CPLR 4518(a), not 4539(b), was the proper basis for admitting a record of testing the simulator solution during a breathalyzer test, because the record was originally created electronically.

The Court of Appeals affirmed County Court’s reliance on CPLR 4518, not CPLR 4539(b), to admit into evidence the People’s exhibit of a record of testing the simulator solution used during the breath test that was 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 Court of Appeals noted that CPLR 4539 (b) does not apply to documents like the record of simulator solution testing that were originally created in electronic form.  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.   Subdivision (b), which was added to CPLR 4539 in 1996, 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 (a), in turn, allows reproductions made in the regular course of business to be admissible as the original.

Therefore, County Court correctly held that the applicable statute was CPLR 4518(a), which was amended in 2002 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) 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 all other circumstances of the making of the memorandum or record may be proved to affect its weight, and shall not affect its admissibility.

Lastly, 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.

People v. Kangas, 2016 NY Slip Op 06857 (Court of Appeals Oct. 20, 2016)

http://www.nycourts.gov/reporter/3dseries/2016/2016_06857.htm

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