People v. Serrano

• Decision Date: 24 February 1989
• Citation: 142 Misc.2d 1087,539 N.Y.S.2d 845
• Parties: The PEOPLE of the State of New York, v. Juan SERRANO, Defendant. The PEOPLE of the State of New York, v. Afzal HOSEIN, Defendant.
• Court: New York City Court

Page 845

539 N.Y.S.2d 845

142 Misc.2d 1087

The PEOPLE of the State of New York, v. Juan SERRANO, Defendant.

The PEOPLE of the State of New York, v. Afzal HOSEIN, Defendant.

Criminal Court of the City of New York,

Kings County.

Feb. 24, 1989.

Elizabeth Holtzman, Dist. Atty. by Donald Berk, Asst. Dist. Atty., Brooklyn, for the People.

Office of Robert M. Baum, Legal Aid Soc. by Deborah L. Siner, Brooklyn, for defendant Serrano.

Gary Cohen, Brooklyn, for defendant Hosein.

JOSEPH KEVIN McKAY, Judge.

INTRODUCTION

Defendants are each charged with violating VTL § 1192(2), the intoxicated driving statute, and related counts. They have moved separately on papers--consolidated for purposes of this motion and hearing only--for suppression or preclusion of the breathalyzer results before trial on grounds that certain chemical products (ampoules and simulator solutions) used in the breathalyzer machine (the Smith & Wesson Model 900A) to test their blood alcohol content ("BAC") cannot be shown to have been scientifically reliable. Armed with an investigative report from the Auditor General of the Commonwealth of Pennsylvania highly critical of Systems Innovation, Inc. ("SII"), the supplier of these products, defendants attacked the professionalism and scientific reliability of the entire SII operation and the products it manufactured from 1986 until early 1988.

The District Attorney cross-moved to preclude any use at trial of the Auditor General's Report and submitted a letter from the Pennsylvania Attorney General's Office which summarized his separate investigation and refuted many of the Auditor General's findings and conclusions. The battlelines having been drawn, the Court ordered a pre-trial evidentiary hearing to be held, modelled to some extent on CPL § 710.60, but mindful that this was not strictly a statutory or constitutional suppression hearing. It was one designed to make an in limine evidentiary ruling as a matter of law on the admissibility of the controversial documents relating to the breathalyzer products supplied by SII and their impact on the admissibility of the breathalyzer test results obtained in these cases. ¹

BACKGROUND

It is now well-settled that the breathalyzer is a scientifically reliable instrument which, assuming certain conditions are met, is capable of producing an accurate measurement of a suspect's BAC. People v. Alvarez, 70 N.Y.2d 375, 380, 521 N.Y.S.2d 212, 515 N.E.2d 898 (1987); People v. Mertz, 68 N.Y.2d 136, 148, 506 N.Y.S.2d 290, 497 N.E.2d 657 (1986); 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) and People v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172 (4th Dept.1971). ² Articulated in general terms, the The Smith & Wesson Model 900A breathalyzer uses a photometric system which traps a measured sample of deep lung air from the suspect's breath and runs that sample through a 3 ml chemical solution (50% sulphuric acid in water, .25 mg/ml potassium dichromate and silver nitrate, a catalyst) contained in a small glass test ampoule. The reaction in the test ampoule causes a light-sensitive meter to move proportionately, thereby producing a result which the previously calibrated machine converts from an air-alcohol measurement into a BAC reading by a fixed scientific ratio. These ampoules are ordered from the manufacturer, SII, by the New York City Police Department in large quantities and at regular intervals. ⁴ A major issue at this hearing was the integrity of the chemical solution in these ampoules, which are vital to the integrity and reliability of the breathalyzer testing procedures and its results.

necessary conditions are that the machine must be properly calibrated and in good working order, that the chemicals used must be of the proper kind and mixed in the proper proportions, ³ and finally that the machine must be operated properly during the test. People v. Freeland, supra and People v. Donaldson, supra.

The other product received from SII and used in these cases is called the simulator solution. ⁵ It is supposed to be a .10% solution of alcohol in water, which is used to create a vapor to test the accuracy of the machine before the suspect's breath is actually tested. The same solution is also used as a maintenance device to calibrate the machine periodically.

SCOPE OF HEARING

Given the nature of this hearing, the rules of evidence were relaxed and hearsay was admitted. See CPL § 710.60(4) and People v. Hughes, 59 N.Y.2d 523, 547, 466 N.Y.S.2d 255, 453 N.E.2d 484 (1983) (pre-trial hearing to test reliability of a hypnotized witness). See also, People v. Gatto, supra, and McCormick on Evidence, § 53 at 135-139 [Cleary 3rd ed.]. Both the report of the Auditor General and the Attorney General's response were received into evidence and the parties were given a full opportunity to enlarge their record with live testimony, affidavits, additional exhibits, and transcripts of the testimony of witnesses who had recently testified for the defense or the prosecution in a nearly identical hearing held in an upstate Court. ⁶

THE RECORD

Auditor General's Report

While starting as a routine inquiry into a complaint from a disgruntled consultant of an SII subsidiary, the Auditor General's investigation was expanded and lasted for 10 months from March to December 1987. Based on interviews, on-site inspections and review of records, the Auditor General Generally, it found an unprofessional "laboratory" lacking adequate record-keeping and quality controls. With respect to the simulator solution, the report found that SII used water which was filtered, not distilled, and used 190 proof grain alcohol, not 200 proof U.S.P. certified reagent grade alcohol, which deviated from the contract SII had with the Commonwealth.

generated a report which criticized virtually every facet of SII's operation.

The report was concerned only incidentally with ampoule production because most of the Pennsylvania law enforcement agencies use different machines and SII markets few ampoules within Pennsylvania. It did include criticism of SII's sealing and labeling process for ampoules, but the factual issue concerning the type of mixing process used, which became central in this hearing, appears to have escaped the investigators' attention.

The Pennsylvania Attorney General's Response

The Attorney General's response took issue with the conclusions of the Auditor General's Report and questioned its impartiality, completeness and accuracy in many respects. He noted internal inconsistencies and, citing independent experts, argued that the report exaggerated SII's problems. ⁷

The remainder of the record developed at this hearing consisted of numerous selected exhibits from the Appendix to the Auditor General's Report, the live testimony of a State Police Sergeant from the Traffic Section of Division Headquarters in Albany, the Director of the New York State Police Laboratory and a Detective supervisor from the New York City Police Laboratory, as well as the transcripts of the testimony of two former SII employees. ⁸

STANDARD AND BURDEN OF PROOF

In a typical Fourth Amendment suppression case the People must come forward to show the legality of the police conduct and then the burden shifts to the defense to prove illegality by a preponderance of the evidence in order to exclude otherwise competent evidence because of a constitutional violation. People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 (1971).

Since this proceeding, unlike Berrios, is not a typical suppression case, those rules should not apply. ⁹ Here the defense has put in issue the reliability and competence of a necessary part of the People's own case and it would therefore seem only fair and logical to place the burden of proof upon the prosecution, not the defense. See People v. Hughes, supra. See also People v. Sesman, 137 Misc.2d 676, 681-683, 521 N.Y.S.2d 626 (Crim.Ct., Bronx Co. 1987). ¹⁰ Moreover, the Court of Appeals' most recent pronouncement on this issue expressly left open what degree, nature and quality of proof would be required to admit breathalyzer results into evidence, but never suggested that the burden would be shifted to Accordingly, in analyzing the evidentiary record herein and in determining the outcome, I will require the defense to bear the burden of coming forward initially with proof of the unreliability of SII's controversial products. If that occurs, the burden of proof will then shift to the prosecution to establish admissibility by at least a preponderance of the credible evidence, ¹¹ recognizing that insofar as the breathalyzer results (if ever admitted at trial) may form an element of a count in the People's case, the prosecution would ultimately have to establish the reliability of those results beyond reasonable doubt.

                the defense.  People v. Freeland, supra.   See also People v. Alvarez, supra, and People v. Gower, supra
                

THE ISSUES

I must decide if the certificates of analysis from the New York State Police Laboratory reflecting the chemical integrity of sample ampoules and the simulator solution bearing the same lot numbers as those used to test these defendants have the requisite probative force, assuming the other foundational requirements are met, to permit the breathalyzer test results to be admitted into evidence at trial. People v. Freeland, supra; People v. Donaldson, supra. If the defense comes forward with sufficient evidence to question the reliability of those certificates (on grounds that they cannot be shown to be truly representative of any others bearing the same lot numbers) and if the prosecution fails to overcome that challenge, then the breathalyzer results cannot be admitted into evidence on the basis of those certificates. If that conclusion is reached, alternative positions of the parties will be explored.

DISCUSSION AND ANALYSIS

Without exception,...