Opinion
No. 1456–2014.
03-02-2015
The PEOPLE of the State of New York v. Edinson BUENO, Defendant.
Luis Diaz, Esq., for Defendant. Burim Namani, Assistant District Attorney, Office of the Bronx District Attorney, for Plaintiff.
Luis Diaz, Esq., for Defendant.
Burim Namani, Assistant District Attorney, Office of the Bronx District Attorney, for Plaintiff.
Opinion
RICHARD L. PRICE, J.
By indictment filed May 16, 2014, the defendant is charged with aggravated driving while intoxicated (VTL 1192[2–a][a] ), as both a “D” and “E” felony, operating a motor vehicle while under the influence of alcohol (VTL 1192[2] and [3 ] ), both as “D” and “E” felonies, aggravated unlicensed operation of a motor vehicle in the first degree (VTL 511[3][a] [i] ), aggravated unlicensed operation of a motor vehicle in the second degree (VTL 511[2][a][ii], [iv] ), and other related charges.
Leave to Reargue
At the outset, this court notes that nothing contained in the CPL provides for leave to reargue. But the CPLR does, and this court is constrained to follow it. While the Appellate Division, First Department, opined the CPLR has “no application to criminal actions and proceedings,” it was in the context of the defendants' oral motion to set aside the verdict that the court orally decided on the record (People v. Silva, 122 A.D.2d 750, 750 [1986] ). In Silva, the First Department found defendants' claim that the appeal was “procedurally flawed” pursuant to CPLR 2220 invalid because the People were not required to serve a copy of the written order as a prerequisite to appeal where the order was entered orally on the record (Silva at 750). Since then, however, several courts have determined, as this court does, that where there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR that address the issue may be applied in a criminal action (see e.g. People v. Davis, 169 Misc.2d 977 [County Ct, Westchester County 1996, Leavitt, J.]; People v. Radtke, 153 Misc.2d 554 [Sup Ct, Queens County 1992, Goldstein, J.]; People v. Cortez, 149 Misc.2d 886 [Crim Ct, Kings County 1990, Stallman, J.] ).
CPLR 2221 provides in pertinent part:
(d) A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.
Notably, a party may not simply move to reargue. Rather, a party must ask for leave to do so by identifying that reargument is sought, and specify the basis upon which it is sought. Then, to prevail, the defendant must demonstrate that the court “overlooked or misapprehended” matters of fact or law (CPLR 2221 [d] ). To be clear, the purpose of a motion to reargue is to offer the unsuccessful party an opportunity to persuade the court to change its decision, not simply provide a second opportunity to more strenuously advance its argument or present an argument that it initially did not. Although it appears to this court that defendant merely seeks a second bite of the apple, to the extent the defendant claims this court overlooked or misapprehended matters of fact or law, leave to reargue this court's decision dated October 3, 2014, pursuant to CPLR 2221(d) is nevertheless granted.
Search Warrant
By decision and order dated October 3, 2014, this court issued a decision and order on defendant's omnibus motion denying dismissal of the indictment or reduction of the charges, and ordering that a combined Mapp/Ingle/Johnson/Dunaway hearing be conducted. As part of that decision, a sua sponte in camera inspection of the search warrant, underlying affidavit, and the minutes of the application for the search warrant was conducted.
After carefully examining and considering the search warrant, the supporting affidavit, a transcript of the search application proceeding conducted before Justice Kiesel, and the applicable law, this court found that the search warrant application was amply supported by probable cause and properly conducted. The transcript of that proceeding reflects that Police Officer Fiote personally appeared before her, and stated under oath that he observed the defendant seated behind the wheel of a motor vehicle, passed out, and apparently ill. Officer Fiote further stated that the defendant's blood alcohol content was .30. Based on that, Officer Fiote requested a search warrant to obtain vials containing the defendant's blood from Lincoln Hospital for further examination. Accordingly, the court finds that the search warrant was properly issued and declines to controvert it.
Physician–Patient Privilege
Defendant argues that the vials containing his blood drawn at Lincoln Hospital are protected by the physician-patient privilege because CPLR 4504(a) applies the physician-patient privilege to all persons “authorized to practice medicine,” it must include and extend to emergency medical technicians (People v. Mirque, 195 Misc.2d 375 [Crim Ct, Bronx County 2003, Greenberg J]; People v. Hanf, 159 Misc.2d 748 [Co Ct, Monroe County 1994, Marks J] ). Conversely, it may be argued that since CPLR 4504, which also addresses the physician-patient privilege, omits emergency medical technicians from those authorized to practice medicine such as a registered nurse, dentist or podiatrist, the privilege must not extend to emergency medical technicians.
Notably, while there exists a dearth of law on this issue, there appears to be a distinction between emergency medical technicians that administer medical treatment at the behest or direction of a physician (People v. Mirque, supra; People v. Ackerson, 149 Misc.2d 882 [Co Ct, Monroe County 1991, Bristol J] ). Ackerson essentially holds that the physician-patient privilege applies only where an emergency medical technician acts as an agent of a physician. Mirque holds that the privilege applies where an emergency medical technician obtains a patient's medical information that must be disclosed to the hospital's medical staff. The question is, however, whether such an agency relationship must be expressly created or whether it is impliedly established merely upon administering medical treatment. Mirque suggests the latter. But this issue focuses on a patient's medical information that must be disclosed to a treating physician or hospital staff.
To be clear, though not necessarily dispositive here, there is little dispute that an emergency medical technician's observations are not subject to the physician-patient privilege. While the physician-patient privilege applies to medical professionals that acquire medical diagnosis and treatment information through their knowledge, training or skill, it does not extend to conspicuous observations that even a layman could make (In the Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d 525 [2002] ). Under appropriate circumstances, any person may be capable of observing whether a person's breath smells of alcohol, speech is slurred or incoherent, or balance is unsteady; no special skill or training is required, let alone medical. Accordingly, such observations are not protected by the physician-patient privilege (People v. Hedges, 98 A.D.2d 950 [4th Dept 1983] ; People v. Beneway, 148 Misc.2d 177 [Co Ct, Columbia County 1990, Leaman J] ).
That leaves the sole issue of whether the blood itself is subject to the physician-patient privilege. Though it is unclear who at Lincoln Hospital drew the defendant's blood and under what circumstances, it is axiomatic that it was obtained by a technician administering medical treatment as an agent of the treating physician. Contrary to defendant's assertion, nothing contained in CPLR 4504(a) directly or inferentially supports the view that the physician-patient privilege somehow precludes disclosure of blood samples seized pursuant to a lawfully issued and executed warrant in compliance with CPL 690.10. And thus far, no court has held otherwise. In fact, courts have concluded precisely the opposite (People v. Elysee, 49 AD3d 33 [2nd Dept 2007], affd 12 NY3d 100 [2009] ). Although Elysee is a Second Department case, it has been held that the Appellate Division is a state court that has been divided into departments for administrative convenience. Thus, stare decisis requires that in the absence of controlling authority, departments follow precedent set by other departments unless, of course, the Court of Appeals has previously ruled on the issue (Mountainview Coach Lines, Inc. v. Storms, 102 A.D.2d 663 [2nd Dept 1984] ). Elysee therefore controls.
This court notes that while the Court of Appeals affirmed the Second Department's decision in Elysee, it declined to “decide whether CPLR 4504 applies” because “[p]ursuant to Vehicle and Traffic Law § 1194(2)(a), [a] ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of ... breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood.' “
Additionally, the Supreme Court has ruled that there are limited circumstances under which a search warrant is not required for drawing a blood sample in alcohol related cases (Missouri v. McNally, 133 S. Ct 1552 [2013] ). Such willingness supports the conclusion that the existence of a valid search warrant dispels any physician-patient issues. Simply put, not only is the physician-patient privilege entirely inapplicable to blood samples, arriving at any other conclusion defies both logic and rationality as it would per se prohibit the seizure of material evidence otherwise supported by the requisite probable cause.
This constitutes the decision and order of the court.