certificate analysis in New York

1992Other than the certificate of analysis certifying the adequacy of the chemical composition of lot No. 0916 ampules, whose probative value is subject to question in light of the facts brought to light in People v Serrano ( 142 Misc 2d 1087 , supra) and other cases (see, People v Sperber, 177 AD2d 725 ; People v Uruburu, 169 AD2d 20 , lv denied 78 NY2d 1082 ), no other testimony was submitted to establish that the chemical in the lot No. 0916 ampule used was of the proper kind and mixed in the proper proportions.

1990He relies, in the main, upon People v Serrano ( 142 Misc 2d 1087 ), where the court held that the certificate of analysis for ampoule lot No. 0916, a material used in his breathalyzer test, was "not compétent to prove the integrity or chemical composition of the ampoules used therein” (supra, at 1096) because the laboratory procedures utilized by Systems Innovation, Inc., the manufacturer .of those chemicals, did not meet scientifically acceptable quality control standards.

1992Other than the certificate of analysis certifying the adequacy of the chemical composition of lot No. 0916 ampules, whose probative value is subject to question in light of the facts brought to light in People v Serrano ( 142 Misc 2d 1087 , supra) and other cases (see, People v Sperber, 177 AD2d 725 ; People v Uruburu, 169 AD2d 20 , lv denied 78 NY2d 1082 ), no other testimony was submitted to establish that the chemical in the lot No. 0916 ampule used was of the proper kind and mixed in the proper proportions.

1991The legal principle established in Uruburu (supra) was that whenever a defendant offers evidence of the irresponsible numbering system of SII, in the absence of countervailing proof by the prosecution, the usual certificate of analysis would be an insufficient basis for the admission of the breathalyzer test result.

2008As the Verde court noted, “defendant was free to rebut the information in the certificate” and in fact did so, and “the jury [was] free to credit [defendant’s expert’s] testimony and to discredit the certificate of analysis as [it] saw fit” (444 Mass at 284, 285, 827 NE2d at 706 ). 13 In a detailed opinion, the Supreme Court of California in Geier (41 Cal 4th 555, 161 P3d 104 [2007]) also confronted this precise issue in the context of DNA testing.

2008As the Verde court noted, "defendant was free to rebut the information in the certificate" and in fact did so, and *155 "the jury [was] free to credit [defendant's expert's] testimony and to discredit the certificate of analysis as [it] saw fit" (444 Mass at 284, 285, 827 NE2d at 706 ). [13] In a detailed opinion, the Supreme Court of California in Geier (41 Cal 4th 555, 161 P3d 104 [2007]) also confronted this precise issue in the context of DNA testing.

2008As the Verde court noted, “defendant was free to rebut the information in the certificate” and in fact did so, and “the jury [was] free to credit [defendant’s expert’s] testimony and to discredit the certificate of analysis as [it] saw fit” (444 Mass at 284, 285, 827 NE2d at 706 ). 13 In a detailed opinion, the Supreme Court of California in Geier (41 Cal 4th 555, 161 P3d 104 [2007]) also confronted this precise issue in the context of DNA testing.

2008As the Verde court noted, "defendant was free to rebut the information in the certificate" and in fact did so, and *155 "the jury [was] free to credit [defendant's expert's] testimony and to discredit the certificate of analysis as [it] saw fit" (444 Mass at 284, 285, 827 NE2d at 706 ). [13] In a detailed opinion, the Supreme Court of California in Geier (41 Cal 4th 555, 161 P3d 104 [2007]) also confronted this precise issue in the context of DNA testing.

1992In this regard, we decline to construe the dictum in People v Sherwood ( 160 AD2d 1203 , lv denied 76 NY2d 796 ) as suggesting that such a showing can be established as a matter of law solely through nonexpert testimony by the officer administering the test.

1992Other than the certificate of analysis certifying the adequacy of the chemical composition of lot No. 0916 ampules, whose probative value is subject to question in light of the facts brought to light in People v Serrano ( 142 Misc 2d 1087 , supra) and other cases (see, People v Sperber, 177 AD2d 725 ; People v Uruburu, 169 AD2d 20 , lv denied 78 NY2d 1082 ), no other testimony was submitted to establish that the chemical in the lot No. 0916 ampule used was of the proper kind and mixed in the proper proportions.

1991By virtue of this doctrine of stare decisis, all the trial courts in the Fourth Department would be bound to follow this legal principle in all trials where the same factual predicate is demonstrated (see, People v Jackson, 142 Misc 2d 853 ; People v McMurty, 141 Misc 2d 510 ; People v Waterman, 122 Misc 2d 489 ).

1991By virtue of this doctrine of stare decisis, all the trial courts in the Fourth Department would be bound to follow this legal principle in all trials where the same factual predicate is demonstrated (see, People v Jackson, 142 Misc 2d 853 ; People v McMurty, 141 Misc 2d 510 ; People v Waterman, 122 Misc 2d 489 ).

1991By virtue of this doctrine of stare decisis, all the trial courts in the Fourth Department would be bound to follow this legal principle in all trials where the same factual predicate is demonstrated (see, People v Jackson, 142 Misc 2d 853 ; People v McMurty, 141 Misc 2d 510 ; People v Waterman, 122 Misc 2d 489 ).

1989Hosp., 138 Misc 2d 711 ).

1989(Matter of Steinberg, 137 AD2d 110 [1st Dept 1988].) The grounds for revocation were that a certificate of waiver issued by the State Board of Law Examiners was fraudulently obtained in that Steinberg "withheld material information as to his lack of qualifications” for admission under a rule of court allowing waiver of the Bar examination -for persons whose course of law school study had been interrupted by active service in the Armed Services after completing two thirds of the requirements for graduation (supra, at 115).

1987The People admit that defendant is not herself a public servant, but claim that she may be found guilty of section 175.40 based on principles of accessorial liability, and they cite People v Brody ( 298 NY 352 ) in support of their position.

1969Where, as here, lack of jurisdiction appears on the face of the certificate the presumption of regularity (People ex rel Melenbacker v. Hubbell, 82 Misc. 624 ) is rebutted thereby, (Matter of Kelly v. Monaghan, 9 A D 2d 92, 94) and want of jurisdiction to render the certificate may be raised collaterally, either from an inspection thereof or upon extraneous proof.

1932(Matter of City of Rochester v. Bloss, 77 App. Div. 28, 31 .) Section 20 of article 2 of the Laws of 1914, chapter 444, provides: “ The city clerk shall give notice of the submission of the questions by forthwith posting in at least four public places in the city notice of the filing of the petition and the character of the questions to be submitted.” Concededly, this was not done by the city clerk.

1931When the case was in this court ( 253 N. Y. 592 ), they disavowed any notion either then or at any time that a privilege so inchoate was evidence of a subsisting right.

1901In Van Aiken v. Mayor ( 18 App. Div. 89 ) it is said : “ It would seem to be a condition precedent to the plaintiff’s right to be relieved from the deductions for delay, that the question of responsibility for such delay should have been passed upon by the commissioner of public works or that it should appear that the commissioner had refused to make the prescribed certificate on the subject.” We are required to examine that case critically because if it is, as insisted by the respondent, in all respects identical with the one before us, then it is an authority which we should and would follow

1901It may be that for any violation of law committed by him at the place designated the company or its property might be responsible.” (See, too, People v. Meyers, 95 N. Y. 223, 225 .) The policy of the law contemplates that. the certificate is a privilege to the person named to traffic, at the place named therein; not to that person to traffic at any place or to any other person to traffic at that place.