Cook v. Murphy et al

Filing 13

DECISION AND ORDER: ORDERED that the Amended Petition (Dkt. No. 3) and Supplemental Petition (Dkt. No. 11) are DENIED and DISMISSED. ORDERED, that no Certificate of Appealability shall issue in this case because Petitioner has failed to make a &qu ot;substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). Any further request for a Certificate of Appealability must be addressed to the Court of Appeals pursuant to Federal Rule of Appellate Procedure 22(b). Signed by Senior Judge Lawrence E. Kahn on 4/22/16. (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
YANCY D. COOK,
Petitioner,
-against-

9:15-cv-0248 (LEK)

STEVEN R. BAYLE, et al.,
Respondents.

DECISION and ORDER
I.

INTRODUCTION
Petitioner Yancy D. Cook (“Petitioner”), through his attorney, Bruce R. Bryan, filed an

Amended Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an accompanying
Memorandum of Law on August 6, 2015. Dkt. Nos. 3 (“Amended Petition”); 3-1 (“Petitioner’s
Memorandum”).1 He challenges his judgment of conviction, following a jury trial in Saratoga
County Court, of aggravated driving while intoxicated (N.Y. VEH. & TRAF. LAW § 1192(2-a)(b))
and two counts of driving while intoxicated (N.Y. VEH. & TRAF. LAW §§ 1192(2), (3)). Petitioner’s
sole ground for habeas relief is that his Sixth Amendment right to confront witnesses was violated
when the trial court allowed the introduction of maintenance records for a breathalyzer machine
used to measure Petitioner’s blood alcohol content (“BAC”) without requiring the People to produce
the individual who signed the records as a witness for examination. Am. Pet. at 7.
Respondent opposes the Amended Petition. Dkt. Nos. 7 (“Respondent’s Memorandum”); 8

1

The cited page numbers for the Amended Petition (Dkt. No. 3) and Petitioner’s
Memorandum (Dkt. No. 3-1) refer to those generated by the Court’s electronic filing system
(“ECF”).

(“Answer”); 9 (“State Court Records”).2
For the reasons that follow, the Petition is denied and dismissed.
II.

BACKGROUND
On the evening of May 3, 2011, Petitioner was operating an all-terrain vehicle (“ATV”)

with his seven year old son as a passenger. SCR at 152. New York State Trooper, Kevin Manion,
was patrolling in the Town of Malta that evening and observed the ATV execute a right-hand turn
without signaling. Id. at 148-49. At that point, Trooper Manion followed the ATV and initiated a
traffic stop in the driveway of a private residence. Id. at 151. When Trooper Manion approached
Petitioner, he immediately smelled the odor of alcohol, and noticed that Petitioner’s speech was “a
little slurred and his face was flushed.” Id. at 154-55. He also noted that Petitioner’s eyes looked
“glassy.” Id.
Trooper Manion asked Petitioner whether he had consumed any alcohol and Petitioner
replied that he had drunk “two sex on the beaches.” Id. Based on Petitioner’s appearance and
statements, Trooper Manion performed four field sobriety tests. Id. at 160-78. Petitioner failed all
four tests. Id. The trooper also administered a portable breath screening device, which indicated a
positive reading for alcohol. Id. at 186-87. Petitioner was then placed under arrest for driving while
intoxicated and transported to the state police barracks. Id. at 191-92.
Petitioner agreed to submit to a breathalyzer test at the police station. Id. at 194-96, 210.
Trooper Manion administered the breathalyzer test using a Draeger Alcotest Model 9510, which
resulted in a reportable BAC of .12 percent. Id. at 200, 244-47, 477.
2

The cited page numbers for the Answer and Respondent’s Memorandum refer to those
generated by ECF. The “SCR” page numbers for the State Court Records appear at the top center of
each page.
2

A Saratoga County grand jury subsequently charged Petitioner with Aggravated Driving
While Intoxicated (N.Y. VEH. & TRAF. LAW § 1192(2-a)(b)) and two counts of Driving While
Intoxicated (N.Y. VEH. & TRAF. LAW §§ 1192(2), (3)). Id. at 6-8. A two-day jury trial was held on
May 21 and 22, 2012. On May 23, 2012, the jury found Petitioner guilty of all charges. Id. at 46667. On July 19, 2012, Petitioner was sentenced to four months incarceration followed by three years
conditional discharge during which Petitioner would be required to use an ignition interlock device.
Id. at 484-85.
On direct appeal, Petitioner argued that the trial court violated his Sixth Amendment right to
confrontation by allowing the People to admit the maintenance records of the breathalyzer machine
without producing the state employee who prepared those records for examination. Id. at 495-99.
The Appellate Division affirmed the conviction, finding that the documents in question were not
testimonial in nature and therefore were not subject to the right of confrontation. People v. Cook,
975 N.Y.S.2d 505 (App. Div. 2013). The New York Court of Appeals denied Petitioner’s
application for leave to appeal. People v. Cook, 7 N.E.3d 1127 (N.Y. 2014).
III.

DISCUSSION
A. Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal

court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court
only if, based upon the record before the state court, the state court’s decision was: (1) contrary to,
or involved an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding. 28 U.S.C. §§ 2254(d)(1), (2); Cullen
3

v. Pinholster, 563 U.S. 170, 181 (2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). This standard is “highly deferential” and “demands that
state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562 U.S. 594, 598
(2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).
The Supreme Court has repeatedly explained that “a federal habeas court may overturn a
state court’s application of federal law only if it is so erroneous that ‘there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s
precedents.’” Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam) (quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011)); see also Metrish v. Lancaster, 133 S. Ct. 1781, 1787 (2013)
(explaining that success in a habeas case premised on § 2254(d)(1) requires the petitioner to “show
that the challenged state-court ruling rested on ‘an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’”) (quoting Richter, 562 U.S. at
103)).
The AEDPA foreclosed “using federal habeas corpus review as a vehicle to second-guess the
reasonable decisions of state courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012) (per
curiam) (quoting Renico, 559 U.S. at 779). A state court’s findings are not unreasonable under
§ 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would
have reached a different conclusion. Wood v. Allen, 558 U.S. 290, 301 (2010). “The question
under AEDPA is not whether a federal court believes the state court’s determination was incorrect
but whether that determination was unreasonable—a substantially higher threshold.” Schriro, 550
U.S. at 473.
Federal habeas courts must presume that a state court’s factual findings are correct unless a
4

petitioner rebuts that presumption with “clear and convincing evidence.” Schriro, 550 U.S. at
473-74 (quoting § 2254(e)(1)). Finally, “[w]hen a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must presume that the federal claim was
adjudicated on the merits . . . .” Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013).
B. Right to Confrontation
The People introduced various exhibits during the trial, including the calibration and
maintenance records for the Alcotest Model 9510 that Trooper Manion used to conduct the
breathalyzer test on Petitioner the night he was arrested. SCR at 212-26, 475-76, 478-79.3 The
People sought to introduce the records during Trooper Manion’s testimony, even though he did not
perform the inspection or calibration of the breathalyzer machine. Id. at 212-26. Petitioner objected
to the admission of these documents as violating Petitioner’s Sixth Amendment right to
confrontation because he did not have the opportunity to cross-examine the witnesses who inspected
the breathalyzer machine at trial. Id. at 214-16. He identified the Supreme Court cases of
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct.
2705 (2011), as support for his interpretation of the Confrontation Clause. Id.
The People argued that the maintenance records were admissible, and did not violate
Petitioner’s right to cross-examine witnesses because “[t]hese are routine maintenance logs that are
non-testimonial in nature,” and were not accusatory in any manner. Id. at 217-18. The trial court
allowed the People to admit the maintenance records stating that, in contrast to the Melendez-Diaz
and Bullcoming cases, the documents offered by the People “are not accusatory and in the sense that
3

The State Court Records include an entire copy of Exhibit 5, which contains calibration
and maintenance records dated February 3, 2010, and May 13, 2010. SCR at 473-75. At trial,
however, only the May 13, 2010 records were moved and admitted into evidence. SCR at 225-26.
5

they do not establish an element of the crime and they shed no light on the Defendant’s guilt or
innocence.” Id. at 224.
The Appellate Division affirmed the trial court’s decision, finding that the calibration and
maintenance records were admissible. Cook, 975 N.Y.S.2d at 506. The Appellate Division relied
heavily on a recent Court of Appeals case, People v. Pealer, which found that “documents pertaining
to the routine inspection, maintenance and calibration of breathalyzer machines are nontestimonial
under [Crawford v. Washington, 541 U.S. 36, 53-54 (2004)] and its progeny.” Id. at 506 (alteration
in original) (quoting People v. Pealer, 20 N.Y.3d 447, 456 (2013)). Although Petitioner argued that
the Supreme Court’s cases of Melendez-Diaz and Bullcoming required a different result, the Court
of Appeals’ decision in Pealer specifically addressed the holdings of those cases and rejected
Petitioner’s argument. Id. at 506 n.1. For the following reasons, the Court finds that the Appellate
Division’s decision was neither contrary to, nor an unreasonable application of, current Supreme
Court precedent.
The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.
amend. VI. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the
Confrontation Clause prohibits admission of “testimonial” statements of witnesses who do not
appear at trial unless (1) the witness is unavailable to testify, and (2) the defendant had a prior
opportunity to cross-examine the witness. Crawford, 541 U.S. at 54.
The Supreme Court revisited the Crawford decision in the case of Melendez-Diaz v.
Massachusetts, which involved the introduction of forensic analysis reports which found that a
substance seized from a defendant contained cocaine. 557 U.S. 305 (2009). The Supreme Court
6

held that such reports were “testimonial statements” and that the analysts who prepared the reports
were witnesses for purposes of the Sixth Amendment. Id. at 311. The Supreme Court reasoned that
the forensic reports “are quite plainly affidavits . . . ‘made for the purpose of establishing or proving
some fact’” at trial. Id. at 310 (quoting Crawford, 541 U.S. at 51). Even though business records,
such as the forensic reports, are generally admissible under an exception to the hearsay rules, the
Supreme Court held that such records may nevertheless violate the Confrontation Clause if the
documents were specifically prepared for use at trial. Id. at 324 (holding analyst’s statements,
“prepared specifically for use at petitioner’s trial,” testimonial and subject to confrontation).
However, as relevant here, the Supreme Court also noted that “it is not the case, that anyone whose
testimony may be relevant in establishing the . . . accuracy of the testing device, must appear in
person as part of the prosecution’s case.” Id. at 311 n.1. Instead, “documents prepared in the
regular course of equipment maintenance may well qualify as nontestimonial records.” Id.
In 2011, the Supreme Court again revisited the scope of the Sixth Amendment’s right to
confrontation in the case of Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). The Supreme
Court held that a defendant’s right to confrontation was violated when he was denied the
opportunity to question the analyst who certified a blood-alcohol report relating to his arrest for
driving under the influence. Bullcoming, 131 S. Ct. at 2717. During trial, the People introduced the
blood-alcohol certificate as a business record through the testimony of “an analyst who did not sign
the certification or personally perform or observe the performance of the test.” Id. at 2713. The
Supreme Court held the certificate was testimonial because—like Melendez-Diaz—the certificate
was specifically created for the defendant’s trial. Id. at 2717. As such, “surrogate testimony” from
someone other than the author who signed the certificate failed to satisfy the Confrontation Clause.
7

Id. at 2709.
Unlike Melendez-Diaz and Bullcoming, the Appellate Division in the instant case found that
the maintenance records introduced during Petitioner’s trial were nontestimonial, and therefore fell
outside the scope of the Confrontation Clause of the Sixth Amendment. Cook, 975 N.Y.S.2d at
506. In rendering its decision, the Appellate Division relied exclusively on Pealer, which addressed
the very issue presented in this case: “whether records pertaining to the routine inspection,
maintenance and calibration of breathalyzer machines [could] be offered as evidence in a criminal
trial without producing the persons who created the records.” Pealer, 20 N.Y.3d at 451. The Court
of Appeals held that the documents were nontestimonial, and therefore were “not subject to the
Confrontation Clause requirements set forth in Crawford.” Id.
Notably, the Court of Appeals identified the following differences between the forensic
analysis reports in Melendez-Diaz and the maintenance records sought to be introduced in Pealer:
It may reasonably be inferred that the primary motivation for examining
the breathalyzer was to advise the [police] that its machine was
adequately calibrated and operating properly. The testing of the machine
was performed by employees of the Division of Criminal Justice
Services, an executive agency that is independent of law enforcement
agencies, whose task was to ensure the reliability of such machines—not
to secure evidence for use in any particular criminal proceeding. The
fact that the scientific test results and the observations of the technicians
might be relevant to future prosecutions of unknown defendants was, at
most, an ancillary consideration when they inspected and calibrated the
machine.
Pealer, 20 N.Y.3d at 455 (citations omitted). Furthermore, “unlike the certification of the accused’s
actual blood content in Bullcoming,” the Court of Appeals noted that “the breathalyzer testing
certificates do not directly inculpate defendant or prove an essential element of the charges against
him.” Id. In sum, the Court of Appeals endorsed the “widely-held view . . . that documents
8

pertaining to the routine inspection, maintenance and calibration of breathalyzer machines are
nontestimonial under Crawford and its progeny.” Id. at 456 (collecting cases).
The Appellate Division’s decision to rely on Pealer, and to conclude that the maintenance
and calibration records in this case were nontestimonial, was not contrary to nor an unreasonable
application of clearly established Supreme Court precedent. To be sure, the Supreme Court has
never explicitly addressed whether inspection, maintenance or calibration records fall under the
Sixth Amendment’s confrontation requirements. Instead, the Supreme Court only stated in dicta
that “documents prepared in the regular course of equipment maintenance may well qualify as
nontestimonial records.” Melendez-Diaz, 557 U.S. at 311 n.1.
A federal habeas court may not grant a writ of habeas corpus unless “a state court’s
application of federal law . . . is so erroneous that ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.’” Nevada v.
Jackson, 133 S. Ct. at 1992 (quoting Richter, 562 U.S. at 102). Since the Supreme Court has not
directly addressed whether inspection and maintenance records are testimonial, and the fact there is
“virtually uniform national consensus” by other courts holding similar documents are admissible
absent confrontation (Pealer, 20 N.Y.3d at 455-56 (collecting cases)), Petitioner cannot “show that
the challenged state-court ruling rested on ‘an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’” Metrish, 133 S. Ct. at 1787 (quoting
Richter, 562 U.S. at 103). Accordingly, Petitioner is not entitled to habeas relief, and his Amended
Petition is denied and dismissed.
IV.

CONCLUSION
Accordingly, it is hereby:
9

ORDERED that the Amended Petition (Dkt. No. 3) and Supplemental Petition (Dkt. No.
11) are DENIED and DISMISSED; and it is further
ORDERED, that no Certificate of Appealability shall issue in this case because Petitioner
has failed to make a “substantial showing of the denial of a constitutional right” pursuant to 28
U.S.C. § 2253(c)(2).4 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals pursuant to Federal Rule of Appellate Procedure 22(b); and it is further
ORDERED that the Clerk of the Court serve copies of this Decision and Order upon the
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

April 22, 2016
Albany, New York

4

See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[Section] 2253 permits the issuance
of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional
right . . . .’”).
10