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 breathtesting 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 crossexamination (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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