People v. PealerPeople v. Pealer
The Confrontation Clause bars the admission of testimonial out-of-court statements made by a witness who is not subject to cross-examination (see generally Crawford, 541 US at 50-54; People v Brown, 13 NY3d 332, 338 [2009]). The United States Supreme Court in Crawford explicitly declined “to spell out a comprehensive definition of ‘testimonial’ ” (541 US at 68), but it stated that “some statements qualify under any definition[, including] ex parte testimony at a preliminary hearing [and s]tatements taken by police officers in the course of interrogations” (id. at 52). Since Crawford was decided, courts have struggled to come up with a comprehensive definition of the term “testimonial,” but one factor that must be considered is the degree to which a statement is deemed accusatory, i.e., whether it “seeks to establish facts essential to the elements of the crime[s]” (People v Encarnacion, 87 AD3d 81, 90 [2011]; see Melendez-Diaz v Massachusetts, 557 US —, —, 129 S Ct 2527, 2532 [2009]; People v Rawlins, 10 NY3d 136, 151-152 [2008], cert denied sub nom. Meekins v New York, 557 US —, 129 S Ct 2856 [2009]).
Here, the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant‘s guilt or innocence (see People v Damato, 79 AD3d 1060, 1061-1062 [2010]; see also People v Bush, 66 AD3d 1488 [2009], lv denied 13 NY3d 905 [2009]). The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were “not defendant‘s ‘accuser[s]’ in any but the most attenuated sense” (People v Freycinet, 11 NY3d 38, 42 [2008]), and the breath test documents were properly admitted in evidence over defendant‘s objection based on the Confrontation Clause (see Damato, 79 AD3d at 1061-1062; People v Lebrecht, 13 Misc 3d 45, 47-49 [2006]; Green v DeMarco, 11 Misc 3d 451, 465-468 [2005]).
Contrary to defendant‘s contention, this case is distinguishable from Bullcoming v New Mexico (564 US —, —, 131 S Ct 2705, 2710 [2011]), in which the Supreme Court held that the Confrontation Clause barred the admission in evidence of a forensic laboratory report certifying the defendant‘s blood alcohol content. In Bullcoming, the prosecution sought to admit evidence establishing that the defendant was intoxicated, which was an element of the crime charged (id. 564 US at —, 131 S Ct at 2709-2710). 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” (557 US at — n 1, 129 S Ct at 2532 at n 1). 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; Rawlins, 10 NY3d at 152-154).
Defendant further contends that the court erred in refusing to suppress all evidence obtained by the police following the stop of his vehicle. We reject that contention. The arresting officer stopped defendant‘s vehicle because it had an unauthorized sticker on the rear window, in violation of
We have reviewed defendant‘s remaining contentions and