kelly, supra .

Heyanka, cited by defense, and Carreira come to the opposite conclusion from Kelly and Forstell. Neither decision makes clear whether or not the author of the breathalyzer report testified at the trial, but each case ignores Footnote 1 and Melendez-Diaz' clear exemption of certain records from the Crawford requirement. These two cases extend Melendez-Diaz beyond its stated scope, to all "certificates of laboratory analysts, without the testimony of the analysts themselves". Heyanka, supra . Significantly, Carreira admits "the Court's decision contradicts most other New York courts which have considered this issue [citations omitted]". Nonetheless, the Carreira court was "comfortable extending protections to the documents in question." Id.

This Court declines to extend Crawford and Melendez-Diaz. The challenged business records in the case at bar are similar to those held admissible as business records in Brown, Kelly, Forstell, Lebrecht, Stevenson, Brooks, Kanhai, and Green v. DeMarco, supra . The instant records are qualitatively dissimilar from the report at issue in Melendez-Diaz, where the author of the challenged test did not appear to testify and be cross-examined, and the test provided evidence on the ultimate question of defendant's guilt.

First, in this case, the calibration and simulator solution records were prepared not in anticipation of the prosecution of this particular defendant, but as relating to the regular maintenance of this particular Alcotest machine and chemical samples. See ,e.g., Brooks, supra . Melendez-Diaz' specific limitation in Footnote 1 recognizes that it would be reductio ad absurdum to require live testimony from every witness who has laid hands on a case. Underlying records of breath test instruments, like those here, are attenuated from the direct fact of defendant's intoxication and guilt of this charge. They do not prove or even show what his blood alcohol level was at the time of his arrest.

Second, Trooper Kalarchian, the arresting officer, is a New York State Police certified breath test operator who actually conducted the blood alcohol test used at trial to prove the ultimate issue. He testified thoroughly as to the procedures and safeguards he conducted prior to, during and after the test of defendant's breath. He collected, analyzed and testified to the actual evidence contained in the Alcotest report of defendant's blood alcohol level. The proper operation and functioning of the machine was part of his testimony based on his training and experience. The ministerial reports admitted as business records were merely background to, and confirmed by, his testimony. Kalarchian and his procedures were subject to cross-examination. Last, he laid the proper foundation to admit the documents as business records under the CPLR. The rights guaranteed to defendant by the Confrontation Clause have [*5]not been violated.

Based upon the foregoing, this Court holds that calibration and simulator solution certificates of breath test instruments are non-testimonial and specifically exempt under Melendez-Diaz, and their admission here, based on the appropriate business record foundation, did not violate the Confrontation Clause.

Ordered, that defendant's motion for a Trial Order of Dismissal is denied. All parties are to appear on March 3, 2010 for further proceedings consistent with this Order.

Dated: Armonk, New York

February 8, 2010

_____________________________

Elyse Lazansky

Justice, Town of North Castle