THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DONALD ROBINSON, Appellant.
Appellate Division of the Supreme Court of New York, Second Department
June 10, 2008
[860 NYS2d 159]
Second Department, June 10, 2008
Lynn W. L. Fahey, New York City (William Kastin of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
OPINION OF THE COURT
Dickerson, J.
We are asked on this appeal first to determine whether the computer source code governing the operation of a breathalyzer machine is subject to disclosure as a written document within the meaning of
The police arrested the defendant on May 13, 2005, after observing him drive through several stop signs and red lights
Prior to trial, the defendant moved to compel discovery of the computer source code installed in the particular Intoxilyzer that was used to test him, arguing that such disclosure was necessary to challenge the accuracy of the machine. Source codes are the computer instructions followed by a computing device in processing information (see People v Cialino, 14 Misc 3d 999 [2007]). In particular, the defendant claimed that the source code is the program which ran the Intoxilyzer, that it was stored on a removable computer device called an erasable program read only memory (hereinafter EPROM), and that the source code was not publicly available. The defendant further claimed that, without the source code, he was unable to determine how the machine actually operated, and that he would be unable to verify whether there was an error in the computer program that may have led to an inaccurate calculation of his BAC.
The defendant further argued that, pursuant to
The defendant also claimed that the People had possession of the source code because it was contained within the machine used to test the defendant and could be taken from that machine by removing the EPROM.
In opposition, the People argued that the source code was not an item subject to discovery pursuant to
The Supreme Court denied the defendant‘s motion, concluding that: (1)
At trial, the People presented the testimony of Andrew Gilsenan, the police officer who administered the defendant‘s Intoxilyzer test, as well as the calibration test records for the particular Intoxilyzer on which the defendant was tested. Gilsenan testified that he had received 40 hours of training from the New York State Department of Health with respect to arrests of intoxicated drivers and testing with the Intoxilyzer machine, and that he passed a test qualifying him to administer the Intoxilyzer test. Gilsenan explained that individuals tested by the Intoxilyzer blow into a tube, their breath enters a chamber, and the machine employs light waves to measure breath density within the chamber, thus indicating how much alcohol was in the individual‘s breath, a measurement from which the defendant‘s BAC could be calculated.
Gilsenan stated that, in order to use the Intoxilyzer, a checklist of startup procedures, including a calibration test, had to be followed to ensure that the machine was working properly. Additionally, he testified that the police laboratory performed calibration tests on Intoxilyzers every two weeks to make sure they were calibrated correctly. Gilsenan testified that if the machine were accurate, the laboratory issued a certificate of calibration. At trial, Gilsenan was shown inspection records for the particular Intoxilyzer used to test the defendant dated May 3, 2005, and May 25, 2005, and he testified that the reports indicated that the machine had been calibrated correctly on both dates.
Gilsenan testified that on May 13, 2005, he tested the defendant with the Intoxilyzer, that he used the operational checklist to determine whether it was measuring BAC accurately, that the Intoxilyzer performed a series of self-checks, that the machine indicated that it was working properly, and that it measured the defendant‘s BAC at .196%.
The jury found the defendant guilty of, inter alia, driving while intoxicated per se. The defendant appeals and we affirm.
On appeal, the defendant argues that his motion to compel discovery of the computer source code for the Intoxilyzer was
CPL 240.20 (1) (c)
Pursuant to
“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 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.”
The Court of Appeals has explained that CPL article 240 evinces a legislative intent that a trial “should not be a sporting event,” and that “[b]roader 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]).
Indeed, 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 (1) (k)
In the prosecution of an offense proscribed by the Vehicle and Traffic Law,
“any written report or document, or portion thereof, concerning a physical examination, 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.”
The Practice Commentaries to
“The purpose of paragraph (k) is to make it clear that the material described therein is discoverable on demand in prosecution of a Vehicle and Traffic Law misdemeanor. Although reported opinions had not expressed any doubt about the fact that this material generally fell within the ambit of paragraph (c) (see e.g., People v. Briggs, 136 Misc.2d 687, 519 N.Y.S.2d 294 [Town Ct. Monroe Co.] and cases cited therein), the State Magistrates’ Association (which requested the legislation) expressed the need for clarification. Apparently, the problem involved the scope of discovery of records of inspection, repair and operation of machines and equipment utilized for scientific tests.” (Preiser, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 11A, CPL 240.20, at 342.)
The items specifically listed in
Since the computer source code of the Intoxilyzer constitutes a document “concerning” inspection, repair, and calibration of the relevant machinery, it is included in the definition of discoverable material within this statute.
Penal Law § 170.00 (1) and § 175.00 (3)
In addition, the Legislature has indicated, by the enactment of
Notwithstanding the foregoing, the defendant‘s contention that the Supreme Court deprived him of his right to challenge the reliability of the Intoxilyzer used to test him is without merit. The reliability of breathalyzer tests is well established.
Although “the scientific reliability of breathalyzers in general is no longer open to question” (People v Mertz, 68 NY2d 136, 148 [1986]), the People are required, as a foundational requirement for the admission of breathalyzer test results in a prosecution under
In this case, the Intoxilyzer, manufactured by CMI, Inc., appears on the list of approved breath-testing instruments compiled by the New York State Department of Health, and the machine is thus presumed reliable (see
Similarly, in this case, the defendant did not provide any evidence that the Intoxilyzer used to test him is unreliable. He did not put forth “some factual predicate” which would make it reasonably likely that the Intoxilyzer‘s source code contains material, exculpatory evidence unavailable from other sources (Matter of Constantine v Leto, 157 AD2d at 378).
The defendant‘s reliance upon State v Bjorkland (case No. 04-CT-14406-SC [Fla, Sarasota County Ct 2005], cert denied 924 So 2d 971 [Fla Ct App 2006]) is misplaced. In that case, the defendants argued, inter alia, that they needed the source code to determine whether the Intoxilyzer used to test them had been “substantially modified,” and they presented expert testimony and documentary evidence to support their motion to compel discovery (State v Bjorkland, case No. 04-CT-14406-SC, *1-2). After examining Florida statutes, including that state‘s Evidence Code, the court found that the defendants had established, through expert testimony, that the source code was material to their theory of defense (State v Bjorkland, case No. 04-CT-14406-SC, *6-7). Here, the defendant failed to present any specific evidence to support his speculative contention that the source code in the Intoxilyzer used to measure his BAC contained “software bugs” and that he needed the source code to challenge its accuracy.
Although a defendant is permitted to challenge the accuracy of the test results generated by a specific machine by showing that the machine was not properly maintained, or that the test was not properly administered (see People v Corley, 124 AD2d 390, 390-391 [1986]; People v English, 103 AD2d 979, 979-980 [1984]), the defendant here was provided with all of the documentation associated with the Intoxilyzer machine that was used to measure and calculate his BAC, including field inspection reports, the certificate of calibration, and the certificate of analysis for the simulator solution. In addition, the People called the officer who administered the test as a witness, and the defendant was able to cross-examine him regarding his qualifications and the manner in which he conducted the test. Thus, the defendant was able to challenge the accuracy of the Intoxilyzer‘s determination that his BAC was .196%.
The defendant thus has not argued, and cannot argue, that he was denied the calibration records of the Intoxilyzer used to test him or Gilsenan‘s certificate qualifying him to operate the Intoxilyzer (see
Moreover, although a source code is a type of “written document” within the meaning of the CPL, the defendant offered no evidence that the People actually had the ability to reduce the source code contained in the relevant EPROM chip to an intelligible written document. The defendant argues that the Intoxilyzer‘s EPROM chips, which reside in each Intoxilyzer machine, can easily be removed from the machine, and an intelligible version of the source code can be downloaded and reduced to a written document. The defendant, however, did not present evidence which established that the version of the source code that is stored on the Intoxilyzer‘s EPROMs can be downloaded into an intelligible language which a defense expert could actually read. Moreover, the defendant has not shown that the EPROMs could be removed from the machine without completely dismantling the machine and adversely affecting its future operability. Thus, the defendant‘s argument is unsupported by any admissible evidence, and we reject it accordingly.
The People Did Not Possess the Source Codes
The defendant further argues that because the EPROM was in the Intoxilyzer machine used to test him, the source code program stored in the EPROM was in the People‘s constructive possession since it was in the possession of the police. However, the defendant‘s argument is unsupported by any persuasive authority.
In general, the People are not required to obtain documents from sources beyond their control, such as those in the possession of a medical examiner or the district attorney of another county (see
Here, the People were not required to make available the Intoxilyzer‘s source code because the People never possessed it, actually or constructively. The People did not have control over the program simply because it was installed in the EPROM (see Matter of Phillips v Ramsey, 42 AD3d at 459; People v Mayers, 100 AD2d 558 [1984]). The Intoxilyzer source code was not the property of the State, since it was owned and copyrighted by its manufacturer, CMI, Inc., a Kentucky corporation, and is a trade secret of CMI, Inc. (see Moe v State, 944 So 2d 1096 [Fla Ct App 2006]; People v Cialino, 14 Misc 3d 999, 1000 [2007] [it was “undisputed” that the People did not actually or constructively possess the source code]).
Courts of other jurisdictions have addressed the issue of the actual or constructive possession, by a state prosecutor, of the Intoxilyzer‘s source code in criminal proceedings. In both State v Burnell (2007 WL 241230, 2007 Conn Super LEXIS 157 [2007]), and State v Walters (2006 WL 785393, 2006 Conn Super LEXIS 726 [2006]), the court determined that the relevant source code was a trade secret of the manufacturer, was not actually in the state‘s possession, and was thus not discoverable since Connecticut law requires disclosure only of materials within the “possession, custody or control of any governmental agency” (
Where, however, a state enters into a contract with a breathalyzer manufacturer pursuant to which the state obtains a possessory interest in the source codes and other relevant copyrightable material, and concurrently obligates the manufacturer to provide relevant technical information to defense attorneys, that state may make itself subject to statutory disclosure requirements. Since the State of Minnesota entered into such a contract with the manufacturer of the Intoxilyzer, it was obligated to disclose the source codes to a person charged with driving under the influence of alcohol (see In re Commissioner of Pub. Safety, 735 NW2d 706, 713 [Minn 2007]).
In the matter before this Court, however, the People do not own or control any portion of the source code, and therefore, unlike the State of Minnesota, never possessed it. The People may thus not be compelled to disclose the source code to the defendant.
The Supreme Court correctly denied the defendant‘s motion for discovery of the computer source code for the Intoxilyzer. Accordingly, the judgment appealed from is affirmed.
Ritter, J.P., Florio and McCarthy, JJ., concur.
Ordered that the judgment is affirmed.
DICKERSON, J.
ASSOCIATE JUSTICE