93 A.D.3d 953
N.Y. App. Div.2012Background
- Defendant was convicted of two counts of driving while intoxicated after a jury trial in Otsego County Court.
- On appeal, defendant challenged the admission of breath test maintenance/calibration records and a simulator solution certification.
- The court admitted these documents to foundation the breath test results but did not allow cross-examination of the documents’ preparers.
- The Confrontation Clause is implicated only if the statements are testimonial; business/public records are generally non-testimonial.
- The court held the challenged documents were not testimonial and were properly admitted as non-testimonial records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of maintenance records violated Confrontation Clause | Malone argues the records are testimonial | Malone contends cross-examination was required | No error; records were non-testimonial |
| Whether simulator solution certification was testimonial | Certification bears on guilt | Certification is testimonial | No error; records not testimonial |
| Whether the breath-test maintenance records were admissible to foundation the results | Needed for admissibility of breath results | Unnecessary confrontation | Admissible; proper foundation |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (US 2009) (certified lab results are testimonial)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (US 2011) (laboratory reports may be testimonial)
- People v. Pealer, 89 A.D.3d 1504 (N.Y. App. Div. 2011) (breath test maintenance records can be non-testimonial)
- People v. Brown, 13 N.Y.3d 332 (N.Y. 2009) (customer/administrator records may be non-testimonial)
- Davis v. Washington, 547 U.S. 813 (US 2006) (testimonial vs. nontestimonial statements framework)
- Crawford v. Washington, 541 U.S. 36 (US 2004) (establishes confrontation Clause framework)