People v. Brown, 2011BX004250
| Decision Date | 28 April 2015 |
| Docket Number | 2011BX004250 |
| Citation | 48 Misc.3d 582,9 N.Y.S.3d 830,2015 N.Y. Slip Op. 25141 |
| Parties | The PEOPLE of the State of New York, v. Ken BROWN, Defendant. |
| Court | New York Criminal Court |
Robert T. Johnson, District Attorney, Bronx County by Marshall S. Volk, Assistant District Attorney, for the People.
The Bronx Defenders by Jeremy Kaplan–Lyman, for Defendant.
The People's motion for an order pursuant to CPLR 2221(d), for leave to reargue this Court's oral decision dated February 17, 2015, is granted. Upon reargument, this Court adheres to its prior decision.
Defendant is charged with the misdemeanors of Driving While Intoxicated (VTL §§ 1192[2], [2–1][a], and [3 ] ) and the traffic infraction of Driving While Ability Impaired by Alcohol (VTL § 1192[1] ).
According to the accusatory instrument, on January 22, 2011 at approximately 3:12 a.m., Police Officer Jerome Bonser observed defendant operating a 1997 Honda Accord at the northeast corner of East 241st Street and Furman Avenue in Bronx County. Upon approaching defendant, Officer Bonser observed defendant to have bloodshot, watery eyes, slurred and incoherent speech, and the moderate smell of an alcoholic beverage emanating from his breath. Defendant stated in sum and substance to Officer Bonser, “I had a Corona eight hours ago.” Defendant was placed under arrest and taken to the 47th Precinct where a breathalyzer test was administered. The test revealed defendant to have a blood alcohol content (“BAC”) of .196, more than double the legal limit.
On or about February 5, 2015, defense counsel served upon the People a written demand for discovery seeking, inter alia , “[a]ny written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action.” On the February 17, 2015 court appearance, defense counsel demanded the production of the calibration reports and the maintenance logs for the Intoxilyzer 5000EN (“Intoxilyzer”). By oral decision dated February 17, 2015, this Court directed the People to turn over to defendant all maintenance logs related to the Intoxilyzer on or before March 16, 2015. Although the People have turned over the calibration reports, the People have not produced any of the requested maintenance logs.
The People argue that this Court misapplied the law and exceeded its authority by ordering the production of all maintenance logs pertaining to the Intoxilyzer used in the instant case. The People assert that they have fully complied with their discovery obligations pursuant to CPL § 240.20(1)(k) by producing the most recent calibration reports prior to defendant's test and the most recent field inspection reports that preceded and followed defendant's test. The People aver that defendant is not entitled to the maintenance logs and compelling the People to produce same is unreasonable and an impermissible expansion of CPL § 240.20(1)(k).
The People also contend that the material defendant seeks is neither relevant nor material to challenging the accuracy of the test results and is rather a ploy by defendant to engage in a fishing expedition for impeachment material. The People note that defendant has not specified a time period for the requested maintenance logs. The People argue that the complete maintenance history of the Intoxilyzer has no bearing on its operability on the date defendant submitted to a breath analysis. It is the People's belief that defendant only seeks these maintenance records in order to confuse witnesses with dates of immaterial maintenance records of the Intoxilyzer used. Moreover, when considering the high volume and frequency of DWI cases, the People maintain that they would be unduly burdened with tedious discovery and production requests for maintenance logs for an unspecified period of time, which could include the lifetime of the machine, approximately 10 years.
Finally, the People refer to a number of instances where they have successfully commenced Article 78 proceedings challenging court-ordered discovery beyond the scope of CPL article 2401 . The People assert that the appellate courts in these cases held that the trial courts acted in excess of their authorized power to compel discovery not permitted under CPL article 240.
Defendant agrees with the People that the Court may not order the production of discovery unless it is specifically authorized by statute. However, defendant notes that he requests for the production of maintenance logs pursuant to CPL § 240.20(1)(c), which requires the production of “[a]ny written report or document, or portion thereof, concerning a physical or mental examination, or a scientific test or experiment, relating to the criminal action which was made by a public servant engaged in law enforcement activity.” Defendant argues that the maintenance records fall squarely within the documents required to the produced under CPL § 240.20(1)(c). Defendant challenges the People's narrow reading of CPL § 240.20(1)(k) and avers that the statute explicitly provides that the listed items are discoverable “in addition to any material required to be disclosed pursuant to this article, any other provision of law, or the constitution of this state or of the United States.”
With respect to the People's characterization of his discovery request as a fishing expedition for impeachment material, defendant avers that such a claim is unwarranted and mistaken. Defendant clarifies his request and demands for the production of the maintenance logs for the time period one year prior to and six months following the date of his arrest. Defendant further argues that the failure to provide these documents will deprive him a fair trial by limiting his right to challenge the reliability of the Intoxilyzer used since the maintenance logs he seeks are possibly the most reliable record of whether the Intoxilyzer used was accurate and in good working condition.
Defendant also takes issue with the People's argument claiming that the production of the maintenance logs would be unduly burdensome in future DWI cases. Defendant points out that the People have made no showing and have alleged no facts to demonstrate that the compelled disclosure of these maintenance logs would be burdensome. Defendant reiterates that he does not seek all of the maintenance logs, spanning the life of the machine. Rather, his request for documents is limited in time, these documents are routinely kept by the police, and they have been turned over in the past in this County.
A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” CPLR 2221(d)(2). “ ” Mangine v. Keller, 182 A.D.2d 476, 477, 581 N.Y.S.2d 793 (1st Dept.1992), quoting Foley v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588 (1st Dept.1979). Upon consideration of the parties' submissions, the People's request for leave to reargue this Court's February 17, 2015 oral decision is granted.
Unless constitutionally or otherwise mandated, items not identified in CPL article 240 are not subject to discovery. People v. Colavito, 87 N.Y.2d 423, 639 N.Y.S.2d 996, 663 N.E.2d 308 (1996). Criminal discovery, “embodied in article 240 [of the CPL], evinces a legislative determination that the trial of a criminal charge should not be a sporting event” and that “[b]roader 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 N.Y.2d 222, 226, 428 N.Y.S.2d 649, 406 N.E.2d 465 (1980).
Although “the scientific reliability of breathalyzers in general is no longer open to question” (People v. Mertz, 68 N.Y.2d 136, 148, 506 N.Y.S.2d 290, 497 N.E.2d 657 [1948] ), the People must still lay a proper foundation before the results of a chemical breath analysis can be introduced at trial. People v. Freeland, 68 N.Y.2d 699, 506 N.Y.S.2d 306, 497 N.E.2d 673 (1986). In order to introduce the results of a breathalyzer test, the People are required to “introduce evidence from which the trier of fact could reasonably conclude that the testing device was in proper working order at the time the test was administered to the defendant.”Id. at 700, 506 N.Y.S.2d 306, 497 N.E.2d 673. A defendant may attack the accuracy of test results by demonstrating either that the proper operating procedures were not followed or the machine was not operating properly. People v. English, 103 A.D.2d 979, 480 N.Y.S.2d 56 (3d Dept.1984).
This Court finds the People's reading of CPL § 240.20(1)(k) to be unsound and inconsonant with the rules of statutory interpretation. When interpreting a statute, the Court's primary consideration is to ascertain and give effect to the intent of the legislature. McKinney's Cons. Laws of N.Y., Book 1, Statutes §§ 76, 94. The clearest indicator of legislative intent is found in the statutory text itself and therefore “the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.” Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 (1998). Moreover, “[i]n construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or...
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