The following papers were submitted

on this Notice on October 19, 2011

papers numbered

Notice of Motion and Affidavits Annexed1-2

Memorandum of Law3

Answering Affidavits4

Reply Affidavits and Memorandum of Law5-6

The defendant was charged with violating Vehicle and Traffic Law §1192.2, ( Count 1), 1192.3, ( Count 2), and 1128 ( c ), ( Count 3). A jury trial was held from April 7 through April 13, 2010. At the close of the People's case the defendant moved for a trial order of dismissal and the court denied the motion. At the close of the evidence, on July 12, 2010, the court granted the defendant's application to dismiss Count 3, the violation of VTL § 1128 ( c ) and denied the defendant's motion to dismiss Counts 1 and 2. The defendant was found guilty after trial of violating VTL § § 1192.2 and 1192.3.

Defendant moved on September 16, 2010 for an order setting aside the jury's verdict and ordering a new trial, on the ground that the jury was not properly charged on the law. By order dated November 19, 2010 the court granted the defendant's motion to set aside the verdict as to the charge of VTL § 1192.3.

[*2]

In this second post trial motion the defendant moves to set aside the jury verdict with respect to the violation of VTL§1192.2, pursuant to the U.S. Constitution and the N.Y.S. Constitution, Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), CPL 330.30(1) and 70.10(1) upon the grounds that the use of documentary foundational evidence for the breath alcohol reading denied the defendant his constitutional right to confront the witnesses against him. The defendant argues that the recent U.S. Supreme Court decision in Bullcoming v. Mexico, specifically held the use of such evidence in lieu of live testimony to be unconstitutional and violative of the Sixth Amendment, mandating the reversal of any conviction based thereon.

The defendant's motion is DENIED based on the following:

In the instant case the defendant was convicted of violating Vehicle and Traffic Law §1192.2, (Driving While Intoxicated per se). Under this charge the People were required to prove that the defendant was operating a motor vehicle when he had .08 percent or more of alcohol in his blood. The arresting officer, a State Trooper certified in operating an Alcotest breath alcohol testing device, testified that he administered the test and the defendant's blood alcohol level exceeded the amount permitted by law.

The court admitted into evidence, over the defendant's objection, certificates certifying the calibration of the breath testing instrument and the solution used to test the defendant's breath . Defense counsel argues that recent U.S. Supreme Court decision in Bullcoming , clearly establishes that those certificates were "testimonial" in nature and under Crawford v Washington, 541 U.S.36, (2004) and Melendez -Diaz v Massachusetts, 129 S. Ct. 2527, (2009), the People were required to call the authors of those certificates to testify at trial and be subject to cross examination.

The defendant acknowledges that in allowing the admission of the certificates at the trial of the instant case, the court was "properly following the governing caselaw at the time set forth in People v Lebrecht, 13 Misc 3d 45, App Term 9th & 10th Jud. Dist. 2006...." However the defendant now argues that based on the recent decision in Bullcoming, the admission of that evidence was unconstitutional.

The People oppose the defendant's motion and assert that the defendant's reliance on Bullcoming v New Mexico is "misplaced." They argue that the Bullcoming decision did not expand the application of the confrontation clause to "non-testimonial documents"

They point out that the evidence in Bullcoming dealt with a test that was specific to the defendant and to the charges against him "and was conducted for the sole purpose of obtaining evidence against him." The People assert that the test in the Bullcoming case was [*3]"deemed to be testimonial,'" and the holding in Bullcoming was directed at whether a "testimonial document may be admitted using surrogate testimony.'"

The People argue that the documents at issue in this case were clearly non-testimonial based on People v Lebrecht, supra, (decided after Crawford), and People v Lent, 29 Misc 3d 14 (App Term 9th & 10th Jud Dists. 2010), ( decided after Melendez-Diaz). In both of these cases the court concluded that certification records of the kind at issue in this case were "non-testimonial."

"A trial court is permitted to set aside a verdict only on a ground which, if raised on appeal, would require reversal as a matter of law, (see, CPL 330.30)," People v Pateno, 259 AD2d 502, (2nd Dept., 1999). The court finds that the defendant has failed to demonstrate that the U.S. Supreme Court's ruling in Bullcoming v New Mexico would require reversal of the court's ruling in this action as a matter of law.

In Bullcoming the defendant was charged with driving while intoxicated and a blood sample was taken for analysis. "At trial the prosecutor did not call as a witness the analyst who signed the certification. Instead the State called another analyst who was familiar with the laboratory's testing procedures, but neither participated in nor observed the test on Bullcoming's blood sample,"(Bullcoming, supra at 2709).

In Bullcoming the trial court and the U.S. Supreme Court agreed that the report of the test of the defendant's blood was "testimonial." The holding in Bullcoming was specifically limited to the issue of whether the state could utilize the testimony of a surrogate in place of the analyst who actually conducted the test, and the court held in the negative.

In the instant case this court ruled that the certification records for the maintenance of the breath-alcohol testing machine and the simulator solution were "non-testimonial", and therefore did not fall within the ambit of Crawford and Melendez Diaz.

As stated above, in 2006 in Lebrecht, the Appellate Term had determined that records of this kind were non testimonial. In 2010 in People v Lent, supra, the court revisited this issue in the wake of Melendez-Diaz and the court held, once again, that such documents are non testimonial.

While the purpose of accurate breath-alcohol measuring

machines is to produce evidence that may used at

trial, the calibration and maintenance documents in relation

to the machines are not testimonial. Calibration and

maintenance records are created " in recognition of their [*4]

necessity in the event of litigation and consitut[e] a part of

the foundational predicate for the admission of BAC test

evidence" (Lebrecht, 13 Misc 3d at 49).However, such

records do not result from structured police questioning,

they are not created in response to any effort at gathering

incriminating evidence against a particular accused,

they reflect objective facts without discretionary aspect,

they do not involve opinions or conclusions relevant to

a particular investigation, and they do not constitute

"a direct accusation of an essential element of any offense,"

(People v Lent, pp 20-21).

Finally, on November 18, 2011, after submission of the instant motion, the Supreme Court Appellate Division, Fourth Department issued a decision in People v Pealer, 2011 NY Slip Op 8397. In Pealer the defendant contended that the trial court erred in admitting breath test machine calibration and simulator solution certificates as business records over the defendant's objection in that it "violated his right under Crawford to confront the government employees who certified the results."(Pealer at*1). On appeal Mr. Pealer argued, as the defendant now argues in this case , that the recent decision in Bullcoming supported his position. The Appellate Division Fourth Department rejected that interpretation of Bullcoming.

Contrary to defendant's contention, this case is distinguishable

from Bullcoming v New Mexico...In Bullcoming, the prosecution

sought to admit evidence establishing that the defendant was

intoxicated, which was an element of the crime charged.

Here, in contrast, the breath test documents were offered

merely to show that the breath test machine functioned

properly, which is not an element of DWI. We note that

the Supreme Court stated in Melendez-Diaz that "documents

prepared in the regular course of equipment maintenance

may well qualify as nontestimonial records." The breath

test documents at issue here are precisely the sort of

documents to which the Supreme Court in Melendez-Diaz

was referring. Although the footnote in Melendez-Diaz

is dicta, we find it to be persuasive, and it is indicative

of how the Court would rule on the issue. It is also consistent

with the Court of Appeals' interpretations of the

Confrontation Clause (see e.g. Freycinet, 11 NY3d at 41-42, [*5]

862 NYS2d 450; Rawlins, 10 NY3d at 152-154,

(Pealer at *2, additional internal cites omitted).

Based on all of the above, this court find that the recent United States Supreme Court decision in Bullcoming v New Mexico, does not mandate a reversal of the defendant's conviction in the instant case.

Accordingly, the defendant's motion is DENIED in all respects.

This constitutes the Decision and Order of the court.

_______________________

DISTRICT COURT JUDGE

Dated: Hempstead, New York

December 8, 2011