Criminal Court of the City of New York, Bronx County, June 5, 2018

Legal Aid Society, Bronx (Sungso Lee of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Amanda Iannuzzi of counsel), for plaintiff.

Defendant's motion is decided as follows:

Defendant is charged in the accusatory instrument with committing the offenses of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) under count one; operating a motor vehicle while under the influence of alcohol or drugs (Vehicle and Traffic Law § 1192 [3]) under count two; and driving while ability impaired by alcohol (Vehicle and Traffic Law § 1192 [1]) under count three.

The misdemeanor information sworn to by Police Officer (P.O.) James Fagan alleges that on or about April 3, 2017, at approximately 11:30 p.m. in the County of the Bronx he observed defendant seated behind the steering wheel and operating a gray Nissan sedan in that said engine was running and the car was moving on a public street. P.O. Fagan further alleged that he observed defendant operating the vehicle at approximately 81 miles per hour in a 50 mile per hour zone. P.O. Fagan also alleged that he observed defendant to have watery eyes, slurred speech and an odor of alcoholic beverage on his breath and defendant stated that he "only had one drink." Additionally, P.O. Fagan stated that he was present during the administration of a chemical test of defendant's breath and that defendant's blood alcohol content was .10 of one percentum by weight per volume.

The instrument used to test defendant's breath sample in the instant matter was the Intoxilyzer 5000, which is a machine designed to measure the ethyl alcohol in the test subject's breath. The Intoxilyzer machine is presumed to be{**60 Misc 3d at 723} reliable (see 10 NYCRR 59.4; People v Robinson, 53 AD3d 63 [2d Dept 2008]). However, the results of a breath test from the Intoxilyzer are inadmissible at trial unless the People establish that the machine was in proper working order at the time the test was administered (see People v Boscic, 15 NY3d 494 [2010]) and "that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions" (People v Freeland, 68 NY2d 699, 700 [1986]).

In order to ensure that the Intoxilyzer 5000 functions properly, a "simulator test" must be run prior to or following every breath test (10 NYCRR 59.5 [d]). During the simulator test, the Intoxilyzer 5000 measures the alcohol content of a "simulator solution" which contains a specific quantity of ethyl alcohol and is intended to simulate a known blood alcohol content. In order for the Intoxilyzer machine to be certified as accurate, it must measure the simulator solution to within the limits of plus or minus .01% per weight per volume. Thus, if the simulator solution's actual measurement is .10% the Intoxilyzer must register a reading of .09%, .10% or .11% (see 10 NYCRR 59.5 [d]; Gerstenzang, Handling the DWI Case in New York § 29.11 [2016-2017 ed]).

Prior to the simulator test, the simulator solution is tested in a separate process known as "headspace gas chromatography" which measures the concentration of ethyl alcohol in the simulator solution. Generally, during this process (1) the simulator solution sample containing ethyl alcohol is placed into a small sealed container; (2) this container is then heated producing "headspace gas"; (3) a technician injects a small syringe into the top of the sealed container which collects the sample of the "headspace gas"; (4) this sample is then placed into a gas chromatogram machine that analyzes the headspace gas to determine the proportion of ethyl alcohol in the sample; (5) the headspace gas chromatograph machine, which is attached to a computer, generates results referred to as gas chromatography (GC) data; and (6) the technician then reviews the data which includes graphical displays known as "chromatograms" and prepares a report with respect to the level of ethyl alcohol in the simulator solution (see generally Bruno Kolb & Leslie Ettre, Static Headspace Gas Chromatography: Theory and Practice [2d ed 2006]; Restek, A Technical Guide for Static Headspace Analysis Using GC [2000]).

On April 6, 2017, defendant served the People with a demand for discovery including all written documents concerning scientific{**60 Misc 3d at 724} tests and experiments. The court file indicates that the People served discovery upon defendant on May 1, 2017. The People represent that pursuant to defendant's discovery request they have provided defendant, in pertinent part, with the calibration and field testing reports of the Intoxilyzer machine that was used to test defendant's breath.

Defendant now moves this court pursuant to CPL 240.40 (1) (c) to compel discovery of all documentation related to the preparation, testing and analysis of Simulator Solution, Lot No. 16380, including the headspace gas chromatography data, relating to the certified reports generated on December 14, 2016, March 23, 2017, and April 5, 2017, or in the alternative, for an order precluding the prosecution from offering at trial evidence of defendant's Intoxilyzer result. Defendant claims that such material is discoverable under CPL 240.20 (1) (c) and (k) as "any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment" (Lee affirmation ¶ 13). Defendant asserts that the [*3]records with respect to the simulator solution are evidence of whether the calibration of the Intoxilyzer machine was accurate. Moreover, defendant argues that, here, because the Intoxilyzer machine registered a .10% level of alcohol in defendant's breath sample, which is only .02% above the legal limit of .08% under Vehicle and Traffic Law § 1192 (2), such records are critical to the defense.

The People, in opposition to defendant's motion, contend that the simulator solution paperwork and headspace gas chromatography data are not discoverable under CPL 240.20 (1) (c) and (k) because the simulator solution, although used to verify whether the Intoxilyzer is functioning properly, does not actually test defendant's breath. Further, the People contend that providing defendant with the documents related to the testing of the simulator solution would create a "slippery slope" of discovery practice wherein defense counsel could then demand "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 . . . [and] . . . would be an overwhelming strain on government resources" (Iannuzzi affirmation at 8 ¶ 3).

After reviewing the written submissions of the parties and the relevant law defendant's motion to compel discovery is decided as follows:{**60 Misc 3d at 725}

CPL 240.20 (1) (c) sets forth, in pertinent part,

"[U]pon a demand to produce by a defendant against whom an . . . information . . . charging . . . a misdemeanor is pending, the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing, the following property: . . .

"(c) Any written report or document, or portion thereof, 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."

CPL 240.20 (1) (k), which relates specifically to vehicle and traffic law violations, directs the prosecution to provide, in pertinent part, the following additional discovery:

"any written report or document, or portion thereof concerning . . . a scientific test or experiment, including the most recent record of 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 examinations 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."

CPL 240.40 (1) provides, in pertinent part, that

"[u]pon motion of a defendant against whom an . . . information . . . charging a misdemeanor is pending, the court in which such accusatory instrument is pending:

"(c) may order discovery with respect to any other property, which the people intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of his or her defense, and that the request is reasonable."

Discovery in criminal cases in New York State is governed by statute (see People v Colavito, 87 NY2d 423 [1996]). However,{**60 Misc 3d at 726} with respect to Vehicle and Traffic Law § 1192 prosecutions, the list of discoverable items in CPL 240.20 (1) (k) is not an exhaustive list inasmuch as "the statute expressly placed the word 'including' immediately prior to listing all discoverable material" (Gerstenzang, Handling the DWI Case in New York § 20.40 [2016-2017 ed]). Indeed, in People v Robinson (53 AD3d at 67), the Appellate Court held that "case law has recognized the defendant's right, in prosecutions charging driving while intoxicated and related offenses, to disclosure of various documents not expressly listed in CPL 240.20" (see also People v Alvarez, 70 NY2d 375 [1987]; People v Corley, 124 AD2d 390 [3d Dept 1986]; People v English, 103 AD2d 979 [3d Dept 1984]). As such, documents not expressly listed under CPL 240.20 (1) (k) but recognized as discoverable include documents relating to ampoule analysis and simulator solution analysis (see People v Crandall, 228 AD2d 794 [3d Dept 1996]); simulator maintenance log for the Intoxilyzer unit used (see People v Di Lorenzo, 134 Misc 2d 1000 [Nassau County Ct 1987]); records that a machine may not have been operating properly (see Matter of Constantine v Leto, 157 AD2d 376 [3d Dept 1990]); and a breathalyzer operator's permit, weekly test record, state police rules and regulations, the operational checklist and calibration reports of the Intoxilyzer machine (see People v Erickson, 156 AD2d 760 [3d Dept 1989]).

Further, in People v Ramrup (45 Misc 3d 1227[A], 2014 NY Slip Op 51740[U], *1 [Sup Ct, Bronx County 2014]), the court in granting defendant's motion to compel discovery, ordered the People to produce to defendant "any and 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 of the headspace gas chromatography" (see also People v Torre, 48 Misc 3d 745 [Nassau Dist Ct 2015]).

Additionally, the Appellate Division, Second Department in Matter of Singas v Engel (155 AD3d 877, 878 [2d Dept 2017]) recently held that the trial court "did not act without jurisdiction or in excess of his authority" when it ordered the People to provide headspace gas chromatography data to the defendant in a Vehicle and Traffic Law § 1192 prosecution.

Based on the foregoing, this court rejects the People's narrow view that defendant is limited to discovery of the documents{**60 Misc 3d at 727} that they have disclosed to him. Although it is factually correct that the headspace gas chromatography machine was not used to analyze defendant's breath sample, significantly, it was utilized to test the accuracy of the simulator solution which is vital to the "inspection, . . . calibration [and] repair" (CPL 240.20 [1] [k]) of the Intoxilyzer machine itself. Thus, defendant's demand is clearly "material to the preparation of his . . . defense, and . . . is reasonable" (CPL 240.40 [1] [c]).

Discovery of the data related to the preparation and testing of the simulator solution is particularly important in the instant matter inasmuch as the Intoxilyzer machine registered a reading of defendant's blood alcohol content to be .10%, which is only .02% above the legal limit under Vehicle and Traffic Law § 1192 (2). Therefore, logically, if the simulator solution used in this matter was not measured and tested properly, such procedural defects could have a considerable impact on the reliability of defendant's Intoxilyzer breath test result. Since evidence of a defendant's blood alcohol content is often dispositive at trial in driving while intoxicated cases defendant should not be limited to conclusory reports regarding the preparation and testing of the simulator solution. Rather, he is entitled, through pretrial discovery, to all backup documents related thereto so that defense counsel has a full and fair opportunity to challenge such evidence at trial (see People v Torre; People v Brown, 48 Misc 3d 582 [Sup Ct, Bronx County 2015]; see also People v Baghai-Kermani, 84 NY2d 525 [1994]; People v Flores, 84 NY2d 184 [1994]; People v Banch, 80 NY2d 610 [1992]; People v Young, 79 NY2d 365 [1992]).

Moreover, in considering defendant's discovery motion this court is cognizant of the New York Court of Appeals admonition that "the trial of a criminal charge should not be a sporting event . . . . Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence" (People v Copicotto, 50 NY2d 222, 226 [1980]).

Finally, contrary to the People's contention, defendant's discovery request is neither overbroad nor extensively burdensome since it is confined to the records of a single lot number of simulator solution and pertains to certified reports produced on three specific dates (see People v Torre; People v Brown; People v Ramrup).{**60 Misc 3d at 728}

Accordingly, pursuant to CPL 240.40 (1) (c), defendant's motion to compel discovery is granted. The People are directed to disclose to defendant and make available for inspection all documents related to the preparation, testing and analysis of Simulator Solution, Lot No. 16380, including the chromatograms of the headspace gas chromatography made in connection with the issuance of certified reports dated December 14, 2016, March 23, 2017, and April 5, 2017.