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Criminal Court, City of New York.

The PEOPLE of the State of New York v. Emmanuel CARRER–GONZALEZ, Defendant.


Decided: March 05, 2018

For the Defendant: Brad E. Mazarin, Esq., 277 Broadway, Suite 706, New York, NY 10007 For the People: Cyrus R. Vance, Jr., District Attorney, New York County (Samantha Oakes, Esq., of counsel) One Hogan Place, New York, NY 10013


The defendant is charged with VTL § 1192(2) (Driving While Intoxicated—Per Se) as well as VTL § 1192(3) (Driving While Intoxicated) and VTL § 1192(1) (Driving While Ability Impaired). On or about September 14, 2017, the defendant served and filed a Demand for Discovery. On October 12, 2017, the People served their Response. The defendant believes that the People's production was incomplete and now moves, pursuant to CPL § 240.20, to compel the production of:

[a]ll documents concerning the preparation and testing of the Simulator Solution Lot Number 17040 including the forensic method utilized in the production of the simulator solution i.e. standard operating procedures for the production of any and all simulator solutions produced and utilized in the testing of the Defendant's breath and the actual chromatograms (GC Data) of the headspace gas chromatography (not merely the certifications that the tests were performed)

For the reasons set forth herein, this motion is denied.


On August 25, 2017, the defendant was arrested for driving while intoxicated. At that time, the arresting officer, David Mencarelli, administered a breath test using an Intoxilyzer 5000EN (the “Intoxilyzer”) to determine defendant's blood alcohol content (“BAC”). Defendant registered a .14 of one per centum by weight of alcohol in his blood. As a reading of .08 is the floor in New York for driving while intoxicated per se, the People charged defendant with VTL § 1192(2) (Driving While Intoxicated—Per Se) as well as VTL § 1192(3) (Driving While Intoxicated) and VTL § 1192(1) (Driving While Ability Impaired).

While the Intoxilyzer is presumed to be reliable (See 10 NYCRR 59.4; People v. Robinson, 53 AD3d 63, 70 [2d Dept 2008] ), the results of the breath test administered using the Intoxilyzer are inadmissible at trial unless the People “demonstrate that the [specific] machine was in good working order, that any chemicals used in conducting the test were of the proper kind and mixed in the proper proportions, and that the test was administered properly” (People v. White, 45 Misc 3d 694, 698 [Crim Ct, New York County 2014] [internal citations omitted] ).

The People have already produced the Intoxilyzer's Calibration Report and Field Inspection Reports, as well as the certificate of analysis for the simulator solution (People's Response at p. 9; See also Defendant's Motion, Ex. A) which are, in general, sufficient to satisfy the People's disclosure requirements to establish at trial that the Intoxilyzer was in good working order (See People v. Robinson, 53 AD3d 63 [2d Dept 2008] ). Nevertheless, defendant argues that he is entitled to the production of additional documents concerning the preparation and testing of the simulator solution used to ensure the Intoxilyzer was properly calibrated (Simulator Solution lot number 17040) (Defendant's Motion at ¶ 16).

A “simulator solution” is used during the required “simulator test” which must run on an Intoxilyzer before or after every breath test. This “simulator test” ensures that the Intoxilyzer is properly calibrated (10 NYCRR § 59.5[d] ). During this “simulator test,” the Intoxilyzer measures a “reference standard” (also known as a “simulator solution”) that simulates a person with a known BAC (Id.; See also Handling the DWI Case in New York, § 29:11). For the Intoxilyzer to be certified as accurate it must measure the reference standard to within .01 percent per weight per volume (Id.).

Prior to the simulator test, the simulator solution is tested in a separate process known as gas headspace chromatography. Gas headspace chromatography establishes the simulator solution's concentration of ethyl alcohol. The technician conducting the gas headspace chromatography reviews the records produced by the gas headspace chromatography (the “chromatograms”) and writes a report stating, inter alia, the results of the analysis (People v. White, 45 Misc 3d at 698 [Crim Ct, New York County 2014] ).


Discovery in criminal cases in New York State is governed by statute (See People v. Colavito, 87 NY2d 423, 427 [1996] [“Items not enumerated in article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated”]; See also Matter of Johnson v. Sackett, 109 AD3d 427, 429 [1st Dept 2013] [internal citations omitted], lv denied 22 NY3d 857 [2013] [neither a defendant nor a court has the “authority to compel pretrial discovery in criminal cases that is unavailable pursuant to statute”] ).

CPL § 240.20 is the primary statutory authority governing disclosure in Vehicle and Traffic Law cases. CPL § 240.20(1)(c) provides, in relevant part, that the prosecutor shall disclose to the defendant [a]ny written report or document concerning a scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial” (CPL § 240.20[1][c] ).

In 1989 the statute was amended to add CPL § 240.20(1)(k) which clarifies that, in the prosecution of an offense proscribed by the Vehicle and Traffic Law, the written reports described in CPL § 240.20(1)(c) include: “the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests and the certification certificate, if any, held by the operator of the machine or instrument” (CPL § 240.20[1][k] ).

The defendant argues that the discovery sought in the instant motion falls within the ambit of CPL § 240.20(1)(k) because it concerns the “inspection or calibration” of the instrument used to conduct a “scientific test” upon the defendant's breath. The People respond that the documents previously provided to the defendant satisfy their obligation under CPL § 240.20 and the defendant has failed to “articulate how the absence of the gas chromatography analysis denies the defendant a meaningful opportunity to challenge the reliability of the Intoxilyzer machine (People's Opposition at pp. 5, 7). The People add that if defendant's motion were granted it “may lead to demands for further reports regarding the chromatogram machine itself, reports regarding the various parts and solutions involved in testing, and reports regarding the manufacturing of each chromatogram machine [which would become overwhelming and a strain on government resources” (Id.).

The Court is persuaded by the People's argument. The discovery defendant seeks constitutes “nothing more than tests of tests” which are not a “fundamental part of whether or not the [Intoxilyzer] was in good working order” (People v. White, 45 Misc 3d 694, 701 [Crim Ct, New York County 2014] citing State v. Chun, 194 NJ 54, 136 [2008] [only documents directly relating to operation of breath testing device were required to establish evidentiary foundation, while tests of tests were not required). Moreover, the defendant has not offered any factual basis to support his claim that this material would establish that the Intoxilyzer's BAC measurement was inaccurate. As such, defendant's “request to compel disclosure on that basis constitutes nothing more than a fishing expedition” (People v. Robinson, 53 AD3d 63, 72 [2d Dept 2008] [motion to compel disclosure of source code denied where defendant offered no factual basis that Intoxilyzer source contained software glitches making BAC measurements inaccurate] ). Accordingly, absent some factual showing by the defendant that this material is of any probative value, the certificate of reliability previously produced by the People discharges their discovery obligations as to the simulator solution (Id.; People v. White, 45 Misc 3d at 701; People v. Tejeda, 47 Misc 3d 1224(A) [Crim Ct, Bronx County 2015] ).

While the Court acknowledges that some trial courts of coordinate jurisdiction have found that the documents sought here are discoverable, the Court disagrees with their assessment that “the proper preparation of the simulator solution and the proper maintenance, repair, calibration and operation of the instrument used to conduct the chemical test of the defendant's breath” are inextricably linked (People v. Torre, 48 Misc 3d at 750) and finds that these documents are sufficiently attenuated from the simulator test run on the Intoxilyzer such that the documents already produced by the People are sufficient to establish whether or not the Intoxilyzer was in good working order.

Finally, the Second Department's decision in People v. Singas does not require a contrary conclusion. That case involved the propriety of the Supreme Court, Nassau County's denial of the District Attorney's Article 78 petition, which sought to prohibit the enforcement of a court order directing the District Attorney's Office to disclose chromatograms and related documents (Singas v. Engel, 155 AD3d 877, 878 [2d Dept 2017] ). Notably, the Second Department held only that the Supreme Court had jurisdiction and did not act in excess of its authority. That holding did not address the issue at hand here, whether or not the simulator solution and gas chromatograms were discoverable under CPL § 240.20(1)(k) (Id.). Accordingly, Singas is not applicable here.

It is, therefore,

ORDERED that the defendant's motion to compel all documents concerning the preparation and testing of the Simulator Solution Lot Number 17040 is DENIED.

This constitutes the Decision and Order of the Court.

Judy H. Kim, J.

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