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X
THE LAV/ OFFICES OF ADAM D, PERLMUTTER, P.C.
Petitioner,
NEW YORK CITY POLICE DEPARTMENT and RAYMOND KELLY, in his ofhcial capacity as Commissioner of the New York City Police
Department
Respondents
X
Respondents, by their attorney, Douglass B. Maynard, Deputy Commissioner, Legal
Matters, New York City Police Department ("NYPD"), acting by designation of Michael A. Cardozo, Corporation Counsel of the City of New York, as and for their Verified Answer to the
l, 2. 3. 4. 5. 6,
Deny the allegations set forth in paragraph "1" of the petition, except admit that
Petitioner purports to proceed as set forth therein, Deny the allegations set forth in paragraph "2" of the petition, except admit that
forth in paragraph "5" of the petition. Deny knowledge or information sufficient to form a belief as to the allegations set
7. 8. 9. 10,
"l0"
of the petition,
which sets forth argument and conclusions of law to which no response is required, but to the
extent this Court deems a response necessary, deny any allegations set forth therein, except admit that breathalyzers are reliable methods of determining a subject's blood alcohol.
II
Neither admit nor deny the allegations set forth in paragraph " l I " of the petition,
which sets forth argument and conclusions of law to which no response is required, but to the
extent this Court deems a response necessary, deny any allegations set forth therein, and
$$
12. 13.
forth in paragraph
"l2"
of the petition.
allegations set forth in paragraph "13" of the petition concerning the plea policies of the District
Attorneys' offices. Neither admit nor deny Petitioner's allegations in the first and second
sentences which set forth argument and conclusions of law to which no response is required but
to the extent necessary, deny the allegations set forth therein and respectfully refer the court to Vehicle & Traffic Law $ I 194 for a statement of the penalties.
Deny the allegations set forth in paragraph "14" of the petition except admit that
the NYPD utilizes the Intoxilyzer 50008N to conduct chemical breath-alcohol testing. Deny the allegations set forth in paragraph Deny the allegations set forth in paragraph
"l5" "l6"
the NYPD keeps its Intoxilyzer 5000 machines at the identified precincts and at the NYPD
Police Laboratory.
17. 18.
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content,
19.
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.
20.
Neither admit nor deny the allegations set forth in paragraph "20" of the petition,
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.
2l
Deny the allegations set forth in paragraph "21" of the petition and respectfully
refer the Court to Petitioner's letter, dated August 30,2012, annexed hereto as Exhibit "A," for a
22.
Neither admit nor deny the allegations set forth in paragraph "22" of the petition
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.
23.
Neither admit nor deny the allegations set forth in paragraph "23" of the petition,
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.
24.
Neither admit nor deny the allegations set forth in paragraph "24" of the petition,
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content,
25. 26.
27
Admit the allegations set forth in paragraph "25" of the petition. Admit the allegations set forth in paragraph "26" of the petition.
Neither admit nor deny the allegations set forth in paragraph "27" of the petition
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content
Deny the allegations set forth in paragraph"28" of the petition and respectfully
refer the court to the materials for a full statement of their content.
which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and
respectfully refer the courl to the materials for a full statement of their content.
3
1
Neither admit nor deny the allegations set forth in paragraph "3 l " of the petition,
which recites information contained in materials provided to which no response is required, but
to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.
32.
Admit the allegations set forth in the first sentence of paragraph"32" of the
petition. Deny the allegations set forth in the second sentence of paragraph"32" except admit
that the machine analyzes the vapor from the simulator solution and that the readings of the
Deny the allegations set forth in paragraph "33" of the petition, except admit
that the diagnostic check generates a printout. Deny the allegations set forth in paragraph"34" of the petition, except admit
that the Radio Frequency Interference ("RFI") check generates a printout. Deny the allegations set forth in paragraph "35 of the petition, except admit that
Neither admit nor deny the allegations set forth in paragraph "36" of the petition,
which recites information contained in materials provided to which no response is required, but
to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content,
37. 38.
Deny the allegations set forth in paragraph"37" of the petition, except admit
Neither admit nor deny the allegations set forth in paragraph "38" of the petition,
which recites information contained in materials provided to which no response is required, but
to the extent this Court deems a response necessary, deny the allegations set forth therein and
respectfully refer the court to the testimony cited therein for a full statement of their content,
39.
Deny knowledge and information sufficient to form a belief as to the truth of the
allegations set forth in paragraph"39" of the Petition regarding what Petitioner has learned, except admit that the NYPD maintains a maintenance log for each Intoxilyzer 5000EN used by
the NYPD,
40.
Neither admit nor deny the allegations set forth in paragraph "40" of the petition,
except admit that access to these records sought during a criminal trial is determined by the judge overseeing the matter and is routinely denied,
41.
set
42.
set
43.
set
to Petitioner's alareness.
44.
Deny the allegations set forth in paragraph "44" of the petition, except admit that
("FOIL") dated
August 30,2012, and respectfully refer the Court to Petitioner's letter, dated August 30,2012,
annexed hereto as Exhibit
45. 46.
Deny the allegations set forth in paragraph "45" of the petition and respectfully
refer the Court to Petitioner's letter, dated August 30,2012, for a full statement of its content. Deny knowledge and information sufficient to form a belief as to the allegations
47.
Deny the allegations set forth in paragraph "47" of the petition and respectfully
refer the Court to the letter by the NYPD Records Access Officer, Lieutenant Richard
Mantellino, dated September 20,2012, annexed hereto as Exhibit "B," for a full statement of its
content.
48,
Deny the allegations set forth in paragraph "48" of the petition and respectfully
refer the Court to the Petitioner's appeal, dated September 25, 2012, annexed hereto as Exhibit
"C," for
49.
set forth in paragraph"49" of the petition, except affirmatively state that the Records Access
50,
Deny the allegations set forth in paragraph "50" of the petition and respectfully
refer the Coutt to the letter by the NYPD's Records Access Appeals Offrcer, Jonathan David,
dated December 3,2072, annexed hereto as Exhibit
5l
Deny the allegations set forth in paragraph "5 l " of the petition, except admit that
it
sets forth arguments and conclusions of law, but to the extent the Court deems a response
57.
as
Neither admit nor deny the allegations set forth in paragraph "5T" of the petition
it
sets forth arguments and conclusions of law, but to the extent the Court deems a response
58.
as
Neither admit nor deny the allegations set forth in paragraph "5S" of the petition
it
a response
59.
as
Neither admit nor deny the allegations set forth in paragraph "59" of the petition
it
a response
60.
as
Neither admit nor deny the allegations set forth in paragraph "60" of the petition
it
a response
61.
Neither admit nor deny the allegations set forth in the "'WHEREFORE" paragraph
INTRODUCTORY STATEMENT
62.
copies of records that pertain to the calibration and maintenance of all Intoxilyzer 5000EN machines owned or maintained by the NYPD from January 2008 until August2012. However, the records sought by Petitioner are exempt from FOIL disclosure pursuant to N,Y, Public
Officers Law $87(2XeXi), in that the disclosure of law enforcement records would interfere with
pending judicial proceedings, Specihcally, the disclosure of the requested documents would interfere with pending DWI prosecutions in all five boroughs in which a defendant is charged
with Driving 'While Intoxicated ('DV/I") or Driving While Under the Influence of Alcohol
("DUI"), by expanding the scope of discovery permitted under Criminal Procedure Law
$240.20(1)(k) and usurping the authority of criminal court judges to determine the scope of discovery in cases pending and to be brought before them,
63,
charged with
According to CPL $240.20(1)(k), the People must provide the criminal defendant
DWI/DUI the most recent record of inspection or calibration or repair and the
certification, In the case at hand, the Petitioner, a criminal defense firm that specializes in
DWI/DUI
cases, is seeking to use the Freedom of Information Law to circumvent the established
limitation of the New York State criminal discovery statute and take from criminal court judges
the ability to exercise their discretion regarding pre-trial matters in their cases,
64.
Respondent provides the Court with a particularized showing that demonstrates that the
information withheld from disclosure is indeed exempt from disclosure pursuant to the Freedom of Information Law.
PETITIONER'W 65.
By letter dated August 30,2012, Petitioner made
a request pursuant
to FOIL seeking copies of several categories of records pertaining to the maintenance and calibration of all Intoxilyzer 5000EN machines owned or maintained by the NYPD for the last
five years (January 2008 until August 2012), including but not limited to:
a) b)
a a
diagnostic check,
frequency
interference check, invalid sample check, interferent check and an invalid test check; and
c)
"4."
hereto as Exhibit
66.
Access Officer ("RAO") denied the records on the basis of N,Y. Public Officers Law
$87(2XeXi) as such records, if disclosed, would interfere with law enforcement investigations or
judicial proceedings, The Records Access Offlrcer also informed Petitioner that he may appeal
this decision within thirty (30) days of this letter. See letter dated September 20, 2012,by
Lieutenant Richard Mantellino, a copy of which is annexed hereto as Exhibit "B."
67.
determination of the Records Access Ofhcer, Seg letter dated September 25, 2012, by Daniel A.
McGuinness, Esq., a copy of which is annexed hereto as Exhibit "C,"
68,
Officer("RAAO") denied Petitioner's appeal pursuant to Public Officers Law gg87(2)(e)(i) and
(ii) in that disclosure of the requested records would interfere with Court-supervised discovery in
ongoing litigation, would interfere with ongoing law enforcement investigations and further would deprive other parties of their right to a fair trial or impartial adjudication in ongoing
litigation. The appeal was also denied under Public Officers Law 987(2XeXiv) because
disclosure would reveal non-routine investigative techniques or procedures. Finally, the appeal was also denied under Public Offrcers Law $87(2Xg) to the extent that the requested records contain preliminary data and information. See, letter dated December 3,2012, by Jonathan
69,
in the Supreme Court, New York County, seeking to compel a disclosure under FOIL of records Petitioner intends to use in defending criminal DV/I/DUI cases.
70.
accepted and reliable method of determining a subject's blood alcohol level by using chemical
breath-alcohol testing,
71.
7th
precinct, 28th
precinct, 45thprecinct, 78th precinct, l l2th precinct and the l20th precinct, There are two
Intoxilyzer machines kept at each precinct and the remaining Intoxilyzers are kept at the NYPD
Police Laboratory,
72.
technician. These checks include the field inspection test checks, which are done every five to
fourteen days, and the full calibration test checks, which are done every six months.
73. 74.
tube heater check, a printer check and three calibration tests are conducted,
solution of ethanol, which is used as a control, The solution is predetermined to register at ,10
reading. Additionally, an air blank test is run which draws in room air and purges the instrument
of any interferent. The reading for the air blank test must be ,000. When the calibration checks
are complete, a printout
will
75.
internal computing components are functioning properly. This check also includes a check of
the cell temperature of the Intoxilyzer. The results of the internal diagnostic check generate a
printout.
Exhibit "F,"
76.
The NYPD technician conducting the tests also fills out a handwritten form,
entitled "Police Laboratory Field Unit Inspection Report," indicating the results of the three calibration tests, the internal diagnostic check, the breath tube heater check and the printer check.
Further, if there are any comments with regards to the testing of the machine, the technician will
write these comments in the "Remarks" section. See sample of a Police Laboratory Field Unit
Inspection Report, attached herein as Exhibit "G."
77.
During the full calibration test, an NYPD technical supervisor runs a diagnostic check, f,rve calibration checks and simulated tests checking for any potential errors with the machine's
readings.
78.
of
a
The results of the diagnostic check are generated on a printout. See sample
79.
checks.
"I."
80,
The simulated tests include the breath tube test; insufficient sample test;
radio frequency interferent test; reset test; digital display test; general condition check; invalid
sample test; interferent test; invalid test and a print test. If there are any errors with any of the
tests, the Intoxilyzer machine
81. 82.
The breath tube test ensures that the tube is properly heated, The results
tube for analysis. The results of this test generate a printout. See sample of an insufficient
sample test printout, attached herein as Exhibit
"J."
83,
The radio frequency interferent ("RFI") test ensures that the RFI detector
is working properly. The results of this test generate a printout. See sample of an RFI test
84.
The reset button test ensures that this button is working properly, This test
is a visual inspection and there is no printout generated, Rather, the result is handwritten on the
"Police Laboratory Calibration Report." See sample of Police Laboratory Calibration Report,
attached herein as Exhibit
"L."
85.
The digital display test ensures that the display where the reading of the
alcohol test is shown is working properly. This test is a visual inspection and there is no printout
generated. Rather, the result is handwritten on the "Police Laboratory Calibration
Report."
See
Exhibit "L."
86.
machine, This test is a visual inspection and there is no printout generated. Rather, the result is
handwritten on the "Police l,aboratory Calibration Report," See Exhibit"L."
87.
The invalid sample test ensures that the Intoxilyzer machine is able to
distinguish between alcohol present in the subject's mouth and alcohol present in deep lung air.
The results of this test generate a printout, See, sample of the invalid sample test printout,
attached herein as Exhibit
"M."
88,
between alcohol and another substance, This check involves two tests - one with acetone and
one with methanol,
from the alcohol content and will generate an "Interferent subtracted" printout, If the machine is
able to detect the methanol separate from the alcohol, it
will
printout.
See, sample
89,
machine
will abort the test. The invalid test results generate a printout.
"O."
See, sample of
Invalid
90,
Exemption, which
proscribes the disclosure of law enforcement records, which, if disclosed, would interfere with a pending judicial proceeding. This section applies to the disclosure of records during a criminal prosecution and any subsequent proceeding within the same prosecution.
91.
from the interference that would result from the premature disclosure of law enforcement
records, The exemption does not specify a particular type ofjudicial proceeding to any particular
phase
92,
calibration and maintenance records of all Intoxilyzer 50008N machines owned or maintained by
the NYPD since January 2008, was appropriately denied under Public Officers Law $87(2XeXi) because disclosure would interfere with ongoing
boroughs.
93.
records relating to the maintenance and calibration of the Intoxilyzer machines are discoverable
94.
95.
calibration records, the most recent field test preceding the defendant's report and the results of
the defendant's test.
96.
the Court to calibration or maintenance records for prior years. As such, disclosure of these records pursuant to FOIL would interfere with the rulings of the criminal court and would
ultimately usurp the criminal judge's authority in the criminal matter to decide issues of
disclosure, Releasing those records to the public under FOIL would nullify any decision by the
Criminal Court judge allowing the District Attorney's Office to withhold from disclosure those
same records,
Crime Prosecution in Bronx County, New York, has provided an affirmation providing the
number of open D'WI prosecutions in all five boroughs from 2008 to 2012. ADA McCormack is
an expert in the field of criminal prosecution of
DWI/DUI offenses.
See
Affrrmation by Assistant
as
Exhibit "P."
98.
The disclosure of the records at issue herein include the calibration and field test
records of the Intoxilyzer machines. These records have been and continue to be the subject of
conflict during the discovery phases of these cases. ADA McCormack is fully aware of the types
in DWI/DUI
in accordance with
$240,20(1)(k). It is ADA McCormack's expert opinion that the disclosure of these records under
FOIL would interfere with discovery in numerous pending and future criminal DWI/DUI
prosecutions.
99.
Pursuant to that query, in Bronx County, over 1,200 DWI prosecutions are still pending, from 2008 to 2013. The breakdown of the number of cases by year is as follows:
a. b, c. d, e.
for 2010, there are I l0 open DWI cases; for 201 I , there are 241 open DV/l cases;
for 2072, there are 552 open DWI cases and
f.
See
Exhibit"P" atl14.
100.
Assistant District Attorney Jill Hoexler from New York County District
database,
Attorney's Offlrce conducted a query of the New York County District Attorney's
Pursuant to that query, in New York County, over 1,600 DWI prosecutions are still pending,
from 2008 to 2013. The breakdown of the number of cases by year is as follows:
a. b. c, d, e. f.
See
for 2009, there are 60 open D'WI cases; for 2010, there are 80 open DWI cases; for 201l, there are 776 open D'WI cases; for 2012,fherc are 650 open DWI cases and for 2013, there are 342 open D'WI
cases.
Exhibit "Q" at fl 4.
101.
Pursuant to that query, in Richmond County, over 300 DV/I prosecution are still pending, from 2009 to 2013. The breakdown of the number of cases by yearl are as follows:
a. b. c. d. f.
See
Exhibit "R" at fl 4.
Richmond County does not have any open DV/l cases for 2008
102.
Pursuant to that query, over one thousand DWI prosecutions are still pending, from 2008 until
a. b, c. d, e. f.
See
for 2009, there is one open DWI case; for 2010, there are 7 open DWI cases;
cases.
Exhibit "S" at fl 4.
103.
Attorney's Office conducted a query of the Kings County District Attorney's database, Pursuant
to that query, in Kings County, over one thousand DWI prosecutions are still pending, from 2008
until 2013. The breakdown of the number of cases by year are as follows:
a. b. c. d. e. f.
See
for 2009, there are 12 open DWI cases; for 2010, there are 50 open DWI cases; for 201 l, there arc 96 open DWI cases;
for 2012, there are 445 open DV/l cases and
cases.
Exhibit"T" atl4,
104.
refused to participate, each of these cases involve the use of an Intoxilyzer 5000EN machine.
Thus, the total number of pending prosecutions in New York City involving Intoxilyzer 50008N machines exceeds three thousand, See flfls 4 from Exhibits
6(
Q'r
r(IJ."
105.
offenses and is familiar with the forensic discovery issues related to breath testing, In fact, on the Petitioner's website, it states that "The Law Offices of Adam D. Perlmutter concentrates on
New York DWI defense. Adam Perlmutter and his team have defended hundreds of New York
See http://adplegal,com/practice-areas/dwi-defense/
Petitioner intends to use such records for criminal defense of DWI/DUI cases and is trying to circumvent the statutory discovery limitations set by CPL$240.20(1Xk) by requesting these
documents pursuant to FOIL.
106.
pursuant to N.Y. Public Officers Law $87(2XeXi), in that the documents are compiled for law enforcement purposes and would interfere with law enforcement investigations and ongoing prosecutions. Accordingly, disclosure of the law enforcement records sought under FOIL would interfere with numerous pending and future prosecutions and are exempt from disclosure.
107.
pursuant to N.Y. Public Offrcers Law $87(2)(a), in that disclosure of the requested documents under FOIL would expand the scope of discovery permitted under Criminal Procedure Law $240.20(1Xk).
108,
in every respect and mandated by law. AS AND FOR A FOURTH DEFENSE. RESPONDENTS ALLEGE:
109.
pursuant to N,Y. Public Officers Law $87(2Xg) in that the records are intra-agency materials.
10.
belief, formed after a reasonable inquiry, the presentation of the within litigation papers and of
the contentions therein, is not frivolous as defined in subsection (c) of 130-1.1,
2,2073
MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street, Room 2-l2l New York, New York 07 (212) 78 By:
S
tz ation Counsel
VERrrrCATION
STATE OF NEW YORK
s.s.
Lori Hernandez, being duly swom, deposes and says that she is
an
DEPUTY MANAGING ATTORNEY in the Legal Brreau of the New York City Police
Departnent; that the reason why this VERIFICATION is not made by the respondent is
that your deponent has been duly designated by the Police Commissioner of the New
York City Police De,partment, prrsuant to Section 1101, subdivision (a) of the New York
City Charter, to act on said Commissioner's behalf for the purpose of veriffing
the
pleadings herein; that she has read the foregoing Amended Verified Answer and knows
the contsrits thereof to be true except as to matters therein alleged upon information and
belief and as to those matters, she believes them to be true, that the source of this
information and the basis for her belief are the books and records of the New York City
Police Departnent and other deparfrnents of the oity government ard/or om statements
made to herby certain offic rs or agents of The City of New York.
'/-"
Sworn to before me on
Lori Hernadez
of MA\
day
,201,3
Notary
AMENDED VERIFIED PETITTON
Perlmuttcr v. NYCPD, ot al Index No,: 100220113 Suprnc Court of the State ofNew York CountSr of New York
DAVID G. GOLDFARB, Notypublic Stetc of Nw lo. bzCOo-uss yok Corntc _ Qulifed n New
yc\ oonninioErpiree1*Wrl