        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1092
KA 11-01024
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT PEALER, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JASON L. COOK, DISTRICT ATTORNEY, PENN YAN (MEGAN PETER OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered December 8, 2009. The judgment convicted
defendant, upon a jury verdict, of driving while ability impaired and
driving while intoxicated.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, felony driving while intoxicated ([DWI]
Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [ii]), defendant
contends that County Court erred in admitting in evidence breath test
calibration and simulator solution certificates (collectively, breath
test documents) 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
Sixth Amendment to the United States Constitution (see generally
Crawford v Washington, 541 US 36, 50-54). We reject 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 (see People v Mertz, 68 NY2d 136, 148). 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
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                                                        KA 11-01024

objection that such admission violated his right under Crawford to
confront the government employees who certified the results.

     The Confrontation Clause bars the admission of testimonial out-
of-court statements made by a witness who is not subject to cross-
examination (see generally Crawford, 541 US at 50-54; People v Brown,
13 NY3d 332, 338). The United States Supreme Court in Crawford
explicitly declined “to spell out a comprehensive definition of
‘testimonial’ ” (541 US at 68), but it stated that “some statements
qualify under any definition[, including] ex parte testimony at a
preliminary hearing[ and s]tatements taken by police officers in the
course of interrogations” (id. at 52). 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 crime[s]”
(People v Encarnacion, 87 AD3d 81, 90; see Melendez-Diaz v
Massachusetts, ___ US ___, 129 S Ct 2527, 2532; People v Rawlins, 10
NY3d 136, 151-152, cert denied sub nom. Meekins v New York, ___ US
___, 129 S Ct 2856).

     Here, 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 (see People v Damato, 79 AD3d 1060,
1061-1062; see also People v Bush, 66 AD3d 1488, lv denied 13 NY3d
905). 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, the
government employees who prepared the records were “not defendant’s
‘accuser[s]’ in any but the most attenuated sense” (People v
Freycinet, 11 NY3d 38, 42), and the breath test documents were
properly admitted in evidence over defendant’s objection based on the
Confrontation Clause (see Damato, 79 AD3d at 1061-1062; People v
Lebrecht, 13 Misc 3d 45, 47-49; Green v DeMarco, 11 Misc 3d 451, 465-
468).

     Contrary to defendant’s contention, this case is distinguishable
from Bullcoming v New Mexico (___ US ___, 131 S Ct 2705, 2710), in
which the Supreme Court held that the Confrontation Clause barred the
admission in evidence of a forensic laboratory report certifying the
defendant’s blood alcohol content. In Bullcoming, the prosecution
sought to admit evidence establishing that the defendant was
intoxicated, which was an element of the crime charged (id. at 2709-
2710). Here, in contrast, the breath test documents were offered
merely to show that the breath test machine functioned properly, which
is not an element of DWI. We note that the Supreme Court stated in
Melendez-Diaz that “documents prepared in the regular course of
equipment maintenance may well qualify as nontestimonial records” (___
US at ___ n 1, 129 S Ct 2532 n 1). The breath test documents at issue
here are precisely the sort of documents to which the Supreme Court in
Melendez-Diaz was referring. Although the footnote in Melendez-Diaz
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                                                         KA 11-01024

is dicta, we find it to be persuasive, and it is indicative of how the
Court would rule on the issue. It is also consistent with the Court
of Appeals’ interpretations of the Confrontation Clause (see e.g.
Freycinet, 11 NY3d at 41-42; Rawlins, 10 NY3d at 152-154).

     Defendant further contends that the court erred in refusing to
suppress all evidence obtained by the police following the stop of his
vehicle. We reject that contention. The arresting officer stopped
defendant’s vehicle because it had an unauthorized sticker on the rear
window, in violation of Vehicle and Traffic Law § 375 (1) (b) (i).
According to defendant, the stop was unlawful because the officer’s
primary motivation in stopping the vehicle was to investigate an
anonymous tip that defendant was intoxicated, and the unauthorized
sticker was a mere pretext to allow the officer to accomplish that
purpose. Regardless of whether the stop was pretextual in nature, the
court properly refused to suppress the evidence in question. As the
Court of Appeals has explained, “where a police officer has probable
cause to believe that the driver of an automobile has committed a
traffic violation, a stop does not violate [the state or federal
constitutions, and] . . . neither the primary motivation of the
officer nor a determination of what a reasonable traffic officer would
have done under the circumstances is relevant” (People v Robinson, 97
NY2d 341, 349; see Whren v United States, 517 US 806, 812-813). We
note that defendant does not dispute that he committed a traffic
infraction in the officer’s presence by having the unauthorized
sticker on his vehicle’s window.

     We have reviewed defendant’s remaining contentions and conclude
that they are either unpreserved for our review or without merit.




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
