People v. Pealer
| Decision Date | 19 February 2013 |
| Docket Number | No. 9.,9. |
| Citation | 20 N.Y.3d 447,2013 N.Y. Slip Op. 01019,962 N.Y.S.2d 592,985 N.E.2d 903 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Robert PEALER, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
20 N.Y.3d 447
985 N.E.2d 903
962 N.Y.S.2d 592
2013 N.Y. Slip Op. 01019
The PEOPLE of the State of New York, Respondent,
v.
Robert PEALER, Appellant.
No. 9.
Court of Appeals of New York.
Feb. 19, 2013.
[962 N.Y.S.2d 593]
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), for appellant.
Jason L. Cook, District Attorney, Penn Yan, and Hannah E.C. Moore, New York Prosecutors Training Institute, Inc., Albany, for respondent.
[962 N.Y.S.2d 594]
Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod of counsel), and Morrie I. Kleinbart, Staten Island, for District Attorneys Association of the State of New York, amicus curiae.
GRAFFEO, J.
[985 N.E.2d 904]The question presented in this appeal is whether records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines can be offered as evidence in a criminal trial without producing the persons who created the records. We hold that because such documents are nontestimonial, the records are not subject to the Confrontation Clause requirements set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Early one morning in October 2008, the Penn Yan Police Department in Yates County received an anonymous telephone call indicating that someone who was possibly intoxicated had left a particular restaurant and was driving a gray car with a sticker on its rear window. Shortly after receiving this information, a police officer on patrol saw a gray 1996 Subaru and he followed the car for several minutes. After observing the car weaving, he stopped the vehicle for the illegal window sticker ( seeVehicle and Traffic Law § 375 [1] [b][i] ).
The driver, defendant Richard Pealer, stated that he had just left work at the restaurant that had been identified by the tipster. When asked if he had consumed any alcohol, defendant replied that he had “two beers” after finishing his shift. The [985 N.E.2d 905]officer noticed that defendant's eyes were red and glossy, his speech was impaired and defendant had an odor of alcohol. After defendant failed several field sobriety tests and a breath screening test confirmed that defendant had been drinking, he was arrested for driving while intoxicated (see Vehicle and Traffic Law § 1192[3] ).
At the police station, defendant telephoned a lawyer and then agreed to take a breathalyzer test. A breath-test operator conducted the testing and the machine computed defendant's blood alcohol content at .15% (close to twice the legal limit). [20 N.Y.3d 452]Defendant was eventually indicted for felony DWI (defendant had two prior felony DWI convictions).
During the jury trial, the People offered into evidence documents pertaining to the routine calibration and maintenance of the breathalyzer machine used in defendant's breath test, in order to demonstrate that it was in proper working order at the time defendant was tested. Specifically, two of the documents certified that the breathalyzer had been calibrated by the New York State Division of Criminal Justice Services in Albany in September 2008 and March 2009, respectively. The third document stated that a sample of the simulator solution had been analyzed and approved for use in the breathalyzer by the State Police. The People intended to introduce these records through the testimony of the officer who administered the breathalyzer test to defendant.
Defendant raised a Confrontation Clause challenge to these documents, contending that he was entitled to cross-examine the authors of the three records. County Court disagreed and allowed the documents to be received in evidence. The jury found defendant guilty of DWI as a D felony (along with driving while ability impaired) and defendant was later sentenced to a prison terra of 2 1/3 to 7 years.
The Appellate Division affirmed (89 A.D.3d 1504, 933 N.Y.S.2d 473 [4th Dept.2011] ), concluding that no Confrontation Clause error had occurred. It reasoned
[962 N.Y.S.2d 595]
that the breathalyzer documents were neither accusatory nor testimonial because they merely established the functionality of the machine and did not directly prove an element of the charged crimes or specifically inculpate defendant.
A Judge of this Court granted defendant leave to appeal (18 N.Y.3d 961, 944 N.Y.S.2d 489, 967 N.E.2d 714 [2012] ) and we now affirm.
Defendant argues that the People's use of the three breathalyzer records violated his rights under the Confrontation Clause since he was not given an opportunity to cross-examine the persons who performed the testing of the machine or the simulator solution. According to defendant, the records were testimonial in nature since their purpose was to prove that the breathalyzer was in proper working order and, consequently, they were created in anticipation of their use in a criminal proceeding. The People counter that the documents were not testimonial [20 N.Y.3d 453]because they were not generated for use against a specific individual, nor did they establish an element of the crimes charged.
The Confrontation Clause of the Sixth Amendment to the United States Constitution prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination” ( Crawford v. Washington, 541 U.S. at 53–54, 124 S.Ct. 1354). The key inquiry focuses on the category that a statement falls into—whether the nature of the statement[985 N.E.2d 906]or record is testimonial or nontestimonial ( see Michigan v. Bryant, 562 U.S. ––––, ––––, 131 S.Ct. 1143, 1152–1153, 179 L.Ed.2d 93 [2011];Davis v. Washington, 547 U.S. 813, 823–824, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006] ). “[T]he basic objective of the Confrontation Clause ... is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial” and a statement will be treated as testimonial only if it was “procured with a primary purpose of creating an out-of-court substitute for trial testimony” ( Michigan v. Bryant, 562 U.S. at ––––, 131 S.Ct. at 1155). If a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence rather than the Sixth Amendment ( see id.).
Based on relevant precedent, we have identified two factors that are “especially important” in resolving whether to designate a statement as testimonial—“first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing” ( People v. Rawlins, 10 N.Y.3d 136, 156, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008],cert. denied sub nom., Meekins v. New York, 557 U.S. ––––, 129 S.Ct. 2856, 174 L.Ed.2d 601 [2009] ). Furthermore, the “purpose of making or generating the statement, and the declarant's motive for doing so,” also “inform these two interrelated touchstones” ( People v. Rawlins, 10 N.Y.3d at 156, 855 N.Y.S.2d 20, 884 N.E.2d 1019).
We have held that the Confrontation Clause applies to an affidavit of an employee of the Department of Motor Vehicles attesting to the revocation of an accused's license in a prosecution for aggravated unlicensed operation of a motor vehicle in the first degree because the document had an accusatory purpose in that it provided proof of an element of the crime and resembled testimonial hearsay ( see People v. Pacer, 6 N.Y.3d 504, 512, 814 N.Y.S.2d 575, 847 N.E.2d 1149 [2006] ). Similarly, fingerprint comparison reports that directly linked the accused to the charged crimes “could be nothing but testimonial”
[962 N.Y.S.2d 596]
( People v. Rawlins, 10 N.Y.3d at 157, 855 N.Y.S.2d 20, 884 N.E.2d 1019). The same held true for an affidavit identifying a substance connected to the [20 N.Y.3d 454]defendant as cocaine ( see Melendez–Diaz v. Massachusetts, 557 U.S. 305, 310–311, 129 S.Ct. 2527, 174 L.Ed.2d 314 [2009] ) and a report certifying that the accused's blood alcohol content was above the legal limit ( see Bullcoming v. New Mexico, 564 U.S. ––––, ––––, 131 S.Ct. 2705, 2716–2717, 180 L.Ed.2d 610 [2011] )—both of these documents were generated for law enforcement purposes in order to establish a necessary element of the charged offenses.
In contrast, we determined that a graphical DNA report that did not explicitly tie the accused to a crime was deemed to be nontestimonial since it “shed no light on the guilt of the accused in the absence of an expert's opinion that the results genetically match a known sample” (People v. Rawlins, 10 N.Y.3d at 159, 855 N.Y.S.2d 20, 884 N.E.2d 1019;see also People v. Brown, 13 N.Y.3d 332, 340–341, 890 N.Y.S.2d 415, 918 N.E.2d 927 [2009];Williams v. Illinois, 567 U.S. ––––, ––––, 132 S.Ct. 2221, 2243, 183 L.Ed.2d 89 [2012, plurality op.] [“the primary purpose of the (DNA) report, viewed objectively, was not to accuse (the) petitioner or to create evidence for use at trial.... (I)ts primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against (the) petitioner, who was neither in custody nor under suspicion at that time”] ). A similar conclusion applied to an autopsy report prepared by a civilian agency in that it was a contemporaneous, objective account of observable [985 N.E.2d 907]facts that did not link the commission of the crime to a particular person ( see People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008] ).
We now consider these principles in assessing the admissibility of the breathalyzer calibration and maintenance documents in this case. As our case law makes clear, to determine whether these records are the functional equivalent of in-court testimony, it is necessary to identify the primary purpose for their creation by evaluating the following factors:
“(1) whether the agency that produced...
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