People v. Pantaleo

• Decision Date: 30 November 1988
• Citation: 141 Misc.2d 251,536 N.Y.S.2d 369
• Parties: The PEOPLE of the State of New York v. William PANTALEO, Defendant.
• Court: New York City Court

Page 369

536 N.Y.S.2d 369

141 Misc.2d 251

The PEOPLE of the State of New York v. William PANTALEO, Defendant.

Criminal Court of the City of New York,

New York County, Part Jury 7.

Nov. 30, 1988.

Robert M. Morgenthau, New York City, Dist. Atty., New York County (Kenneth Gresham, Brooklyn, of counsel), for the People.

Robert M. Baum, The Legal Aid Soc. (Maria Tobia, Brooklyn, of counsel), for defendant.

RENEE A. WHITE, Judge:

The defendant was arraigned and charged with two counts of driving while intoxicated (Vehicle and Traffic Law § 1192), unclassified misdemeanors. Within two hours of his arrest the defendant submitted to a breathalyzer test which indicated a blood alcohol content greater than .10 of 1% of alcohol. The defendant now moves pursuant to CPL § 710.20(5) to suppress and preclude the People from introducing the breathalyzer test result at trial on the grounds that the ampoule solution used to test the defendant was improperly prepared and that the integrity of the solution and its propriety for use in the breath testing cannot be established.

THE PARTIES' CONTENTIONS

The basis of defendant's motion is a report issued by the Auditor General of the State of Pennsylvania in December 1987. The report details the findings of an investigation of Systems Innovation, Inc. (hereinafter referred to as SII), which manufactures and supplies the ampoules and simulator solution used in the breathalyzer tests administered in New York State. ¹ The Certificate of Analysis of the breathalyzer ampoule used to test the defendant indicates that a sample of ampoules from lot numbers 0916 and 1027 were supplied to In substance, the report contends that the procedures used in the preparation and manufacture of the ampoules as well as the simulator solution are sloppy, and the chemical composition of the product is not reliable. The Auditor General questions the lack of written procedures, the failure of the lab to use distilled water, and the failure to use USP certified ethyl alcohol. The report warns that by failing to comply with proper scientific procedures the credibility of the entire breath testing program is jeopardized.

the New York State Police Crime Laboratory by SII. The arresting officer's report reflects that the ampoules used to test the defendant were from the same lot numbers 0916 and 1027.

Of particular importance, the report charges that inadequate records are kept which may permit "lot switching." In theory, the ampoule solution is prepared in large quantities and given a numerical designation. The solution is then bottled into the individual glass ampoules, each containing the numerical designation of the original lot or vat. Samples taken from the same lot should be homogeneous. The assumption is that a sample from a particular lot would necessarily reflect the composition of the entire lot. However, the defendant argues that because of the alleged inaccurate procedures utilized at SII, "is no way of knowing whether the samples sent to the State Police Lab reflect the quality and/or chemical composition of the ampoules contained in the bulk lot bearing the same lot number." (see Defendant's Motion to Suppress, par. 12).

The report concludes that "laboratory procedures being utilized at Systems Innovation, Inc. laboratory located in a back room of a Radio Shack Store in Hallstead, Pennsylvania do not meet national scientifically acceptable quality control standards." (Emphasis in original.) Bureau of Investigations of the Department of Auditor General of the State of Pennsylvania Report, at 3 (1987).

In opposition to defendant's motion to suppress, the People deny the factual allegations set forth by the defendant. The People uphold the integrity of the ampoules and simulator solution used in the prosecution of this case. In addition, the People refer to the fact that the Attorney General of the State of Pennsylvania conducted its own investigation of SII and repudiated the findings of the Auditor General. In a letter to the Auditor General, dated November 2, 1988, the Attorney General wrote:

Your report concludes that test solutions provided by SII were "flawed and totally unreliable." Based on our comprehensive investigation of this matter, we have concluded that the statement is erroneous and misleading. Our investigation confirms that the equipment and solutions being used in this Commonwealth are accurate.

at p. 2.

DISCUSSION AND APPLICABLE LAW

The issue the court must address is whether, in light of the report issued by the Auditor General of Pennsylvania, the breathalyzer test result is unreliable and therefore inadmissible.

The standard for admissibility of scientific evidence was established in the landmark case, Frye v. United States, 293 F. 1013 (District of Columbia, 1923). In Frye, the court ruled that scientific evidence will only be admitted at trial if the procedure and results are generally accepted as reliable in the scientific community. The Frye standard was later applied to breathalyzer test results. People v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172 (4th Dept., 1971).

In Donaldson, supra, the court held:

It is no longer necessary to require expert testimony to establish the general reliability of the machine ... time has come when we may recognize the general reliability of the Breathalyzer as a device for measuring the concentration of alcohol in the blood, and that it is not necessary to require expert testimony as to the nature, function or scientific principles underlying it.

Id. at 40, 319 N.Y.S.2d 172.

All elements of a proper foundation must be met to insure that the chemical In People v. Ventafido, Ind.N. 3452, (Cayuga County, March 14, 1988), a suppression hearing was held on the exact issue presently before this court. After examining the integrity of the ampoules from lot number 0916 supplied by SII, the court ordered the suppression of the breathalyzer test stating that "could be no scientifically reliable result shown to the jury." Id. at 3.

test is accurate and reliable. It is well settled that prior to the admission of the breathalyzer test results, the People are required to lay a proper foundation from which the trier of facts could reasonably conclude that the testing device was in proper working condition, and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions. People v. Alvarez, 70 N.Y.2d 375, 521 N.Y.S.2d 212, 515 N.E.2d 898 (1987); People v. Freeland, 68 N.Y.2d 699, 506 N.Y.S.2d 306, 497 N.E.2d 673 (1986); People v. Gower, 42 N.Y.2d 117, 397 N.Y.S.2d 368, 366 N.E.2d 69 (1977); People v. Todd, 38 N.Y.2d 755, 381 N.Y.S.2d 50, 343 N.E.2d 767 (1975); People v. Donaldson, supra; People v. Meikrantz, 77 Misc.2d 892, 351 N.Y.S.2d 549 (County Court, Broome County, 1974).

The Ventafido holding, however, is not binding on this court. It is apparent that the court's decision in that case primarily relied upon the report of the Auditor General of Pennsylvania. The results of the investigation of the Attorney General of Pennsylvania, which completely disavowed the findings in the report of the Auditor General, were not available until after that decision was rendered. Furthermore, an affidavit of Dr. Maurice Dutton, SII's Vice President, states that the product "delivered to law enforcement agencies is from the same lot approved by state certifying authorities." (see People's Response to Defendant's Motion to Suppress, exhibit B, at par. 5). Additionally, the affidavit of Robert W. Horn, Director of the Police Crime Laboratory System, indicates that random ampoules from lot 0916 and simulator solution in lots 1027, 0698 and 0828 have been recently tested and meet the accepted standards. (see People's Response to Defendant's Motion to Suppress, exhibit C, at par. 7).

After a review of the motion papers, including the exhibits and affidavits, the court is not persuaded that the ampoule solution used to test the defendant was improperly prepared, thereby rendering the breathalyzer test inadmissible at trial. In order for the court to summarily grant defendant's motion to suppress, the papers must state the ground of the motion, contain sworn allegations of fact and the People must concede the truth of these allegations. CPL § 710.60(2). The People, as well as the Attorney General of Pennsylvania, vehemently contest the allegations contained in the report of the Auditor General. Clearly, defendant's submissions fail to require a determination that the People cannot...