This proceeding is an appeal from a judgment of the Yates County Court rendered 8 December 2009. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired and driving while intoxicated.
The court affirms the judgment appealed from.
On appeal from a judgment convicting him following a jury trial of, inter alia, felony driving while intoxicated DWI Vehicle and Traffic Law § 1192 ; § 1193  [c] [ii], defendant contends that County Court erred in admitting in evidence breath test calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. According to defendant, the admission of those records in evidence violated his rights under the Confrontation Clause of the Fifth Amendment to the United States Constitution under Crawford v Washington.
The court rejects that contention. The simulator solution certificate is a certified document indicating that a given sample of simulator solution contains a certain percentage of alcohol. The breath test calibration certificate is a certified document indicating that a breath test machine accurately measured a given sample of simulator solution to within plus or minus .01% weight per volume. Breath test calibration certificates are generated by employees of the New York State Division of Criminal Justice Services, while simulator solution certificates are generated by employees of the New York State Police. Both are used to establish that the breath test machine used in a particular case is accurate, a necessary foundational requirement for the admission of breath test results as ruled in People v Merts. Here, the People offered the breath test documents in evidence, and the court admitted them as business records pursuant to CPLR 4518 (c), over defendant’s objection that such admission violated his right under Crawford to confront the government employees who certified the results.
Crawford v Washington and People v Brown held that the Confrontation Clause bars the admission of testimonial out-of-court statements made by a witness who is not subject to cross-examination. The United States Supreme Court in Crawford explicitly declined to spell out a comprehensive definition of testimonial, but it stated that some statements qualify under any definition[, including] ex parte testimony at a preliminary hearing and statements taken by police officers in the course of interrogations. Since Crawford was decided, courts have struggled to come up with a comprehensive definition of the term “testimonial,” but one factor that must be considered is the degree to which a statement is deemed accusatory, i.e., whether it seeks to establish facts essential to the elements of the crimes as ruled in People v Encarnacion, Melendez- Diaz v Massachusetts and People v Rawlins.
In the case at bar, the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant’s guilt or innocence as ruled in People v Damato and People v Bush. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, as held in People v Freycinet, the government employees who prepared the records were not defendant’s accusers in any but the most attenuated sense and the breath test documents were properly admitted in evidence over defendant’s objection based on the Confrontation Clause.
To Be Cont…
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