People v. Schafer

• Decision Date: 06 June 2019
• Docket Number: 2017-1396 S CR
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher SCHAFER, Appellant.
• Court: New York Supreme Court — Appellate Term

64 Misc.3d 44

104 N.Y.S.3d 514

The PEOPLE of the State of New York, Respondent,

v.Christopher SCHAFER, Appellant.

2017-1396 S CR

Supreme Court, Appellate Term, New York.

Decided on June 6, 2019

Scott Lockwood, for appellant.

Suffolk County District Attorney (Timothy P. Finnerty of counsel), for respondent.

PRESENT: THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ.

ORDERED that the judgment convicting defendant of driving while intoxicated (per se) and of driving while intoxicated (common law) is affirmed; and it is further,

ORDERED that so much of the appeal as is from the judgment convicting defendant of failing to signal before turning is dismissed as abandoned.

Insofar as is relevant to this appeal, the People charged defendant on July 27, 2013, in an information, with driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2 ] ) and driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3 ] ), and, in a simplified traffic information, with failing to signal before turning ( Vehicle and Traffic Law § 1163 [b] ). The information alleged, among other things, that defendant had operated a motor vehicle while intoxicated and with a blood alcohol content of .14 of one per centum by weight.

Prior to the trial, the District Court (Karen M. Wilutis, J.) granted defendant's request for subpoenas duces tecum directed at the New York State Police Forensic Investigation Center (Forensic Investigation Center) and the New York State Division of Criminal Justice Services for the production of "all chromatograms, laboratory notes, and any other documentary materials relating to the testing," and "all documents relating to the purchase and delivery of simulator solution ... including ... any receipts, bills of lading, purchase orders, shipping and billing documents, and any other materials relating to the purchase and receipt of the aforementioned simulator solution lot." An additional subpoena, directed at the Suffolk County Police Department, sought "all documents relating to the Intoxilyzer-Alcohol Analyzer Model 5000, Instrument Serial Number 6-005209, including ... all documents from CMI, Inc., ... brochures, operator manuals, purchasing documents, warranties, and/or extended warranties, all repair and/or maintenance documents maintained by the Suffolk County Police Department, any return material authorization (RMA) forms, and all calibration records for the machine maintained by the Suffolk County Police Department." However, the same court denied defendant's request to subpoena the state official who had certified the results of simulator solution lot tests. The court (Karen M. Wilutis, J.) subsequently granted motions by the Forensic Investigation Center and the Suffolk County Police Department to quash the subpoenas directed at them. After a suppression hearing, the court denied defendant's motion to suppress his arrest scene admission relating to alcoholic beverage consumption. Insofar as is relevant to this appeal, following a jury trial (Janine A. Barbera-Dalli, J.), defendant was convicted of driving while intoxicated, per se and common law, and of failing to signal before turning.

Defendant contends that the granting of the motions to quash the subpoenas and the refusal to authorize a subpoena to the state official denied him his right to discovery and to present a defense. Defendant further asserts that his statement should have been suppressed and that the foundation proof for the admissibility of the blood alcohol test results was legally insufficient. As defendant raises no issue on the appeal with respect to the propriety of the judgment convicting him of failing to signal before turning, so much of the appeal as is from that judgment is dismissed as abandoned.

The granting of the motions to quash the subpoenas duces tecum, under the circumstances presented, represented a provident exercise of discretion. Discovery in a criminal proceeding is governed, and generally limited, by CPL 240.20 ( People v. DaGata , 86 N.Y.2d 40, 44, 629 N.Y.S.2d 186, 652 N.E.2d 932 [1995] ; see People v. Colavito , 87 N.Y.2d 423, 427, 639 N.Y.S.2d 996, 663 N.E.2d 308 [1996] ["Items not enumerated in article 240 are not discoverable ... unless constitutionally or otherwise specially mandated"]; Matter of Johnson v. Sackett , 109 A.D.3d 427, 429, 970 N.Y.S.2d 546 [2013] ), such as the right of "access to exculpatory information" ( People v. DaGata , 86 N.Y.2d at 44, 629 N.Y.S.2d 186, 652 N.E.2d 932 ). The subpoena duces tecum authorized by CPL 240.20 (see CPLR 2307 ) may not otherwise be employed "for the purpose of discovery or to ascertain the existence of evidence" or "to expand the discovery available under existing law," but only to "compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" ( Matter of Terry D. , 81 N.Y.2d 1042, 1044-1045, 601 N.Y.S.2d 452, 619 N.E.2d 389 [1993] [internal quotation marks omitted]; see e.g. People v. Robinson , 53 A.D.3d 63, 67, 860 N.Y.S.2d 159 [2008] ; People v. Russo , 149 A.D.2d 255, 262, 545 N.Y.S.2d 211 [1989] ; People v. Gray , 58 Misc 3d 155[A], 2018 N.Y. Slip Op. 50184[U], 2018 WL 894696, *1 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018] ; see also People v. Gower , 42 N.Y.2d 117, 121, 397 N.Y.S.2d 368, 366 N.E.2d 69 [1977] ). "A showing that certain documents carry a potential for establishing relevant evidence is insufficient; instead, a defendant must put forth some factual predicate which would make it reasonably likely that documentary information will bear relevant and exculpatory evidence" ( Matter of Constantine v. Leto , 157 A.D.2d 376, 378, 557 N.Y.S.2d 611 [1990] [internal quotation marks omitted], affd for reasons stated below 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392 [1991] ; see e.g. People v. Days , 131 A.D.3d 972, 974, 15 N.Y.S.3d 823 [2015] ; People v. Gray , 58 Misc 3d 155[A], 2018 N.Y. Slip Op. 50184[U], 95 N.Y.S.3d 125, *1 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018] ; People v. Vega , 57 Misc. 3d 1012, 1018, 65 N.Y.S.3d 636 [Sup. Ct., Bronx County 2017] ).

As a general rule, in driving-while-intoxicated prosecutions involving a breath test, the test results are admissible if the People establish " ‘that the [testing] machine is accurate, that it was working properly when the test was performed and that the test was properly administered’ " ( People v. Flores , 62 Misc. 3d 46, 51 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018], quoting People v. Campbell , 73 N.Y.2d 481, 484, 541 N.Y.S.2d 756, 539 N.E.2d 584 [1989] ; e.g. People v. Murphy , 101 A.D.3d 1177, 1178, 956 N.Y.S.2d 207 [2012] ). The defense is entitled to challenge, among other things, the sufficiency of the People's proof of the quality of the simulator solution (see People v. Boscic , 15 N.Y.3d 494, 497, 912 N.Y.S.2d 556, 938 N.E.2d 989 [2010] ; see also People v. Alvarez , 70 N.Y.2d 375, 380, 521 N.Y.S.2d 212, 515 N.E.2d 898 [1987] ), specifically, whether the simulator solution is "of the proper kind and mixed in the proper proportion[ ]" ( People v. Freeland , 68 N.Y.2d 699, 700, 506 N.Y.S.2d 306, 497 N.E.2d 673 [1986] ; see e.g. People v. Menegan , 107 A.D.3d 1166, 1167, 967 N.Y.S.2d 461 [2013] ; see also 10 NYCRR 58.1 [l] ). Proof that a breath test instrument is in proper working order is generally satisfied by documentary proof of calibration and maintenance tests performed on the instrument, including the operation of the simulator device, in reasonable proximity to when the breath test was administered (see People v. Boscic , 15 N.Y.3d at 500, 912 N.Y.S.2d 556, 938 N.E.2d 989 ). Among the documents from the Forensic Investigation Center introduced by the People at the trial were certified copies of the "0.10 Simulator Solution Record" for solution lot numbers 13090 and 13140, used to test the simulator's functioning on July 16, 2013 and August 19, 2013, respectively, that is, 11 days prior to and 23 days after defendant's breath test, both of which contain the statement that an analyst, the state official defendant attempted to subpoena, had tested the simulator solution using "headspace gas chromatography

" and had determined that, because the solution contained "the appropriate concentration of ethyl alcohol ... [w]hen this simulator solution is used with a properly operating breath testing instrument, it will provide a a value of 0.10% within acceptable limits."

As to most of the items sought in the subpoena directed at the Forensic Investigation Center, the subpoena lacked the necessary "good faith factual predicate sufficient for a court to draw an inference that specifically identified materials are reasonably likely to contain information that has the potential to be both relevant and exculpatory" ( People v. Kozlowski , 11 N.Y.3d 223, 241, 869 N.Y.S.2d 848, 898 N.E.2d 891 [2008] ; see People v. Gissendanner , 48 N.Y.2d 543, 550, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ; Matter of Constantine v. Leto , 157 A.D.2d at 378, 557 N.Y.S.2d 611 ). A mere implication that the documents sought "carry a potential for establishing relevant evidence" is insufficient; instead, a defendant must allege facts from which it may be determined that it is "reasonably likely that documentary information will bear relevant and exculpatory evidence" ( Matter of Constantine v. Leto , 157 A.D.2d at 378, 557 N.Y.S.2d 611 ). Most of the items identified in the subpoena had no more than an incidental association with the procedure by which the state agency obtains and tests the solution lots used by local law enforcement, and the request for these appear to represent nothing more than the attempt to "fish for impeaching material" ( id. ).

While "[d]ocuments relating to headspace gas chromatography

tests" of the simulator solution to determine whether the composition of the solution is properly prepared for use in local testing are potentially discoverable ( Matter of Singas v. Engel...