Criminal Court of the City of New York, New York County, March 5, 2018

Brad E. Mazarin, New York City, for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Samantha Oakes of counsel), for plaintiff.

The defendant is charged with Vehicle and Traffic Law § 1192 (2) (driving while intoxicated—per se) as well as Vehicle and Traffic Law § 1192 (3) (driving while intoxicated) and Vehicle and Traffic Law § 1192 (1) (driving while ability impaired). On or about September 14, 2017, the defendant served and filed a demand for discovery. On October 12, 2017, the People served their response. The defendant believes that the People's production was incomplete and now moves, pursuant to CPL 240.20, to compel the production of

"[a]ll documents concerning the preparation and testing of the Simulator Solution Lot Number 17040 including the forensic method utilized in the production of the simulator solution i.e. standard operating procedures for the production of any and all simulator solutions produced and utilized in the testing of the Defendant's breath and the actual chromatograms (GC Data) of the headspace gas chromatography (not merely the certifications that the tests were performed)."

For the reasons set forth herein, this motion is denied.

On August 25, 2017, the defendant was arrested for driving while intoxicated. At that time, the arresting officer, David Mencarelli, administered a breath test using an Intoxilyzer 5000EN (the Intoxilyzer) to determine defendant's blood alcohol content (BAC). Defendant [*2]registered a .14 of one percent by weight of alcohol in his blood. As a reading of .08 is the floor in New York for driving while intoxicated per se, the People charged defendant with Vehicle and Traffic Law § 1192 (2) (driving while intoxicated—per se) as well as Vehicle and Traffic Law § 1192 (3) (driving while intoxicated) and Vehicle and Traffic Law § 1192 (1) (driving while ability impaired).

While the Intoxilyzer is presumed to be reliable (see 10 NYCRR 59.4; People v Robinson, 53 AD3d 63, 70 [2d Dept 2008]), the results of the breath test administered using the Intoxilyzer are inadmissible at trial unless the People "demonstrate that the [specific] machine was in good working order, that any chemicals used in conducting the test were of the proper kind and mixed in the proper proportions, and that the test was administered properly" (People v White, 45 Misc 3d 694, 695-696 [Crim Ct, NY County 2014] [citations omitted]).{**59 Misc 3d at 620}

The People have already produced the Intoxilyzer's Calibration Report and Field Inspection Reports, as well as the certificate of analysis for the simulator solution (People's response at 9; see also defendant's mot, exhibit A), which are, in general, sufficient to satisfy the People's disclosure requirements to establish at trial that the Intoxilyzer was in good working order (see People v Robinson, 53 AD3d 63 [2d Dept 2008]). Nevertheless, defendant argues that he is entitled to the production of additional documents concerning the preparation and testing of the simulator solution used to ensure the Intoxilyzer was properly calibrated (Simulator Solution lot No. 17040) (defendant's mot ¶ 16).

A "simulator solution" is used during the required "simulator test" which must run on an Intoxilyzer before or after every breath test. This "simulator test" ensures that the Intoxilyzer is properly calibrated (10 NYCRR 59.5 [d]). During this "simulator test," the Intoxilyzer measures a "reference standard" (also known as a "simulator solution") that simulates a person with a known BAC (id.; see also Gerstenzang, Handling the DWI Case in New York § 29:11 [Oct. 2017 update]). For the Intoxilyzer to be certified as accurate, it must measure the reference standard to within .01 of one percent per weight per volume (id.).

Prior to the simulator test, the simulator solution is tested in a separate process known as gas headspace chromatography. Gas headspace chromatography establishes the simulator solution's concentration of ethyl alcohol. The technician conducting the gas headspace chromatography reviews the records produced by the gas headspace chromatography (the chromatograms) and writes a report stating, inter alia, the results of the analysis (People v White, 45 Misc 3d at 698).

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] [neither a defendant nor a court has the "authority to compel pretrial discovery in criminal cases that is unavailable pursuant to statute" (citations omitted)], lv denied 22 NY3d 857 [2013]).{**59 Misc 3d at 621}

CPL 240.20 is the primary statutory authority governing disclosure in Vehicle and Traffic Law cases. CPL 240.20 (1) (c) provides, in relevant part, that

"the prosecutor shall disclose to the defendant . . .

"[a]ny written report or document . . . concerning a . . . scientific test or experiment, relating to the criminal action or proceeding which was 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."

In 1989, the statute was amended to add CPL 240.20 (1) (k) which clarifies that, in the prosecution of an offense proscribed by the Vehicle and Traffic Law, the written reports described in CPL 240.20 (1) (c) include "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 instrument" (CPL 240.20 [1] [k]).

The defendant argues that the discovery sought in the instant motion falls within the ambit of CPL 240.20 (1) (k) because it concerns the "inspection or calibration" of the instrument used to conduct a "scientific test" upon the defendant's breath. The People respond that the documents previously provided to the defendant satisfy their obligation under CPL 240.20 and the defendant has failed to "articulate how the absence of the gas chromatography analysis denies the defendant a meaningful opportunity to challenge the reliability of the Intoxilyzer machine" (People's opp at 5, 7). The People add that if defendant's motion were granted it "may lead to demands for further reports regarding the chromatogram machine itself, reports regarding the various parts and solutions involved in testing, and reports regarding the manufacturing of each chromatogram machine [which] would become overwhelming and a strain on government resources" (id.).

The court is persuaded by the People's argument. The discovery defendant seeks constitutes "nothing more than tests of tests" which are not a "fundamental part of whether or not the [Intoxilyzer] was in good working order" (People v White, 45 Misc 3d 694, 701 [Crim Ct, NY County 2014], citing State v Chun, 194 NJ 54, 136, 943 A2d 114, 163 [2008] [only documents directly relating to operation of breath testing device{**59 Misc 3d at 622} were required to establish evidentiary foundation, while tests of tests were not required]). Moreover, the defendant has not offered any factual basis to support his claim that this material would establish that the Intoxilyzer's BAC measurement was inaccurate. As such, defendant's "request to compel disclosure . . . on that basis constitutes nothing more than a fishing expedition" (People v Robinson, 53 AD3d 63, 72 [2d Dept 2008] [motion to compel disclosure of source code denied where defendant offered no factual basis that Intoxilyzer source contained software glitches making BAC measurements inaccurate]). Accordingly, absent some factual showing by the defendant that this material is of any probative value, the certificate of reliability previously produced by the People discharges their discovery obligations as to the simulator solution (id.; People v White, 45 Misc 3d at 701; People v Tejeda, 47 Misc 3d 1224[A], 2015 NY Slip Op 50836[U] [Crim Ct, Bronx County 2015]).

While the court acknowledges that some trial courts of coordinate jurisdiction have found that the documents sought here are discoverable, the court disagrees with their assessment that "the proper preparation of the simulator solution and the proper maintenance, repair, calibration and operation of the instrument used to conduct the chemical test of the defendant's breath" are inextricably linked (People v Torre, 48 Misc 3d 745, 750 [Nassau Dist Ct 2015]) and finds that these documents are sufficiently attenuated from the simulator test run on the Intoxilyzer such that the documents already produced by the People are sufficient to establish whether or not the Intoxilyzer was in good working order.

Finally, the Second Department's decision in Singas does not require a contrary conclusion. That case involved the propriety of the Supreme Court, Nassau County's denial of the District Attorney's CPLR article 78 petition, which sought to prohibit the enforcement of a court order directing the District Attorney's Office to disclose chromatograms and related documents (Matter of Singas v Engel, 155 AD3d 877, 878 [2d Dept 2017]). Notably, the Second Department held [*3]only that the Supreme Court had jurisdiction and did not act in excess of its authority. That holding did not address the issue at hand here, whether or not the simulator solution and gas chromatograms were discoverable under CPL 240.20 (1) (k) (id.). Accordingly, Singas is not applicable here.{**59 Misc 3d at 623}

It is, therefore, ordered that the defendant's motion to compel all documents concerning the preparation and testing of the Simulator Solution lot No. 17040 is denied.