concurring.
I join the majority in holding — consistent with the great weight of judicial decisions on the subject, see, e.g., People v. Pealer, 20 N.Y.3d 447, 962 N.Y.S.2d 592, 985 N.E.2d 903, 908 & n. 1 (2013) (collecting cases)—that the admission into evidence of calibration and accuracy certificates for breath-testing devices does not violate the Sixth Amendment to the United States Constitution, per the new Confrontation Clause jurisprudence heralded by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Given the uncertainties arising in Crawford’s wake, I take this opportunity to observe that the majority, appropriately I believe, has couched its conclusions in terms of the Supreme Court’s “primary purpose” rubric. See, e.g., Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006).1 In this regard, I am receptive to the argument that breath-testing machinery maintained by law enforcement instrumentalities is, by its nature, used for the purpose of providing evidence in criminal cases, and that it is a fair point that calibration and accuracy testing of the machines should be viewed as being derivative of such purpose. From my point of view, it is only because courts are willing to consider the primary purpose in a more abstract fashion, speaking in terms of the more general aim to maintain equipment accuracy and integrity2— or because we do accept the Williams plurality’s redirection of the test for determining testimonial nature to “targeted individuals],” Williams v. Illinois, 567 U.S. -, -, 132 S.Ct. 2221, 2243, 183 L.Ed.2d 89 (2012) (plurality)—that we are able credibly to couch certifications which may be instrumental to criminal convictions as being “nontestimonial” in character.3
. Although the "primary purpose” terminology arose in the context of questioning by a law enforcement officer, see id., various courts have employed the concept in addressing Confrontation Clause challenges outside that limited setting. See, e.g., Pealer, 962 N.Y.S.2d 592, 985 N.E.2d at 907.
. See, e.g., Pealer, 962 N.Y.S.2d 592, 985 N.E.2d at 907 ("It may reasonably be inferred that the primary motivation for examining the breathalyzer was to advise [a police department] that its machine was adequately calibrated and operating properly.” (emphasis added; citation omitted)).
. Along these lines, I believe it also bears mention that there is legitimate cause for concern with calibration and accuracy testing, particularly in light of blood-alcohol-content thresholds which may control criminal liability or its severity in particular cases. For example, an amicus observes that, nationwide, there have been examples of largescale error in the calibration of breath-test devices, highlighting that over 1,000 Philadelphia DUI cases were compromised due to improper maintenance. See Brief for Amicus Pa. Assoc, for Drunk Driving Defense Attorneys at 11; id. at Appendix 2 (citing "Botched Breath Tests Affect Philly DUI Cases,” Seattle Times, March 23, 2011, http://seattletimes.com/). Although the majority posits that pre-trial motion procedure is available where there is "actual concern about the calibration or accuracy testing,” Majority Opinion, at 570, it does not acknowledge the legitimate role for "concern” in a broad range of cases in which breath-testing evidence will be admitted against criminal defendants or the limited avenues for discovery available to defendants to facilitate a defense inquiry.
While again, I support the majority’s holding, I regard the considerations as being of a more mixed nature than is reflected on the face of the majority opinion.