People v. Lent

• Decision Date: 16 July 2010
• Citation: 908 N.Y.S.2d 804,29 Misc.3d 14
• Parties: The PEOPLE of the State of New York, Respondent, v. William E. LENT, Jr., Appellant.
• Court: New York Supreme Court — Appellate Term

908 N.Y.S.2d 804

29 Misc.3d 14

The PEOPLE of the State of New York, Respondent,

v.William E. LENT, Jr., Appellant.

Supreme Court, Appellate Term, New York. 9th and 10th Judicial Districts.

July 16, 2010.

Anne Marie Caradonna, Sayville and Sweeney & Sweeney, Melville, for appellant.

Kathleen M. Rice, District Attorney, Mineola (Donald Berk and Tammy J. Smiley of counsel), for respondent.

Present: NICOLAI, P.J., TANENBAUM and IANNACCI, JJ.

Appeal from judgments of the District Court of Nassau County, First District (Robert A. Bruno, J.), rendered March 13, 2009. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se and speeding.

ORDERED that the judgments of conviction are affirmed.

Following a jury trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192[2] ) and speeding (Vehicle and Traffic Law § 1180[b] ). At the trial, a Nassau County police officer testified that he was trained to estimate the speed of a moving vehicle and that, on March 11, 2007 at 4:58 A.M., he observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had "one drink." The officer administered a series of field sobriety tests, all of which defendant failed. The officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department's Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of .11 per centum by weight.

Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2,100:1 "conversion" or "partition" ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person's blood from the quantity of alcohol vapor detected in a breath sample. Defendant did not challenge the instrument'sreliability, but sought to lay the foundation for a jury argument that defendant's individual ratio might differ so significantly from the mean as to diminish the evidentiary weight to be accorded the test results. The District Court precluded the evidence, apparently on relevancy grounds.

The scientific accuracy of "[b]reath testing instruments" approved by the New York State Department of Health (New York State Department of Health Regulations [10 NYCRR] § 59.4[a]; see Vehicle and Traffic Law § 1194[4] [c] ) is "no longer open to question" ( People v. Alvarez, 70 N.Y.2d 375, 380, 521 N.Y.S.2d 212, 515 N.E.2d 898 [1987], quoting People v. Mertz, 68 N.Y.2d 136, 148, 506 N.Y.S.2d 290, 497 N.E.2d 657 [1986] ), and the Intoxilyzer 5000 ENis one of those approved instruments (New York State Department of Health Regulations [10 NYCRR] § 59.4[b][4][xx]; [11][ix] ). A consequence of the general acceptance in the scientific community of the reliability of the results of blood alcohol testing by such instruments ( People v. Hughes, 59 N.Y.2d 523, 537, 466 N.Y.S.2d 255, 453 N.E.2d 484 [1983] ) is that it is no longer necessary to establish, through foundational evidence, the reliability of the test results by means of expert testimony ( People v. Hampe, 181 A.D.2d 238, 240, 585 N.Y.S.2d 861 [1992] ). The presumption of reliability extends to the scientific premises underlying the operation of breath test instruments, including the validity of the partition or conversion ratio.

Although the fact, if not the magnitude, of conversion ratio variability is well established ( e.g. People v. McNeal, 46 Cal.4th 1183, 1191-1192, 96 Cal.Rptr.3d 261, 210 P.3d 420, 424-425 [2009]; cf. People v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172 [1971]; see generally, David Polin, Challenges to Use of Breath Tests for Drunk Drivers Based upon Claim that Partition or Conversion Ratio Between Measured Breath Alcohol and Actual Blood Alcohol is Inaccurate, 90 A.L.R.4th 155] ), as a general rule, evidence of such variability may not be introduced to challenge the reliability of instruments that determine blood alcohol levels from the analysis of breath samples ( e.g. People v. McNeal, 46 Cal.4th at 1192, 210 P.3d at 425; Guthrie v. Jones, 202 Ariz. 273, 43 P.3d 601 [2002]; State v. Hanks, 172 Vt. 93, 772 A.2d 1087 [2001]; Morris v. State, Dept. of Admin., Div. of Motor Vehicles, 186 P.3d 575, 581 [Alaska 2008]; State v. Hardesty, 136 Idaho 707, 39 P.3d 647 [2002] ). In the District Court, defense counsel, conceding that "[n]obody knows what [defendant's] ratio was," argued, in effect, that the mere theoretical possibility that defendant's personal conversion ratio so differed from the ratio employed by the Intoxilyzer 5000 EN as to meaningfully diminish the weight to be accorded the test results. Therefore, counsel argued, evidence of conversion ratio variability within the population should be admissible without proof of defendant's own conversion ratio. We disagree.

Absent proof by defendant that his personal conversion ratio differs so significantly from the mean as to materially undermine the weight to be given the test result, it cannot be said that the test so erroneously recorded his blood alcohol content as to render his conviction wrongful. "Evidence, although technically relevant, will be excluded if it is too slight, remote, or conjectural to have a legitimate influence in determining the fact at issue" (Prince, Richardson on Evidence, § 4-103 [Farrell 11th ed.]; see e.g. People v. Petty, 7 N.Y.3d 277, 286, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006]; People v. Mateo, 2 N.Y.3d 383, 424-425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004] ). Thus, the District Court did not abuse its discretion in rejectingdefendant's offer of proof which, while involving matters not theoretically irrelevant, was not shown to have probative value above the "slight, remote, or conjectural" and amounted to little more than an invitation to speculate.

Defendant also argues that Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 129 S.Ct. 2527 [2009] overruled this court's determination in People v. Lebrecht, 13 Misc.3d 45, 823 N.Y.S.2d 824 [App. Term, 9th & 10th Jud. Dists. 2006] that a defendant's confrontation rights ( see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ) are not violated in a driving while intoxicated prosecution when the trial court admits, as business records ( see CPLR 4518), certified copies of the simulator solution certification and the calibration/maintenance documentation in relation to the breath test instrument, offered as part of the foundation requirements for the admission of the blood alcohol test results, without the preparer of those records being available for cross-examination ( see also People v. Stevenson, 21 Misc.3d 128(A), 2008 WL 4344902 [App. Term, 1st Dept. 2008]; People v. Fisher, 9 Misc.3d 1121(A), 2005 WL 2780686 [Rochester City Ct., 2005]; People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870 [Crim. Ct., Queens County 2005] ).

In Melendez-Diaz, the Supreme Court concluded that the State of Massachusetts had denied the defendant his Sixth Amendment confrontation rights by permitting a certified laboratory report of the analysis of a substance seized from the defendant to be offered into evidence without the necessity of presenting the analyst as a witness. Noting that "there is little reason to believe that confrontation will be useless in testing [an analyst's] honesty, proficiency, and methodology" ( Melendez-Diaz, 129 S.Ct at 2538), the Supreme Court excluded from the reach of the business records rule the product of "regularly conducted business activity [the purpose of which] is the production of evidence for use at trial" ( id.) as inherently testimonial. However, the Court also recognized that there exist "[b]usiness and public records [which] are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity's affairs and not for the purpose ofestablishing or proving some fact at trial-they are not testimonial" ( id. at 2539-2540).

Although explicitly declining to offer a "comprehensive definition" of what is testimonial (541 U.S. at 68, 124 S.Ct. 1354), the Court in Crawford identified certain types of evidence as having a "common nucleus" of "testimoniality" (541 U.S. at 52, 124 S.Ct. 1354): "typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact ... [which includes] ex parte in-court testimony" and "extrajudicial statements" such as "affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially" (541 U.S. at 51, 124 S.Ct. 1354 [internal quotations marks and citation omitted] ); but see Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006]. In Lebrecht, we reasoned that Crawford did not apply because the calibration and maintenance documents "were prepared in the course of the certifier's routine official duties [and were] systematically produced in the conduct of [police department] business ... to fulfill an official mandate that the machines be maintained in working order. Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAC test evidence, the certificates did notresult from structured police questioning, they are not created at official request to gather incriminating evidence against a particular individual ... and they did not...