People v. Kinne

OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and the case remitted to that court for a review of the facts (see, CPL 470.25 [2] [d]; 470.40 [2] [b]).

County Court held below that the foundation evidence attesting to the proper working order of the breathalyzer was inadmissible because the attached authentication certificate was improperly dated. This conclusion was error. Where a "certification or authentication” replaces the testimony of a live witness, pursuant to CPLR 4518 (c), it must state that the documents that it authenticates were produced in the normal course of business at or near the time that the act, transaction, occurrence or event recorded in those documents occurred. The authenticating certificate itself need not be dated or produced at or near the date of the act, transaction, occurrence or event.

Here, the challenged authenticating certificates properly stated that the recordation of the tests performed on the breathalyzer and simulator solution occurred at or near the time these tests were performed (People v Mertz, 68 NY2d 136, 147-148 ). The fact that the authenticating certificates were dated from 8 to 36 days after the tests were performed is irrelevant to a determination regarding the admissibility, under the business records exception to the hearsay rule (see, CPLR 4518 [a]), of the records of those tests. The recordation of the calibration tests on the breathalyzer occurred seven days after the tests were performed. The recordation of the simulator solution tests occurred on the same day that the tests were performed. This is sufficient to satisfy the dictates of CPLR 4518 (a) and People v Mertz (supra). Contrary to the *881 County Court ruling, the records of these tests were properly admitted.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to Chautauqua County Court for further proceedings in accordance with the memorandum herein.