AD4 order dated November 18, 2011, affirming judgment of conviction for DWI. Decision below: 89 A.D.3d 1504, 933 N.Y.S.2d 473. Ciparick, J., granted leave March 14, 2012.

ISSUES PRESENTED: (1) Whether breath test calibration and simulator solution certificates, offered to show that the breath test machine functioned properly, were collectively admissible as business records despite Crawford v. Washington. (2) Whether evidence obtained following the stop of a vehicle for having an unauthorized rear-window sticker was suppressible as the result of a pretextual stop. (3) The propriety of a brief being filed by an attorney in the Seneca County DA’s office on behalf of the Yates County DA. (4) Allegedly improper rebuttal.

Issues before the Court:  (1) Whether Crawford v. Washington (S.Ct. 2004) requires that the person who created the calibration and maintenance records for a breathalyzer personally testify before admission of those records?; and (2) Whether a pretext traffic stop for a “de minimis” violation of the traffic law (a transparent college sticker in the rear window) should be permitted under People v. Robinson (NY 2001)?

Held:All five judges agreed that Crawford did not require the actual inspector to testify before admission of the business record, but the court split on the pretext issue with Judge Graffeo writing for the majority dismissing the claim in a footnote, Judge Pigott writing a dissent on that point, and Judge Smith writing a concurrence “to reply to the dissent.”  Notably, Judge Smith who provided the fourth vote needed for a decision from the two-judge short bench was “uncomfortable with what happened in this case,” but would leave it up to the Legislature to remove the ban on small, transparent stickers on rear windows.

CAL observes:  The Crawford issue presented an opportunity for the Court to reconsider its decision in People v. Frecycinet (2008), allowing an autopsy report on “objective” and “observable facts” to be admissible, in light of the Supreme Court’s subsequent decision in Bullcoming v. New Mexico (2011), finding that a chemist’s determination of blood alcohol content (BAC) required the live testimony of the chemist.  The Court declined to revisit its prior decision.  Similarly, the Court stuck by its decision in Robinson, despite the apparent hesitancy of one or more members of the panel.  Stare decisis is a potent force slowing or stopping any directional shifts by the Court.