People v. Gower
| Decision Date | 30 June 1977 |
| Citation | 42 N.Y.2d 117,397 N.Y.S.2d 368,366 N.E.2d 69 |
| Parties | , 366 N.E.2d 69 The PEOPLE of the State of New York, Respondent, v. John H. GOWER, Appellant. The PEOPLE of the State of New York, Respondent, v. Donald A. RANDALL, Appellant. The PEOPLE of the State of New York, Respondent, v. Michael KEIHART, Appellant. The PEOPLE of the State of New York, Respondent, v. Thomas F. SAMMON, Appellant. The PEOPLE of the State of New York, Respondent, v. Herman J. TUSAR, Jr., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Remy R. Perot, Endicott and Terrence R. Dugan, Binghamton, for appellants.
Patrick D. Monserrate, Dist. Atty. (Frederick J. Meagher, Jr., Binghamton, of counsel), for respondent.
The issue tendered by the defendants and the People in these cases is the admissibility of certain certificates offered by the prosecution to show, by way of foundation for the introduction of the results of breathalyzer tests, that the particular breathalyzer equipment utilized was in proper working order and that the ampoules used contained properly compounded chemicals.
There were certificates, addressed "To whom it may concern", signed by the director of the State Police Scientific Laboratory in Albany, certifying as to the results of analyses of ampoules made on specified dates; certificates addressed to the Director, Division of Criminal Justice Section of the Bureau for Municipal Police at Albany, signed by the Director of Analytical Laboratories of the Stiefel Research Institute, certifying as to the results of analyses of simulator solutions, and a report addressed to the Broome County Sheriff's Department signed by a toxicologist at Wilson Memorial Hospital of analyses of ampoules. These certificates did not come within the scope of CPLR 4518; their source was not represented or shown to have been records made in the regular course of business of the public agency and the private corporations from which they came. Nor did the documents otherwise fall within any recognized exception to the hearsay rule. Accordingly, their receipt into evidence was error, and no assertion is now made that the results of the breathalyzer tests were admissible without them.
It would seem that the requirements of CPLR 4518 could very easily be met and thus its benefits be realized by the prosecution. If the testing agency or corporation were to establish a standardized testing procedure which included a requirement that there be a contemporaneous record made (with appropriate entries as to date, individual making the test, material tested, tests conducted, and results) such records would then presumably be records made in the regular course of business that it was the regular course of such business to make within the contemplation of CPLR 4518. In such event the originals or copies in instances to which the provisions of subdivision (c) would be applicable, would be admissible in evidence to lay the necessary foundation for receipt of the results of breathalyzer tests.
It is worth adding another observation. Perhaps of greater importance than the procedural issue concerning the admissibility of particular forms of documentary evidence, is the underlying question of substantive law what foundation must now be laid for the admission of breathalyzer results. Breathalyzer equipment and procedures have become familiar and their use is...
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