This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 157
The People &c.,
            Respondent,
        v.
Roy S. Kangas,
            Appellant.




          Mark C. Curley, for appellant.
          Steven G. Cox, for respondent.




MEMORANDUM:
          The order of County Court should be affirmed.
          During a jury trial on charges of driving while
intoxicated, defendant objected to the admission into evidence of
the People's exhibit containing a record of testing of the
simulator solution used during the breath test that the police

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administered to defendant.   Defendant objected on the ground that
the certifications contained within the exhibit did not include a
verification to show that the record could not be tampered with
pursuant to CPLR 4539 (b).   The trial court admitted the exhibit
into evidence over defendant's objection.
           On appeal, County Court correctly held that CPLR 4539
(b) does not apply to documents, such as the record of simulator
solution testing, that were originally created in electronic
form.   Subdivision (b), which was added to CPLR 4539 in 1996
(see L 1996, ch 27, § 1), requires an authentication "by
competent testimony or affidavit" to include information about
"the manner or method by which tampering or degradation of the
reproduction is prevented" when "[a] reproduction [is] created by
any process which stores an image of any writing, entry, print or
representation" (CPLR 4539 [b] [emphasis added]).   CPLR 4539 (a),
in turn, allows "reproduction[s]" made "in the regular course of
business" to be admissible as the original.   Thus, CPLR 4539 (b)
applies only when a document that originally existed in hard copy
form is scanned to store a digital "image" of the hard copy
document, and then a "reproduction" of the digital image is
printed in the ordinary course of business (see CPLR 4539 (a),
(b); see generally People v Rath, 41 Misc 3d 869, 872-880 [Nassau
Dist Ct 2013]; Vincent C. Alexander, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, CPLR 4539 at 752-754 [2007
ed]).   Inasmuch as the record of simulator solution testing was


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created electronically in the first instance, and was not scanned
to create an "image" of a hard copy document, County Court
properly concluded that the certification need not comply with
CPLR 4539 (b).
          County Court correctly held that the applicable statute
is CPLR 4518 (a), which was amended in 2002 (see L 2002, ch 136,
§ 1) to provide that an "electronic record . . . shall be
admissible in a tangible exhibit that is a true and accurate
representation of such electronic record" (CPLR 4518 [a]).     The
statute further provides that the court "may consider the method
or manner by which the electronic record was stored, maintained
or retrieved in determining whether the exhibit is a true and
accurate representation of such electronic record," but "[a]ll
other circumstances of the making of the memorandum or record
. . . may be proved to affect its weight," and "shall not affect
its admissibility" (id. [emphasis added]).
          The 2002 amendment to CPLR 4518 (a) was adopted by the
legislature upon the recommendation of the Chief Administrative
Judge's Advisory Committee on Civil Practice specifically because
the Committee and the legislature concluded that CPLR 4539 (b)
had no application to documents originally created in electronic
form.
          "CPLR 4539, which deals with reproductions
          such as carbon copies of photocopies, is not
          an adequate vehicle for providing for the
          introduction of exhibits derived from
          electronic records. This is because CPLR
          4539 requires that the reproduction itself

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          have been created in the ordinary course of
          business. It is anticipated that reliable
          recompilations of electronic records often
          would not have been created in the ordinary
          course of business. CPLR 4539(b), in dealing
          with reproductions through processes which
          store an image, and which processes do not
          permit alterations, deletions or changes
          without leaving a record of such additions,
          does not generally address database records
          and could impose technical impediments to
          admissibility based on difficulty and proof
          of the protections against undetectable
          alteration. The 1996 legislation that added
          subdivision (b) ensures that an electronic
          image of a document may be introduced into
          evidence in the same manner as the original
          document and allows for paper intensive
          industries to safely dispose of hard copy and
          archive only optically-scanned images.
          However, the 1996 legislation does not deal
          with technologies that record information
          other than through an image, and also such
          legislation could have the unintended effect
          of restricting the admissibility of
          electronic records not stored with the
          technology described in the legislation"
          (Senate Mem in Support of L 2002, ch 136,
          2002 McKinney's Session Laws of NY, at 1763;
          see also Rath, 41 Misc 3d at 876-880; Vincent
          C. Alexander, Practice Commentaries,
          McKinney's Cons Laws of NY, Book 7B, CPLR
          4518 at 454-455 [2007 ed]).
          Contrary to defendant's further contention, County
Court properly held that the record of simulator solution testing
and the records pertaining to the maintenance and calibration of
the breath test instrument were admissible based upon the
attached state agency certifications, and County Court did not
err in disregarding the inaccurate certifications submitted by
the Oneida County Sheriff's Office with respect to those records.
The trial court also relied upon the state agency certifications


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when admitting the documents into evidence, and therefore County
Court did not violate CPL 470.15 (1) in concluding that the
records were admissible based on those certifications (see People
v Nicholson, 26 NY3d 813, 825 [2016]).      Finally, we reject
defendant's contention that the state agency certifications
attached to the records of maintenance and calibration of the
breath test instrument did not comply with CPLR 4518 (c).
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *      *   *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided October 20, 2016




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