People v. Hernandez

• Decision Date: 26 January 2011
• Citation: 915 N.Y.S.2d 824,31 Misc.3d 208
• Parties: The PEOPLE of the State of New York v. Joseph J. HERNANDEZ, Defendant. The People of the State of New York v. Jennifer L. Merrell, Defendant. The People of the State of New York v. Jennifer L. Merrell, Defendant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 824

31 Misc.3d 208

The PEOPLE of the State of New York

v.Joseph J. HERNANDEZ, Defendant.

The People of the State of New York

v.Jennifer L. Merrell, Defendant.

The People of the State of New York

v.Jennifer L. Merrell, Defendant.

City Court, City of Rochester, New York.

Jan. 26, 2011.

Matt McGrath, ADA (of counsel to Monroe County District Attorney Michael C. Green).

Wisner & Wisner, LLP, Rochester (Todd J.W. Wisner, Esq., of counsel for Mr. Hernandez).

Louis Asandrov, Esq. (Counsel for Ms. Merrell).

THOMAS RAINBOW MORSE, J.

During the bench trials of Mr. Hernandez and Ms. Merrill this court was called upon to rule on the admissibility of four breath test foundational documents in separate per se DWI cases.¹ One of the documents the Court had before it was essentially the same as that used in New York cases for the past thirty years. The other three documents, however, contained new language not yet validated by our courts in any reported decision. These three documents had neither a "pen & ink" signature nor a raised seal over a stamped inscription. Instead, they bore what looked like a twentieth-generation Xerox copy of a signature. Above the signature was a notation that the document was "Digitally signed under ESRA...." For thereasonswhich follow, each of the three new documents offered by the People has been found inadmissible by the court.²

The People have argued that the e-signatures before the court are copies of the electronic signature kept in a computer database at the New York State Police Forensic Investigations Center. They asserted that the "signer" pulls up the electronic signature using a secure personal password after all of the specific calibration or analysis information is inserted in the document. Once the electronic inscription is added to the document, it is complete and its electronically stored information cannot be altered by anyone other than someone with access to the signer's personal password.³

If there had been testimony before the court regarding how the documents were created or if the authenticating certificate contained such information, then the documents might have come closer to admissibility under CPLR 4518. ⁴ No such testimony was offered, however, and the purported sworn documents do not contain such information. Instead, these documents are offered at face value in serious criminal matters which, unlike most misdemeanors, could constitute predicate offenses for future felony convictions with all their attendant civil disabilities. Accordingly, this court has chosen to write this decision amplifying the oral ruling rendered at each bench trial to avoid misinterpretation of the Court's finding and in hope that either law enforcement authorities or our legislature will take prompt action to avoid the real possibility of conflicting judicial opinions regarding the new language used in these documents and the e-signatures affixed to them.

The Battle Over Breath Test Foundational Documents

This opinion is simply the latest in a long series of decisions regarding the sufficiency of documents offered in per se DWIcases.⁵ While our highest court has avoided specifying a particular legal lynchpin for admission of breath test results, it long ago noted that the People "must introduceevidence 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 and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions." ⁶ In most trials, as in these two cases, the People offer instrument calibration certificates and chemical analysis reports as business records pursuant to CPLR 4518.

Since countless per se DWI trials are held daily, it would be impossible for prosecutors across New York to produce an Albany lab technician in each case.⁷ Thus, the People routinely offer the documents without a live witness pursuant to CPLR 4518(c) which permits such introduction if the calibration or analysis report is accompanied by "a certification or authentication by the head of the ... [state]laboratory" which performed the tests. Until the recent switch to electronic signatures, prosecutors offered documents containing pen and ink signatures and/or raised seals. They did exactly that when they offered documentation regarding certification of the breath test instrument used in one of these cases.⁸

That document was offered in the Hernandez case and was admitted after the People produced for inspection documents containing original pen and ink signatures.⁹ In fact, the authenticating certificate was not only sworn before a notary but bore a raised seal over the assistant lab director's signature—metaphorically wearing both suspenders and a belt. ¹⁰ The words in both the authenticating certificate and the test record to which it refers have been vetted in cases before hundreds of New York trial and appellate judges over the past thirty years. Much of the phrasing in each document was dictated by decisions from the Appellate Divisions and the Court of Appeals. Sadly, thee-signature simulator solution documents in both cases ¹¹ and the e-signature instrument calibration certificate inthe Merrill case ¹² do not incorporate many of those substantive elements courts have found necessary for decades. Accordingly, this Court finds those three documents are inadmissible under a well-settled line of CPLR 4518 cases.

The documents don't indicate whether either party who e-signed the instrument calibration or chemical analysis document actually did the testing. If neither personally tested the instrument or chemicals, then the document should at least cite the source of the person's belief that the test was performed by an identified individual who had a business duty to conduct the test.¹³ In addition, since the instrument calibration certificate in the Merrill case indicates repairs were performed by "firmware," an issue arises as to whether the instrument and the individual who tested it were even in the same room! ¹⁴

Although remote testing may be perfectly permissible, if it has been employed then the business record should forthrightlystate the human involvement in the testing just as a breath test operator describes the steps he or she performed using the breath test instrument. Our courts have long recognized that "[c]alibration records are essential to the defense to help it determine whether the machine was operating properly, and failure to provide such records to the defendant has been found to warrant reversal." ¹⁵ The syllogistic argument that "the instrument is working properly because the instrument says that it is working properly" does not necessarily instill confidence. Once informed that the test was performed remotely, an attorney could then decide whether to subpoena a witness regarding the test procedure. At the very least, the parties would then in a position to argue any issue presented by the new internet procedure and courts could begin the process of defining possible parameters for admissibility of web tests in future cases. ¹⁶

Such judicial guidance is part of a trial judge's "gate-keeper" role in both civil and criminal cases.¹⁷ In fact, CPLR 4518(a) provides that a business record may be admitted into evidence " IF THE JUDGE FINDS that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." ¹⁸ In addition, the "COURT MAY CONSIDER the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record." ¹⁹

In one of the appellate decisions upholding a judge's refusal to accept documents offered under CPLR 4518, the Fourth Department noted that the document's advocate "failed to establish when, how, or by whom the electronic spreadsheet submitted in paper form was made ....[and the proponent] failed to establish that theprinted electronic spreadsheet submitted to the court was a true and accurate representation of the electronic record kept by the plaintiff." ²⁰ As observed by the Court of Appeals twenty-five years ago[w]hile the concept of "business" has ventured far beyond the mercantile origins of this hearsay exception, and records in forms previously unimagined are now routinely received in evidence pursuant to CPLR 4518, still not every record made in business falls within the exception. Courts must surely be sensitive to innovation and not seize on petty irregularities to exclude otherwise trustworthy evidence, but there is also the countervailing interest of fairness to the party against whom the records are admitted, and especially so in a criminal case, where the accused has a constitutional right of confrontation. The particular force of documents which are not subject to cross-examination, and which may be taken into the jury room ... cannot be ignored. However flexibly or liberally they may be viewed, the purpose and requirements of the statute remain the touchstone.²¹

The three documents precluded in these cases did not meet this test.

In addition to the concerns raised earlier about the Merrill case calibration report, that document doesn't disclose "when, how or by whom" the tests were performed. Instead, as setforth fully in footnote twelve, the report boldly and rather cryptically asserts that "it has been determined that" the instrument was trustworthy. Such a statement fails to meet the standard used by the Court of Appeals when it affirmed invalidation of a lab report which "did not contain the signature of any person expressly identified as the tester" despite the fact that the Court of Appeals found it was "likely" that the person who signed the ballistics report had tested the gun.²² As to whether the documents used to show the...