People v. Robinson

• Decision Date: 10 June 2008
• Docket Number: No. 2006-03716,2006-03716
• Citation: 53 A.D.3d 63,860 N.Y.S.2d 159,2008 NY Slip Op 5533
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DONALD ROBINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 63

860 N.Y.S.2d 159

2008 NY Slip Op 5533

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DONALD ROBINSON, Appellant.

No. 2006-03716

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 10, 2008.

Lynn W. L. Fahey, New York City (William Kastin of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

OPINION OF THE COURT

DICKERSON, J.

We are asked on this appeal first to determine whether the computer source code governing the operation of a breathalyzer machine is subject to disclosure as a written document within the meaning of CPL 240.20 (1) (c) and/or as a document concerning a scientific test or calibration of an instrument utilized to perform a scientific test within the meaning of CPL 240.20 (1) (k). If so, we must then determine whether the People were in possession of the computer source code, and thus obligated to disclose it to the defendant. Finally, we must determine whether the People's inability or failure to provide the computer source code to the defendant in this matter deprived the defendant of a fair trial by undermining his right to challenge the reliability of the particular instrument that police employed to measure the alcohol content of his breath, and consequently calculate his blood alcohol content. Although we hold that the computer source code is indeed a document subject to disclosure, the People were not in possession of it, and thus they could not be compelled to disclose it. In any event, their failure to provide it to the defendant in this case did not deprive him of a fair trial.

The police arrested the defendant on May 13, 2005, after observing him drive through several stop signs and red lights without stopping. Using a breathalyzer machine known as the Intoxilyzer 5000EN (hereinafter the Intoxilyzer), they calculated his blood alcohol content (hereinafter BAC) to be .196%.

Prior to trial, the defendant moved to compel discovery of the computer source code installed in the particular Intoxilyzer that was used to test him, arguing that such disclosure was necessary to challenge the accuracy of the machine. Source codes are the computer instructions followed by a computing device in processing information (see People v Cialino, 14 Misc 3d 999 [2007]). In particular, the defendant claimed that the source code is the program which ran the Intoxilyzer, that it was stored on a removable computer device called an erasable program read only memory (hereinafter EPROM), and that the source code was not publicly available. The defendant further claimed that, without the source code, he was unable to determine how the machine actually operated, and that he would be unable to verify whether there was an error in the computer program that may have led to an inaccurate calculation of his BAC.

The defendant further argued that, pursuant to CPL 240.20 (1), he was entitled to the source code because it constituted a written document relevant to his breath test. He characterized the source code as a "document" stored electronically on the EPROM. The defendant also argued that since computer programs are written documents, the source code was a written report concerning a scientific test within the meaning of CPL 240.20 (1) (k), as it is a computer program which conducts a scientific test.

The defendant also claimed that the People had possession of the source code because it was contained within the machine used to test the defendant and could be taken from that machine by removing the EPROM.

In opposition, the People argued that the source code was not an item subject to discovery pursuant to CPL 240.20, and that, in any event, they had neither direct nor indirect possession of the source code. The People argued that the Intoxilyzer is presumed reliable and that the defendant had not offered any reasonable grounds to show that the Intoxilyzer used to test him had either malfunctioned or might have contained software defects.

The Supreme Court denied the defendant's motion, concluding that: (1) CPL 240.20 (1) did not apply to the source code stored in the internal hardware of a machine, (2) the source code is not a written report, document, or scientific test within the meaning of CPL 240.20 (1) (k), (3) the Intoxilyzer was presumed reliable and was a generally accepted instrument for determining BAC, and (4) the defendant's right of confrontation would not be compromised by the failure of the People to produce the program.

At trial, the People presented the testimony of Andrew Gilsenan, the police officer who administered the defendant's Intoxilyzer test, as well as the calibration test records for the particular Intoxilyzer on which the defendant was tested. Gilsenan testified that he had received 40 hours of training from the New York State Department of Health with respect to arrests of intoxicated drivers and testing with the Intoxilyzer machine, and that he passed a test qualifying him to administer the Intoxilyzer test. Gilsenan explained that individuals tested by the Intoxilyzer blow into a tube, their breath enters a chamber, and the machine employs light waves to measure breath density within the chamber, thus indicating how much alcohol was in the individual's breath, a measurement from which the defendant's BAC could be calculated.

Gilsenan stated that, in order to use the Intoxilyzer, a checklist of startup procedures, including a calibration test, had to be followed to ensure that the machine was working properly. Additionally, he testified that the police laboratory performed calibration tests on Intoxilyzers every two weeks to make sure they were calibrated correctly. Gilsenan testified that if the machine were accurate, the laboratory issued a certificate of calibration. At trial, Gilsenan was shown inspection records for the particular Intoxilyzer used to test the defendant dated May 3, 2005, and May 25, 2005, and he testified that the reports indicated that the machine had been calibrated correctly on both dates.

Gilsenan testified that on May 13, 2005, he tested the defendant with the Intoxilyzer, that he used the operational checklist to determine whether it was measuring BAC accurately, that the Intoxilyzer performed a series of self-checks, that the machine indicated that it was working properly, and that it measured the defendant's BAC at .196%.

The jury found the defendant guilty of, inter alia, driving while intoxicated per se. The defendant appeals and we affirm.

On appeal, the defendant argues that his motion to compel discovery of the computer source code for the Intoxilyzer was improperly denied. He claims that CPL 240.20 provides for discovery of the source code, that the source code was in the People's possession and control, and that without the source code, the defense was unable to challenge the reliability and accuracy of the defendant's breath test.

CPL 240.20 (1) (c)

Pursuant to CPL 240.20 (1) (c), upon a defendant's demand to produce, the prosecution shall disclose:

"Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial."

The Court of Appeals has explained that CPL article 240 evinces a legislative intent that a trial "should not be a sporting event," and that "[b]roader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence" (People v Copicotto, 50 NY2d 222, 226 [1980]).

Indeed, case law has recognized the defendant's right, in prosecutions charging driving while intoxicated and related offenses, to disclosure of various documents not expressly listed in CPL 240.20 (see Matter of Constantine v Leto, 157 AD2d 376, 378 [1990] [records indicating that a machine was not operating properly are discoverable, as are the State Police rules and regulations, the operational checklist, and calibration records]; People v Crandall, 228 AD2d 794, 795 [1996] [documents relating to ampoule analysis and simulator solution analysis are subject to disclosure]; People v Erickson, 156 AD2d 760, 762 [1989] [breathalyzer operator's permit and the weekly test record are subject to disclosure]; People v Di Lorenzo, 134 Misc 2d 1000, 1002-1004 [1987] [several specific documents are subject to disclosure]; see also People v Alvarez, 70 NY2d 375, 380 [1987] [defendant may not be denied discovery which prevents him from challenging the reliability and accuracy of a breathalyzer machine]) (see Gerstenzang and Sills, Handling the DWI Case in New York § 20:39, at 431 [2007-2008 ed]).

Since a computer source code is a species of "text" that must be written onto a computer chip, and "concerns" scientific tests of the particular machine to which it relates, it is, contrary to the People's contention, a written document within the meaning of CPL 240.20 (1) (c).

CPL 240.20 (1) (k)

In the prosecution of an offense proscribed by the Vehicle and Traffic Law, CPL 240.20 (1) (k) provides for the disclosure of:

"any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement...