People v. Torre

• Decision Date: 19 May 2015
• Docket Number: 2014NA005100
• Citation: 2015 N.Y. Slip Op. 25162,48 Misc.3d 745,11 N.Y.S.3d 445
• Parties: The PEOPLE of the State of New York, v. Vincenzo TORRE, Defendant.
• Court: New York District Court

48 Misc.3d 745
11 N.Y.S.3d 445
2015 N.Y. Slip Op. 25162

The PEOPLE of the State of New York
v.
Vincenzo TORRE, Defendant.

2014NA005100

District Court, Nassau County, New York. First District.

May 19, 2015.

11 N.Y.S.3d 446

Madeline Singas, Acting Nassau County District Attorney.

Eric Sachs, Esq., Attorney for Defendant.

Opinion

ANDREW M. ENGEL, J.

48 Misc.3d 746

The Defendant is charged with aggravated driving while intoxicated, two (2) counts of driving while intoxicated, and operating a vehicle outside of the restrictions on his license, in violation of VTL §§ 1192(2), 1192(3) and 530(6), respectively.

The Defendant now moves this court for an order compelling discovery. Specifically, the Defendant seeks an order compelling the People to provide him with the following:

A. For the period of October 15, 2013 to September 15, 2014, any and all documentation, written reports, computer data or records generated of any

48 Misc.3d 747

kind, including, but not limited to, out of service records, concerning periodic operation checks, maintenance checks, calibration checks, field inspections, factory calibrations, or any other test done concerning the Intoxilyzer 5000, Serial Number 68–013839, including, but not limited to, any and all printouts produced from the Intoxilyzer 5000, Serial Number 68–013839, that were generated during calibration checks, including the printouts that are made as a result of the following checks: an invalid sample check, an inhibited RFI check, an invalid

11 N.Y.S.3d 447

test check, an insufficient sample check and an interferent check;

B. Any and all documents, written reports or records generated concerning the work described in the maintenance log kept for the Serial Number 68–013839, for the period of October 15, 2013 to September 15, 2014;

C. Any and all documents concerning the preparation and testing of the Simulator Serial Number 3046, Simulator Solution Lot Number 13320, including the forensic method utilized in the production of the simulator solution i.e., standard operating procedures for the production of any and all simulator solutions produced and utilized in the testing of the Defendant's breath and the actual chromatograms of the headspace gas chromatography (not merely the certifications that the tests were performed) for the period of October 15, 2013 to September 15, 2014; and

D. Any and all other documents generated through the routine maintenance or inspection of the Intoxilyzer 5000, Simulator Serial Number 3046, and Simulator Solution Lot Number 13320, for the period of October 15, 2013 to September 15, 2014.

At the outset it should be noted that the People's opposition is not supported by a proper affirmation. CPLR 2106(a) provides, in pertinent part, “The statement of an attorney admitted to practice in the courts of the state, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of an with the same force and effect as an affidavit.” The People's opposition consists of what purports to be the affirmation

48 Misc.3d 748

of Everett Witherell, Esq. While stated to be affirmed under the penalties of perjury, the document is not signed by Mr. Witherell. Instead, his name was printed thereon, followed by the initials “ CB.” Mr. Witherell having failed to sign this document, it is “of no force or effect (CPLR 2106 ).” American Security Insurance Company v. Austin, 110 A.D.2d 697, 488 N.Y.S.2d 16 (2nd Dept.1985) ; See also Burgos v. Vargas, 33 A.D.3d 579, 822 N.Y.S.2d 297 (2nd Dept.2006) ; Rodriguez v. Chassin, 235 A.D.2d 832, 652 N.Y.S.2d 423 (3rd Dept.1997) ; MZ Dental, P.C. v. Progressive Northeastern Insurance Company, 6 Misc.3d 649, 786 N.Y.S.2d 908 (Dist.Ct. Suffolk Co.2004).

The impropriety of the People's papers notwithstanding, the court finds the arguments contained therein unpersuasive. While recognizing that the documents the Defendant seeks go directly to the calibration, maintenance, repair, testing and operation of the instrument used to test the Defendant's breath, the People take the position that the Defendant is only entitled to records pertaining to the Defendant's breath test itself. The People take the position that because the documents sought might only go to “foundational matter[s] the People do not generally disclose this information.” (Opposition ¶ 8). The People seem to take the position that the Defendant is required to simply accept the People's conclusory “foundational” paperwork, thereby paving the way for the admission of the test results, without challenge, withholding from the Defendant the notes and memoranda created when the simulator solution was created and tested and when the instrument itself was calibrated, maintained, tested and/or repaired. While the People give voice to “[f]airness [being] the ultimate goal of and rationale behind the Criminal Justice System[,]” (Opposition ¶ 58) they appear to overlook a bedrock principle of our adversarial system, “that the best judge of the value of evidence to a defendant's case is the single-minded devotion of counsel for the accused

11 N.Y.S.3d 448

(People v. Baghai–Kermani, 84 N.Y.2d 525, 531[, 620 N.Y.S.2d 313, 644 N.E.2d 1004] ; People v. Flores, 84 N.Y.2d 184, 187[, 615 N.Y.S.2d 662, 639 N.E.2d 19] ; People v. Banch, 80 N.Y.2d 610, 615[, 593 N.Y.S.2d 491, 608 N.E.2d 1069] ; People v. Young, 79 N.Y.2d 365, 371[, 582 N.Y.S.2d 977, 591 N.E.2d 1163] ).” People v. DaGata, 86 N.Y.2d 40, 45, 629 N.Y.S.2d 186, 189, 652 N.E.2d 932 (1995).

The People's interpretation of CPL § 240.20, particularly subparagraphs (1)(c) and (1)(k), may here charitably be described as exceedingly narrow. CPL § 240.20(1)(c) provides:

1. Except to the extent protected by court order, upon a demand to produce by a defendant against whom an indictment, superior court information, prosecutor's

48 Misc.3d 749

information, information, or simplified information charging a misdemeanor is pending, the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing, the following property:

(c) 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.

Subparagraph k of CPL § 240.20(1) explicitly provides, in no uncertain terms:

(k) in any prosecution commenced in a manner set forth in this subdivision alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to this article, any other provision of law, or the constitution of this state or of the United States, 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

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