This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 10
The People &c.,
            Appellant,
         v.
Hao Lin,
            Respondent.




          Anthea H. Bruffee, for appellant.
          Denise Fabiano, for respondent.




STEIN, J.:
          In this appeal challenging convictions for driving
while intoxicated, defendant argues that the Confrontation Clause
was violated where the police officer who testified at trial
regarding defendant's breath test directly observed the test, but
did not personally administer it.   Because the officer testified

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based on his own observations and conclusions, rather than as a
surrogate for his partner who actually administered the test, and
none of the nontestifying officer's hearsay statements were
admitted against defendant, we hold that defendant's rights under
the Confrontation Clause were not violated.
                                I.
          Defendant was arrested for driving while intoxicated
(DWI) and other traffic offenses.    He was taken to the police
station, where Officers Harriman and Mercado -- who were both
experienced breath analysis operators trained on the Intoxilyzer
5000 -- remained in defendant's presence for the entire breath-
testing procedure.   Harriman administered the breath test to
defendant, progressing through the 13 steps on the police
department checklist and completing the forms related to the test
procedure.   Mercado personally observed the performance of these
tasks, and operated the video recorder that memorialized
defendant's test.
          On defendant's first two attempts to provide a breath
sample, he did not blow properly, so the machine emitted an error
sound, would not give a result, and had to be reset.    On the
third attempt, defendant provided a proper sample.    Mercado
testified that he knew it was proper because the machine did not
make the error sound, and it printed out the result, which was a
blood alcohol content of .25 of one percentum.    Mercado further
testified that a person cannot alter a reading in the machine


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once someone blows into it.
            Prior to defendant's trial, Harriman retired from the
New York Police Department and moved out of state.    Therefore,
Mercado testified at trial regarding the breath test procedure
and results, including his opinion that defendant was
intoxicated.   The 13-step checklist completed by Harriman was not
admitted into evidence.    As relevant here, the jury convicted
defendant of two counts of DWI.    Appellate Term reversed and
remitted for a new trial on those counts (46 Misc 3d 20 [App Term
2014]), holding that defendant's Confrontation Clause rights were
violated.   That court so concluded because Mercado did not
personally observe whether the machine display of the simulator
solution temperature was within the proper range, which was an
essential part of the 13-step operational checklist; the court
also noted that the record did not indicate whether the machine
will perform if the temperature is outside the proper range.      A
Judge of this Court granted the People leave to appeal (25 NY3d
1202 [2015]), and we now reverse.
                                  II.
            In general, the Confrontation Clause of the Sixth
Amendment renders inadmissible the testimony of a witness against
a criminal defendant "unless the witness appears at trial or, if
the witness is unavailable, the defendant had a prior opportunity
for cross-examination" (Melendez-Diaz v Massachusetts, 557 US
305, 309 [2009]; see People v Pealer, 20 NY3d 447, 453 [2013],


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cert denied ___ US ___, 134 S Ct 105 [2013]).     In particular, the
Confrontation Clause is concerned with admission of testimonial
statements made by declarants who are unavailable for cross-
examination (see Williams v Illinois, ___ US ___, ___, 132 S Ct
2221, 2238 [2012]).   Many of the recent Confrontation Clause
decisions of the United States Supreme Court and of this Court
concern documents such as affidavits, certifications and forensic
reports that were introduced without any live testimony, or
through the testimony of a person who was familiar with the
testing procedure in general, but who lacked any direct
connection to the particular defendant's testing (see Bullcoming
v New Mexico, 564 US 647 [2011]; Melendez-Diaz v Massachusetts,
557 US 305 [2009]; People v John, 27 NY3d 294 [2016]).       While the
present case is factually distinguishable, those cases are
instructive.
          In Bullcoming v New Mexico, the United States Supreme
Court determined that the Confrontation Clause was violated by
the introduction of a blood test report through the testimony of
an analyst who was familiar with the general testing procedure,
but "who had neither observed nor reviewed" the analysis of the
defendant's blood (564 US at 655).     The Court held that
information regarding test analysis and results is admissible
only through, or when accompanied by, live testimony of someone
familiar with the particular test and process actually applied to
the defendant's sample (see id. at 661).     The Court reasoned that


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surrogate testimony of an individual who was not involved in the
test at issue is insufficient because it cannot "convey what [the
testing analyst] knew or observed about . . . the particular test
and testing process he [or she] employed" (id. at 661), and
cannot "expose any lapses or lies" by the testing analyst (id. at
662).   As the concurrence in that case acknowledged, "[i]t would
be a different case if, for example, a supervisor who observed an
analyst conducting a test testified about the results or a report
about such results" (id. at 673 [Sotomayor, J, concurring]
[emphasis added]).
           In People v John, this Court ruled similarly -- under
circumstances indistinguishable from those in Bullcoming -- where
a DNA lab report was admitted into evidence "without a testifying
analyst who performed, witnessed or supervised any portion of the
testing" (27 NY3d at 308).   We contrasted the facts in John with
those in People v Brown (13 NY3d 332 [2009]), wherein we
discerned no Confrontation Clause violation because the
testifying witness had supervised the generation of a DNA
profile, and personally examined and independently interpreted
the data (see John, 27 NY3d at 310, citing Brown, 13 NY3d at 337,
340).   While we held in John that it was not necessary for every
person who came into contact with the evidence to appear at
trial, we required that "at least one analyst with the requisite
personal knowledge must testify" (John, 27 NY3d at 313).    Thus,
we concluded that a defendant's Confrontation Clause rights would


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be protected as long as the People presented testimony of "a
single analyst, particularly the one who performed, witnessed or
supervised the generation of the critical numerical DNA profile"
(id. at 314 [emphasis added]).
           Neither the United States Supreme Court nor this Court
has required the primary analyst to testify in every case in
order to protect a defendant's confrontation rights.   Indeed,
both courts have commented that the Confrontation Clause is
satisfied if the trial witness is a trained analyst who
supervised, witnessed or observed the testing, even without
having personally conducted it (see Bullcoming, 564 US at 666;
id. at 673 [Sotomayor, J., concuring]; John, 27 NY3d at 304,
314).   This is so because someone in such a position would be
able to testify not only about the typical testing protocol, but
also about "the particular test and testing process" used in that
defendant's case (Bullcoming, 564 US at 661), thereby permitting
the defendant to adequately cross-examine the witness.
                                 III.
           Applying the rules from those cases, we conclude that
no Confrontation Clause violation occurred here.   Mercado was
personally present during the entire time that Harriman and
defendant were together.   Mercado testified that he was trained
to operate the machine, was very familiar with it, and could tell
whether it was working properly based on Harriman's actions
inputting information and on sounds made by the machine, itself.


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The Appellate Term specifically stated that, even though Mercado
did not personally operate the machine for defendant's test, he
was a certified and experienced operator of the machine and was
able to determine whether it was successfully self-calibrating by
observing Harriman's actions and listening to the machine (see 46
Misc 3d at 24-25).   That court noted that Mercado testified that
he heard and saw nothing to indicate that defendant's third test
was unsuccessful (see id.).   Based on Mercado's testimony that he
saw the machine print out the test results, which testimony the
Appellate Term credited (see id. at 25), he was as capable as
Harriman of reading the printout and introducing it in evidence,
regardless of who operated the machine.    That printout was
generated by the machine based on defendant's breath sample, and
was not a statement by Harriman (compare Bullcoming, 564 US at
660).
          Defendant argues that Mercado did not observe him for
the requisite 20-minute period before the test -- one of the
essential 13 steps of the checklist.    While Harriman was
responsible for completing the paperwork and was listed as the
person who observed defendant, Mercado testified that he was also
present with defendant for the entire testing procedure,
including the pre-test observation period.    According to Mercado,
he knew, based on what he saw and heard, that defendant did not
engage in any activity during that time that could have skewed
the test results.    Indeed, the Appellate Term noted that Mercado


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"testified as to defendant's condition during the requisite
observation period prior to the test" (see 46 Misc 3d at 24).
          The only step in the testing process that the Appellate
Term found Mercado did not personally perform or observe, and the
sole stated basis for that court finding a Confrontation Clause
violation, was verification of the simulator solution temperature
as displayed on the machine.   Inasmuch as the written 13-step
checklist completed by Harriman was not admitted into evidence,
no testimonial statement by a nontestifying witness concerning
the temperature -- or any aspect of the testing procedure -- was
used against defendant.   Thus, any argument as to Mercado's
failure to observe the temperature reading would merely relate to
whether there was a proper foundation for his testimony, which
would not implicate a Confrontation Clause violation (see
Williams, ___ US at ___, 132 S Ct at 2238).   However, to the
extent that the Appellate Term based its decision on the failure
of an "essential" step in the testing procedure, the trial record
contradicts that court's conclusion that there was an absence of
evidence that the machine will shut itself down and fail to
perform the test if the temperature is outside the proper range
(see 46 Misc 3d at 25).   Mercado testified that he knew from
operating the machine so many times that it makes an "error
sound" if there is a problem, and will not give a result if an
error occurs.   Additionally, the video recording of the testing
process supports Mercado's testimony that no error sound was


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audible when the machine was verifying the temperature of the
simulator solution (as opposed to when defendant failed to blow
properly on his first two attempts, at which times a tone was
audible and Harriman had to reset the machine).   The video also
shows that the machine continued to operate and produced a
result.    The record, therefore, was sufficient to allow the jury
to find that the temperature of the simulator solution was within
the proper range.
                               IV.
           In sum, Mercado observed Harriman perform all of the
steps on the checklist and saw the breathalyzer machine print out
the results.   Based upon his personal observations, Mercado -- as
a trained and certified operator who was present for the entire
testing protocol -- was a suitable witness to testify about the
testing procedure and results in defendant's test.   Inasmuch as
Mercado testified as to his own observations, not as a surrogate
for Harriman, there was no Confrontation Clause violation.   Any
alleged irregularities concerning the testing procedure would
relate to the weight of Mercado's testimony, not its
admissibility (see e.g. People v Boscic, 15 NY3d 494, 500
[2010]).   Defendant's remaining argument lacks merit.
           Accordingly, the order of the Appellate Term should be
reversed and the case remitted to that court for consideration of
the facts and issues that were raised but not determined on the
appeal to that court.


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*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order reversed and case remitted to the Appellate Term, Second,
Eleventh and Thirteenth Judicial Districts, for consideration of
the facts and issues raised but not determined on the appeal to
that court. Opinion by Judge Stein. Chief Judge DiFiore and
Judges Rivera, Abdus-Salaam, Fahey and Garcia concur. Judge
Wilson took no part.

Decided February 16, 2017




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