16-1579-pr
Yancy D. Cook v. Steven R. Bayle, et al.

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
27th day of December, two thousand seventeen.

Present:
                  DEBRA ANN LIVINGSTON,
                  GERARD E. LYNCH,
                          Circuit Judges,
                  JED S. RAKOFF,
                          District Judge.*

_____________________________________

YANCY D. COOK,

                           Petitioner-Appellant,

                  v.                                                    16-1579

STEVEN R. BAYLE, Individually and as Director of
Saratoga County Department of Probation, SUSAN
CONSTANZO, Saratoga County Probation Officer,

                           Respondents-Appellees.

JAMES A. MURPHY, III, Individually and as County
Court Judge, Saratoga County, MATTHEW J.
SYPNIEWSKI, Individually and as Acting County

*
  Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting
by designation.


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Court Judge, Saratoga County, MICHAEL H. ZURLO,
Individually and as County Sheriff for Saratoga
County,

                  Respondents.
_____________________________________

For Petitioner-Appellant:                           BRUCE ROBERT BRYAN, Syracuse, NY

For Respondents-Appellees:                          MATTHEW B. KELLER, Deputy Solicitor
                                                    General (Nikki Kowalsk, Assistant Attorney
                                                    General, Barbara D. Underwood, Solicitor
                                                    General, on the brief), for Eric T.
                                                    Schneiderman, Attorney General for the
                                                    State of New York, New York, NY

          UPON DUE CONSIDERATION WHEREOF IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

          Petitioner-Appellant Yancy D. Cook (“Cook”) appeals from a judgment of the United

States District Court for the Northern District of New York (Kahn, J.), entered on April 22,

2016, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.          We

assume the parties’ familiarity with the facts, procedural history, and specification of issues on

appeal.

I.        Background

          On May 3, 2011, Trooper Kevin Manion of the New York State Police (“NYSP”) was

patrolling in the town of Malta when he observed Cook’s all-terrain vehicle (“ATV”) complete a

right-hand turn without signaling. Manion stopped the vehicle after it pulled into the driveway

of a private residence. Upon approaching Cook, Manion smelled alcohol and noticed that

Cook’s speech was slurring and his eyes were glassy.          He asked Cook whether he had

consumed alcohol, and Cook responded that he had consumed two mixed drinks.               Manion




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administered four field sobriety tests, which Cook failed, and then used a portable screening tool

to test Cook’s breath, which returned a “positive” result for alcohol.

        Manion arrested Cook for Driving While Intoxicated and took him to the state police

barracks. There, Cook agreed to submit to a breathalyzer test.       Manion administered the test

using a Draeger Alcotest Model 9510 (“the breathalyzer”). The breathalyzer reported that

Cook’s blood alcohol content (“BAC”) was .12%. A grand jury indicted Cook for Aggravated

Driving While Intoxicated, in violation of New York Vehicle & Traffic Law § 1192 (2-a)(b)

(with a child), and two counts of Driving While Intoxicated, in violation of New York Vehicle &

Traffic Law §§ 1192 (2) and (3), respectively.

        At trial, Cook argued that he was not legally intoxicated when he was operating his ATV.

The government called Manion to testify about the stop and the administration of the

breathalyzer test.   During Manion’s testimony, the government introduced into evidence

calibration and maintenance records for the breathalyzer Manion used to conduct Cook’s BAC

test.   Specifically, Exhibits 5 and 12 state that the breathalyzer had been calibrated and was

working properly on dates before and after Cook’s breathalyzer test was administered.     Exhibit

6 describes how an analyst tested the breathalyzer’s “reference gas,” a sample with a known

concentration of alcohol that Manion, consistent with police procedures, used to make sure the

breathalyzer was accurate immediately before and after testing Cook’s breath sample.        Cook

objected, arguing that the introduction of these exhibits violated his Sixth Amendment right of

confrontation as interpreted by the United States Supreme Court in Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). The

government responded that the admission of the records did not violate the Confrontation Clause




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because they were non-testimonial. The trial court agreed and admitted the exhibits.     The jury

found Cook guilty as charged on all three counts.

       Cook appealed to the Appellate Division, claiming that the trial court’s admission of

Exhibits 5, 6, and 12 violated his Sixth Amendment confrontation right.            The Appellate

Division, citing People v. Pealer, 20 N.Y.3d 447 (2013), affirmed Cook’s convictions,

determining that the exhibits were non-testimonial in nature because the primary purpose of the

breathalyzer calibration and reference gas records was to document the NYSP’s efforts to ensure

that its equipment was maintained in proper working order. People v. Cook, 975 N.Y.S.2d 505,

2013 N.Y. Slip Op. 07885, at *1–2 (3rd Dep’t 2013).        The New York State Court of Appeals

denied Cook’s application for leave to appeal. People v. Cook, 22 N.Y.3d 1155 (2014).

       In 2015, Cook filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254

challenging his judgment of conviction on the ground that his Sixth Amendment right to confront

witnesses against him was violated when the trial court allowed the introduction of the

calibration and maintenance records without requiring the government to produce the individuals

who had “certified” the records as witnesses for cross-examination.       On April 22, 2016, the

United States District Court for the Northern District of New York (Kahn, J.) denied the petition.

This Court granted Cook a certificate of appealability.

II.    Discussion

       A. Standard of Review

       We review de novo a district court’s disposition of a petition for a writ of habeas corpus.

Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016).      When the petitioner presses a claim that

was “adjudicated on the merits in state court” proceedings, as here, the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (codified


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as amended in scattered sections of 8, 18, 22, 28 and 42 U.S.C.), “obliges federal courts to give

deference to state courts’ decisions.” Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015)

(quotation marks omitted).     We may issue a writ of habeas corpus only when the state-court

adjudication “resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).     As relevant here, a principle is “clearly established Federal law” for

§ 2254(d)(1) purposes “only when it is embodied in a [Supreme Court] holding,” Thaler v.

Haynes, 559 U.S. 43, 47 (2010), framed at the appropriate level of generality, see Nevada v.

Jackson, 569 U.S. 505, 512 (2013) (per curiam) (noting that framing Supreme Court precedent at

too high a level of generality risks “transform[ing] even the most imaginative extension of

existing case law into ‘clearly established Federal law, as determined by the Supreme Court’”

(citing 28 U.S.C. § 2254(d)(1))). An unreasonable application occurs when “the state court

correctly identifies the governing legal principle . . . but unreasonably applies it to the facts of the

particular case,” Bell v. Cone, 535 U.S. 685, 694 (2002), so that “the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement,” Harrington

v. Richter, 562 U.S. 86, 103 (2011).

        B. The Confrontation Right

        “[T]he Confrontation Clause prohibits admission at trial of out-of-court testimonial

statements against a criminal defendant unless the declarant is unavailable and the defendant had

a prior opportunity to cross-examine him.” Washington v. Griffin, — F.3d —, No. 15-3831-PR,

2017 WL 5707606, at *7 (2d Cir. Nov. 28, 2017).           In Crawford v. Washington, 541 U.S. 36,

51–52, 68 (2004), the Court “declined to settle on a precise articulation of the term” testimonial,


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Washington, 2017 WL 5707606, at *7, but has said more recently that a statement is testimonial

if it was made or procured with the primary purpose of “creat[ing] an out-of-court substitute for

trial testimony,” Ohio v. Clark, — U.S. —, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v.

Bryant, 562 U.S. 344, 358 (2011)). But “the Clause does not ‘bar[] every statement that

satisfies the primary purpose test,’” such as “out-of-court statements ‘that would have been

admissible in a criminal case at the time of the founding.’” Washington, 2017 WL 5707606, at

*7 (quoting Clark, 135 S. Ct. at 2180).

          Cook argues that Exhibits 5, 6, and 12 are “identical to the records” in Melendez-Diaz

and Bullcoming, Pet’r Br. at 24, which addressed the meaning of “testimonial” in the context of

laboratory testing of, respectively, purported narcotics and actual blood for its blood alcohol

content.    He argues first that that the records were testimonial because they were created by a

state crime lab “required by law to assist in police investigations.” Id.; see also Bullcoming,

564 U.S. at 665.     Second, the records included certifications that the breathalyzer was “accurate

and reliable.”     Pet’r Br. at 24.   Third, the records were signed by the analysts who performed

the calibration.    Fourth, they had “titles,” “bore the seal of the New York State Police,” and

contained “legalese” and “critical language that qualified the documents for admission as []

business records.”      Pet’r Br. 24–25; see also Bullcoming, 564 U.S. at 665. And fifth, state law

“confirms that breathalyzer calibration and maintenance records were primarily intended for use

in a criminal trial.”   Pet’r Br. at 25 (citing N.Y. C.P.L. § 240.20(1)(k)).   We are not persuaded.

          First, it is not clearly established that all crime lab records are testimonial. Those

“created for the administration of an entity’s affairs and not for the purpose of establishing or

proving some fact at trial” may be introduced at trial without implicating the Confrontation

Clause.     Melendez-Diaz, 557 U.S. at 324.        Nor has the Supreme Court held that records


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accompanied by signatures and a seal are testimonial by virtue of such formalities. See id. at

322–23 (recognizing that “[a] clerk [may] by affidavit authenticate or provide a copy of an

otherwise admissible record”).

       Next, and most significantly, although the records’ creators may have anticipated that

they might be used at trial, what matters is the records’ primary purpose.       See Michigan v.

Bryant, 562 U.S. 344, 368–370 (2011) (acknowledging that individuals making statements often

have “mixed motives” and that a court must “examin[e] the statements and actions of all

participants in determining [a statement’s] primary purpose”).      And here, a reasonable court

could conclude that these records had a primary purpose other than to be a substitute for in-court

testimony.   Unlike the records at issue in Melendez-Diaz and Bullcoming, Exhibits 5, 6, and 12,

while relevant to establish that Cook was guilty, were not created for that purpose. See 557

U.S. at 311; 564 U.S. at 664.    When the relevant breathalyzer tests were performed, the primary

purpose of the tests was to confirm that the breathalyzer worked, “not to obtain evidence for use

against petitioner, who was neither in custody nor under suspicion at that time,” Williams v.

Illinois, 567 U.S. 50, 84 (2012) (plurality).   And irrespective of their evidentiary value, crime

labs are required by New York State health regulations to create and keep these records. See 10

N.Y.C.R.R. §§ 59.4(c), (d). A reasonable jurist could conclude that these records could be

introduced to “establish[] the chain of custody, authenticity of [a] sample, or accuracy of [a]

testing device” without implicating the Confrontation Clause. Melendez-Diaz, 557 U.S. at 311

n.1.

       Finally, the Supreme Court in Melendez-Diaz singled out “documents prepared in the

regular course of equipment maintenance” as possibly qualifying “as nontestimonial records,” in

appropriate circumstances.      Id. In cases involving maintenance records similar to those at


                                                 7
issue here, state and federal courts have concluded that the Confrontation Clause is not

implicated by their admission. See People v. Pealer, 20 N.Y.3d 447, 455–56 & n.1 (2013)

(noting that a “virtually uniform national consensus” of lower courts has held that maintenance

records are not testimonial, and collecting cases); United States v. Razo, 782 F.3d 31, 34 (1st Cir.

2015) (holding that a chemist’s statements about another lab’s “known standard”

methamphetamine sample that her lab employed did not violate the defendant’s Confrontation

Clause rights); see also White v. Woodall, 134 S. Ct. 1697, 1703 n.3 (2014) (noting that

diverging lower court interpretations of Supreme Court precedents “illustrate the possibility of

fairminded disagreement” and may suggest that a proposition is not clearly established for

AEDPA purposes).      In such circumstances, we cannot say that the state court “unreasonably

applied” clearly established Supreme Court precedent “to the facts of [this] particular case,”

Cone, 535 U.S. at 694, such that its decision “was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement,” Richter, 562 U.S. at 103.

                                      Conclusion

         We have considered Cook’s remaining arguments and find them to be moot or without

merit.   Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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