The People of
the State of New York
against
Patricia Tejeda, Defendant.
|
2014BX020711
Robert T. Johnson
District Attorney
Bronx County
215 East 161st Street
Bronx, New York 10451
By: Ray Serina, Esq.
Defendant's Attorney
Brendan M. Ahern, Esq.
666 Old Country Road
Suite 700
Garden City, NY 11530
Steven Hornstein, J.
At approximately 9:45 p.m. on April 17, 2014, Police Officer Jeymi Montas
observed
the defendant drive a 2013 Volkswagen sedan onto a public sidewalk
located at the southwest corner of Riverdale Avenue and West 231st Street. Upon
approaching the driver, forty-eight
year old Patricia Tejeda (hereinafter "the defendant"), Officer Montas
observed that her eyes
were bloodshot and watery, her speech was slurred and her breath bore the
strong odor of alcohol. The officer also observed two cups containing an unspecified
liquid in the vehicle's center console and an empty wine bottle on the floor of the front
passenger side. At 9:56
p.m., the defendant was arrested. Subsequent to the arrest, Officer Montas
recovered two
bottle openers from the defendant's purse and the defendant stated to the
officer, in sum and
substance, "I can't hold it. I have to go to the bathroom. I have to pee."
The defendant was taken to the 45th Precinct for a chemical breath test. At some
unspecified time a breath test was administered to the defendant on the Intoxilyzer
5000EN by
Highway One Police Officer Harris. The test revealed a blood alcohol level
of .26 — more than three times the legal limit.
On April 18, 2014, the defendant was arraigned on a misdemeanor complaint
charging her with four counts of operating a motor vehicle while under the influence of
alcohol (VTL
§§ 1192 [2-a] [a]; 1192 [3]; 1192 [2]; 1192 [1]); one count of
reckless driving (VTL § 1212);
and one count of driving on a sidewalk (VTL § 1225 [a]). The
defendant's license to drive
was suspended; she was released on her own recognizance and the matter
was adjourned for
private counsel.
On April 24, 2014, retained counsel served an eight page discovery request. In
language
closely paralleling CPL § 240.20 (1) (k), the defendant sought:
Any written report or document, or portion thereof, concerning
a physical or mental examination or scientific test or experiment,
relating to the criminal action or proceeding, including the most
recent record of inspection, or calibration or repair of machines or
instruments utilized to perform such scientific tests or experiments
and certification certificate, if any, held by the operator of the machine
or instrument...including but not limited to any laboratory analysis or
test or calibration report, including but not limited to such tests and/
or reports done [on] any other breath or blood testing equipment used
by the police in this case. This requests includes but is not limited to
any print outs or reports concerning any such calibration any such
calibration, inspection or test. See defendant's demand at 5.
On May 21, 2014, the People responded to the defendant's discovery demands. The
response specifically referenced CPL § 240.20 (1) (k) and stated: The People are in
possession of an IDTU tape and other DWI paperwork, which have been provided to
defendant." See People's discovery response at 2.
On June 16, 2014, the defendant filed an omnibus motion that asserted, in
pertinent
part, that the People had failed to comply with her demands for discovery
pursuant to CPL §
240.20 (1) (k). The defendant requested a directive from the Court requiring
compliance by
a date certain and sought preclusion if the People failed to comply. See
defendant's omnibus motion
at 5-6.
On June 24, 2014, the People filed a response to the defendant's omnibus motion and
stated, inter alia:
The People oppose defendant's demand for a response to
defendant's Request for a Bill of Particulars and a demand
for discovery. The People filed and served a response to
defendant's request on May 21, 2014. As such defendant's
motion is moot, and should be denied. The People also
served discovery on April 28, 2014 and May 21, 2014. As
such, defendant's motion is moot and should be denied.
On August 1, 2014, the Court rendered a written decision. With respect to the
defendant's motion to compel discovery, the Court did not, as requested, set a specific
date
for production of the requested discovery. Instead, the Court wrote, in
pertinent part:
The People assert that they filed a response to the defendant's
demand to produce and bill of particulars on May 21, 2014.
See People's Response at 6-7. To the extent the People have
not previously done so, the People are directed to provide pre-
trial disclosure of all materials subject to CPL § 240.20 and
CPL § 200.95.
On September 25, 2014 the parties appeared in Part VCQ for hearing and trial. In a
supplemental motion filed by the defendant on November 4, 2014, the defendant
described
the court proceedings as follows:
a. The Defendant made an oral application to preclude the results
of a breath test administered to the Defendant, based upon the
persistent failure of the People to produce any records pertaining
to the calibration and maintenance of the Intoxilyzer 5000EN and
simulator solutions employed in the testing of the Defendant,
pursuant to CPL § 240.20 (1) (k).
b. In response, the People produced partial records...but failed to
comply with the Demand for Discovery.
c. At the request of Judge McGuire, the Defendant outlined the
remaining materials that were required to be disclosed, including:
i. The complete calibration, inspection, repair and
maintenance records kept for the Intoxilyzer 5000
EN machine used in this case, including the field
inspection test checks of the Intoxilyzer 5000EN
machine made by an NYPD technician, and
calibration tests checks, which are done every six
months, including the printouts that display the
quantified calibration check results;
ii. Full calibration test documents, including printouts,
for the calibration tests done immediately prior to and
immediately after the Defendant's test;
iii. The Maintenance Log for the Intoxilyzer machine
used in this case;
iv. Printouts from the simulated tests include the
breath tube test; insufficient sample test; radio
frequency test; reset test;
v. The headspace gas chromatography ("GC") data
records that are produced and stored in relation to the
simulator solution(s) employed in the calibration of the
machine and testing of the Defendant.
d. The People agreed to disclose the records outlined above
on or before October 1, 2014.
e. Judge McGuire indicated that if the records were not disclosed
on or before October 1, 2014, he would entertain preclusion of the
breath reading.
On September 30, 2014, the People filed a supplemental response in which they
claimed all the "statutorily required documents regarding the Intoxilyzer 5000EN that are
relevant and material to the device's condition in the instant matter" had been disclosed
on September 25, 2014. See People's Supplemental Response at 1-2. The People
further claimed: (1) any other requested documents were not statutorily discoverable; (2)
the defendant's discovery requests constituted a "fishing expedition for impeaching
material"; (3) the People would be "unduly burdened in future DWI cases if the
defendant's discovery requests [were] granted"; and (4) "appellate courts...have held
that...trial courts acted in excess of their unauthorized power [when they] compel
discovery not provided by CPL Article 240." Id. at 2-8.
On November 4, 2014, the defendant filed a reply affirmation seeking: (1) an order
to
compel the People to provide, pursuant to CPL §240.20 (1) (k), the
materials requested; and
(2) preclusion of the breath test results upon non-compliance. See
defendant's reply affirmation at 3-4.
[*2]LEGAL
ANALYSIS
Discovery in criminal cases in New York State is governed by statute. See People
v. Colavito, 87 NY2d 423, 427 (1996) ("Items not enumerated in article 240 are not
discoverable
as a matter of right unless constitutionally or otherwise specially mandated");
see also Matter of Johnson v.
Sackett, 109 AD3d 427, 429 (1st Dept 2013), lv denied 22 NY3d 857
(2013) (neither
a defendant nor a court has the "authority to compel pretrial discovery in
criminal cases that is unavailable pursuant to statute.").
New York does, however, have "a philosophy of broad pretrial disclosure."
People v.
De Gata, 86 NY2d 40, 45 (1995); see also People v.
Copicotto, 50 NY2d 222, 226 (1980) (CPL Article 240 "evinces a legislative
determination that the trial of a criminal charge should not be a sporting event where
each side remains ignorant of facts in the hands of the adversary until events unfold at
trial"); Peter Gerstenzang & Eric H. Sills, Handling the DWI Case in New
York,, §§ 20:1 at 568, 20:2 at 568-569 (2012-2013 ed.).
"Discovery of documents pertaining to a chemical test in a DWI case is governed
by
statute, case law, and the Constitution. CPL § 240.20 (1) (k) is the
primary statutory authority
governing disclosure in Vehicle and Traffic Law cases." Id. §
20:40. This section provides:
In any prosecution commenced in a manner set forth in this
subdivision alleging a violation of the vehicle and traffic law,
in addition to any material required to be disclosed pursuant to
this article, or any other provision of law, or the constitution of
this state or of the United States, any written report or document,
or portion thereof, concerning a physical examination, a scientific
test or experiment, including the most recent record or inspection,
or calibration or repair of machines or instruments utilized to perform
such scientific tests or experiments and the certification certificate, if
any, held by the operator of the machine or instrument, which tests or
examination were made by or at the request or direction of a public
servant engaged in law enforcement activity or which was made by a
person whom the prosecutor intends to call as a witness at trial, or
which
the people intend to introduce at trial.
Prior to the enactment of CPL § 240.20 (1) (k), courts were unclear whether
calibration, inspection and repair records of breath devices were discoverable under the
broad terms of CPL
§ 240.20 (1) (c) which, while referring to written reports or documents
concerning scientific
tests, did not specifically refer to scientific tests conducted in cases involving
Vehicle and Traffic
Lawoffenses. See Preiser, Supp Practice Comm to CPL 240.20 (1)
(k) (McKinney ed., 1990,
Cumulative supp at 141). Paragraph (k) was enacted to resolve the question
as to whether
inspection, calibration and repair records of chemical breath testing
machines were discoverable.
Id.
Notwithstanding the enactment of paragraph (k), however, issues remain as to the
scope
of the prosecution's discovery obligations under this provision. Indeed,
recent court decisions interpreting CPL § 240.20 (1) (k) have reached inconsistent
decisions as to what must be disclosed. In People v. White, 45 Misc 3d 694, 694 (Crim Ct, NY
County, 2014), the defendant, like the instant defendant, took a chemical breath test on
an Intoxilyzer 5000EN and registered a reading
in excess of the legal limit. The People, having provided the defendant with
the field unit inspection documents for both before and after the defendant's tests and the
calibration check
prior to the defendant's breath test contended that the they had met their
discovery obligations.
The defendant, seeking disclosure of items similar to those demanded here,
filed a motion to compel. The Court held that the People were required "to produce the
most recent calibration report predating defendant's arrest and up to 30 days thereafter."
Id. at 700. The Court further
held that the People, absent the presence of Brady material, were not
required to produce the most recent maintenance records or the gas headspace
chromatography reports. Id. at 700 - 710.
In People v. Ramrup,
45 Misc 3d 1227 (A) (Sup Ct, Bronx County 2014), the Court
found the People's disclosure obligations were far more expansive than those
stated in White. In Ramrup, the defendant, represented by the same firm
as the defendant in the instant matter, sought "all records ...relating to the maintenance,
calibration, inspection, check and/or
other tests performed on the Intoxilyzer 5000EN that was utilized (one year
prior to and six
months following defendant's arrest); the certification certificate of the
Intoxilyzer 5000EN operator; all documents relating to the preparation and testing of the
simulator solution; the forensic method utilized in the production of the simulator
solution; the standard operating procedures for the production of all simulator solutions
utilized in defendant's testing; and the actual chromatograms for the headspace gas
chromatography." Id. The Court, noting that the
case against the defendant relied heavily on the results of the Intoxilyzer
5000EN, ruled that the defendant was "entitled to the documents which he seeks" and
found that the "demand was
neither overbroad nor extensively burdensome." Id.
As in all driving while under the influence of alcohol cases in which the defendant
takes a breath test, the accuracy and reliability of the breath tests results is of critical
importance to both the prosecution and the defense. Here, the defendant is accused of
driving while under the influence under four provisions of the Vehicle and Traffic Law.
Two of these provisions, VTL
§ 1192 (2-a) (a) and VTL § 1192 (2), require the People to prove
that the defendant was operating a motor vehicle with a blood alcohol level above a
specific statutory threshold. See CJI2d (NY) (Vehicle & Traffic Law
§§ 1192 [2-a] [a] and [2]). The other two provisions, VTL § 1192
(3)
and VTL § 1192 (1), though they do not contain a specific alcohol level
as an element of the offense, allow a trier of fact to consider the defendant's blood
alcohol level in assessing whether intoxication or impairment has been proven. See
CJI2d (NY) (Vehicle & Traffic Law §§ 1192 [3] and [1]).
Though "the scientific reliability of breathalyzers in general is no longer open to
[*3]question" (People v. Mertz, 68 NY2d 136,
148 [1996]), and though the Intoxilyzer 5000, in particular, has
been found to meet the standards developed by the National Bureau of
Standards for the National Highway Traffic Safety Administration for breath testing
devices (see People v. Gallagher, 132 Misc 2d 195 (Dist Ct, Suffolk County
1986), a proper foundation must still be laid before the results of a chemical breath test
will be admitted at trial. See People v. Freeland, 68 NY2d 699, 700 (1986);
People v. English, 103 AD2d 979, 981 (3d Dept 1984); see also VTL
§ 1194 (4) (c); 10 NYCRR 59.4 (a). Generally, this foundational requirement is met
by the introduction of certified calibration reports, field tests, simulator solution records
and the operator's certification as business records under CPLR 4518 (c). Admission of
these documents allows the People
to assert that the device used was properly calibrated and was in good
working order (People v.
Boscic, 15 NY3d 494, 500 [2010]); People v. Todd, 38 NY2d 755, 756
[1975]); that the chemicals used in conducting the test were of the proper kind and mixed
in the proper proportions; (People v. Freeland, 68 NY2d at 700), and that the test
was properly administered (People v. Murphy , 101 AD3d 1177, 1178 [3d Dept 2012];
People v. White, 45 Misc 3d
694 at 695-696). See generally Gerstenzang & Sills, Handling the DWI
Case in New York, § 42:3 at 1060 (2012 - 2013 ed.).
The admission of breath test results, however, does not foreclose the defense from
challenging the test results "on the grounds that proper operating procedures were not
followed
or that the particular machine was not operating properly." People v. Robinson, 53 AD3d
63,
70 (2d Dept 2008). To mount such a challenge, the defendant must be
"accord[ed] [a] full opportunity, through pretrial discovery and other means, to test and
challenge the probative
worth of the [breathalyzer] evidence." People v. Gower, 42 NY2d
117, 121 (1977); see also People v. Alvarez, 70 NY2d 375, 380 (1987) (a
"defendant may not be denied discovery which prevents him [or her] from challenging
the reliability and accuracy of the machine."); People v. Erickson, 156 AD2d 760,
762 (3d Dept 1989) ("It is beyond dispute that foundation evidence produced by the
People relating to the reliability of [a breath testing device] is crucial to a defense attack
alleging that the proper operating techniques were not followed in a certain instance or
that
a particular machine was malfunctioning."). Accordingly, upon proper
demand, a defendant charged with driving with a blood alcohol level above the legal
limit has the right to disclosure of documents not expressly listed in CPL § 240.20.
See People v.Robinson, 53 AD3d at 67; see also Matter of Constantine v.
Leto, 157 AD2d 376, 378 (3d Dept 1990) (calibration tests, police rules and
regulations, operational checklists and records indicating a breath device was not
functioning properly are discoverable).
Here, the defendant argues that pursuant to CPL § 240.20 (1) (k) she
is entitled to: "[t]he
complete calibration, inspection,
repair and maintenance records kept for the Intoxilyzer 5000EN machine used in this
case..."; (2) the "[f]ull calibration test documents, including printouts, for the calibration
tests done immediately prior to and immediately after the Defendant's test"; (3) "[t]he
maintenance log for the Intoxilyzer machine used in this case"; (4) "[p]rintouts from the
simulated tests..."; and (5) [t]he headspace gas chromatography ("GC") data records..."
See [*4]defendant's reply affirmation at 3-4.
The People oppose the defendant's demands and note that the defendant seeks,
without limitation, the calibration, inspection, repair and maintenance records of the
Intoxilyzer 5000EN utilized in this case. See People's Supplemental Response at
4-5. The People contend that "the Intoxilyzer's...complete maintenance record is hardly
relevant to the present functionality of the device"; "[g]ranting a massive extension of
discoverable material...would unduly burden the People not only in this case, but in
thousands of DWI cases that continue to occur on a regular basis." Id. The People
also warn that courts do not possess the "authority to compel pretrial discovery in
criminal cases that is unavailable pursuant to statute [and] upon issuing [such] an
extrajudicial directive, may be subject to an Article 78 proceeding." Id.; see e.g.
Matter of
Johnson v. Sackett, 109 AD3d at 429.
Both CPL § 240.20 (1) (c) and (k) provide, in pertinent part, that: "Except to
the extent protected by court order, upon a demand to produce by a defendant against
whom...a misdemeanor is pending, the prosecutor shall disclose: Any written report or
document, or portion thereof, concerning...a scientific test, relating to the criminal
action...which was made by a person...engaged in law enforcement activity...or which the
people intend to introduce at trial."
"The governing rule of statutory construction is that courts are obliged to interpret
a
statute to effectuate the intent of the legislature, and when the statutory
language is clear and unambiguous, it should be construed so as to give effect to the
plain meaning of [the] words
used." People v.
Barden, 117 AD3d 216, 224-225, lv granted 24 NY3d (2014),
quoting People
v. Finnegan, 85 NY2d 53, 58 (1995), cert denied 516 US 919
(1995). The portion of the statutory language cited above is "clear and unambiguous." In
the absence of a protective order, the People must, upon proper demand, provide all
written reports or documents concerning a scientific test which relate to the criminal
action. Here, a scientific test, a chemical breath test, was conducted
on an Intoxilyzer 5000EN. Thus, to the extent not previously disclosed, the
People must provide, without limitation, every "written report or document, or portion
thereof" concerning the chemical breath test administered to the defendant on April 17,
2014. These documents, include, but are not limited to, printouts and operational
checklists, if any, used in connection with the defendant's breath test.
Though portions of paragraph (c) and paragraph (k) of CPL § 240.20 (1)
closely track one another, the latter paragraph contains statutory language which pertains
exclusively to vehicle
and traffic law offenses. CPL § 240.20 (1) (k) provides, in pertinent
part, "in any prosecution... alleging a violation of the vehicle and traffic law, in addition
to any material required to be disclosed pursuant to [CPL § 240.20]...any written
report or document, or portion thereof, concerning a...scientific test..., including the most
recent record of inspection, or calibration
or repair of machines or instruments utilized to perform such scientific
tests...and the certification certificate, if any, held by the operator of the machine or
instruments...."
The statutory language of CPL 240.20 (1) (k) is, in at least one respect, clear and
unambiguous. The People must provide the certification certificate, if any, held by the
officer
who administered the breath test. Accordingly, if the People have not
previously done so, the People are directed to provide the defendant with the certification
certificate of the officer who administered the breath test to the defendant.
Less clear is paragraph (k)'s directive to disclose "any written report or document, or
portion thereof, concerning a...scientific test...including the most recent record or
inspection,
or calibration or repair of machines or instruments utilized to perform such
scientific tests..." Although this statutory language clearly indicates that inspection,
calibration and repair records
for breath testing devices fall within the broader category of written reports
or documents "concerning a scientific test"; the use of the phrase "the most recent
record," followed by the disjunctive reference to three distinct types of records —
inspection, calibration and repair — raises questions as to what must be disclosed
under the statute.
As stated by the Court of Appeals, "[i]n the interpretation of a statute the legislative
intent is the great and controlling principle." People v. Manini, 79 NY2d 561,
570 (1992). Where "two constructions of a criminal statute are plausible, the one more
favorable to the defendant should be adopted in accordance with the rule of lenity."
People v. Green, 68 NY2d 151, 153 (1986); People v. Golb, 23 NY3d 455 (2013).
The defendant contends that the People are required to disclose, without limitation,
the complete calibration, inspection, repair and maintenance records kept for the
Intoxilyzer 5000EN device used to test her blood alcohol content. Contrary to the
defendant's contention, the People are not required to comply with this demand. CPL
§ 240.20 (1) (k) contains the phrase "the
most recent record of inspection, or calibration or repair." The inclusion of
this phrase clearly demonstrates that the legislature intended to impose relevant time
limitations on the records to
be disclosed.
The defendant also seeks the "full" calibration test documents for the calibration
tests
conducted immediately prior to and immediately after the defendant's test
and maintenance
logs for the Intoxilyzer machine used to test the defendant. See
defendant's Reply Affirmation.
The People point out that "[t]he relevant portion of CPL § 240.20 (1)
(k) is partially disjunctive ...[and] [t]he prosecution must disclose written reports
including either the most recent record
of inspection, or calibration or repair of machines utilized to perform such
tests." See People's Supplemental Response at 3. The interpretation the People
propose would, subject to their Brady obligations, require disclosure of only one
report — the inspection, calibration or repair report
that was closest in time to the administration of the test. This interpretation,
however, does not comport with the intent of the legislature. As indicated in the statute's
sponsoring memorandum, paragraph (k) was enacted "to include as a matter of law, as
part of discovery, records relating to the inspection, repair and operation of machines and
equipment, with the results to be used in
the prosecution's case" (Sponsor's Memorandum, White Br. Exh. E). In
accordance with this legislative intent, the People are directed to provide the defendant
with the inspection, calibration [*5]and repair reports for
the Intoxilyzer 5000EN used to test the defendant's blood alcohol content which
immediately preceded and which immediately succeeded the defendant's test. The People
are also directed to provide the maintenance log for the Intoxilyzer used, if such a log
exists, for
a period of one month prior to and one month subsequent to the
administration of the defendant's test; and the simulator solution certificate of analysis for
the simulator solution lot used in the defendant's breath test.
The defendant also seeks "headspace gas chromatography data records...in relation to
the simulator solution(s) employed in the calibration of the machine and testing of the
Defendant."
See defendant's Supplemental Motion at 4. In a footnote to this
request, the defendant states: "The
simulator solutions(s) used in the calibration of the machine used...are tested
to determine that it contains the appropriate concentration of ethyl alcohol. During that
testing printouts are produced and stored." Id. In People v. White, 45
Misc 3d at 409, a similar request was denied on the ground that the defendant failed to
adequately explain why such reports added "anything above and beyond
the simulator solution report the People routinely provided." Here, as in
White, the defendant fails to demonstrate that such reports would be of any
probative value. Accordingly, the defendant's
request for headspace gas chromatography data records is denied.
Accordingly, to the extent not previously disclosed, the People are directed to
provide the defendant with: (1) every "written report or document, or portion thereof"
concerning the specific chemical breath test administered to the defendant; (2) the
certification certificate of the police officer who administered the breath test to the
defendant; (3) the inspection, calibration and repair reports which immediately preceded
and immediately succeeded the Intoxilyzer 5000EN used to test the defendant; (4) the
maintenance log for the Intoxilyzer 5000EN used, if such a log exists,
for a period of one month prior to and one month subsequent to the
administration of the defendant's test; and (5) the simulator solution certificate of analysis
for the simulator solution
lot used in testing the defendant's blood alcohol level.
This constitutes the decision and order of the court.
DATED: February 4, 2015
Bronx, New York
Hon. Steven Hornstein
cc: Brendan M. Ahern, Esq.
666 Old Country Road, Suite 700
Garden City, NY 11530
Ray Serina, Esq.
Assistant District Attorney
Bronx District Attorney's Office
198 East 161st Street
Bronx, New York 10451