Opinion
Docket No. CR-031728-22QN
12-04-2023
The People of the State of New York v. Frank, Defendant.
For the People: Melinda Katz, District Attorney (by Abigail Neuviller & Diana Costin) For Mr. Frank: The Legal Aid Society (by James Neville & Nereen Stewart)
Unpublished Opinion
For the People: Melinda Katz, District Attorney (by Abigail Neuviller & Diana Costin)
For Mr. Frank: The Legal Aid Society (by James Neville & Nereen Stewart)
Wanda L. Licitra, J.
On October 11, 2023, this court conducted a Huntley / Johnson / Mapp / Dunaway /V.T.L. § 1194 hearing. Upon the following findings of fact and conclusions of law, the motions to suppress are denied.
Based on the moving papers, the court had also granted a Wade / Crews hearing. The defense now concedes that such a hearing does not apply to this case.
FINDINGS OF FACT
At the hearing, the People called one witness, NYPD Officer Stephen English, shield number 4853. The defense admitted Officer English's body-worn camera video footage as Defense Exhibit A. The defense also admitted Officer Karantzios's body-worn camera video footage as Defense Exhibit B. Having reviewed all the evidence presented and having witnessed the officer's demeanor and appearance while testifying, the court finds as fact all events depicted in the videos and makes the following specific findings.
Officer English is a police officer with the 106th Precinct of the NYPD. He was trained to be a police officer at the NYPD Police Academy. He has been a police officer for four years. Over that time, he has been a part of over a hundred investigations and has made about ninety arrests. About eight of those arrests have related to driving under the influence. Officer English has experience from his patrol duties in dealing with intoxicated people. To determine whether someone is intoxicated, he looks for bloodshot, watery eyes; unsteadiness on the feet; slurred speech; odors of alcohol on a person's breath; and talkativeness.
On December 22, 2022, Officer English was on patrol with his partner, Officer Stapleton. The officers were on patrol, in uniform, and in a marked police vehicle.
At approximately 7:10 p.m., Officer English received a radio run for a vehicle collision. The accident was reported to have occurred at 109th Avenue and Lefferts Boulevard in Queens. The officers responded to the location at about 7:15 p.m. There, Officer English observed a black Toyota sedan and a red Chevy sedan. These vehicles were on a public roadway. Neither vehicle was in motion. It was dusk, but the roadway was lit. It had been raining that night.
When the officers arrived on the scene, the fire department was already present and had shut traffic down. Officer English first approached the red Chevy sedan, and he did so on the driver's side. The Chevy was stopped parallel to the line of parallel parked cars on the street. The driver's side window was down. There was damage to the front hood of the car, which looked pushed and bent upwards. The front of the Chevy was pushed up against the back of the Toyota.
In the Chevy, Officer English observed Mr. Frank in the driver's seat. A member of the fire department was already speaking to Mr. Frank. No one else was in the vehicle. The keys were in the ignition. The airbag was deployed. Mr. Frank was leaned back in his seat.
When Officer English approached the Chevy, the fire department member told him that Mr. Frank was "not really coherent." Mr. Frank told Officer English and the fire department member that his back was hurting. The fire department member also told Officer English that they had called EMS. Officer English asked Mr. Frank what happened, and after Mr. Frank responded, Officer English remarked that Mr. Frank seemed like he got "rocked pretty good." The officer could tell that Mr. Frank was speaking with a "very heavy accent."
After a couple minutes, Officer English told Mr. Frank to exit his vehicle. He said, "come out of the car, we're going to seat you down." Mr. Frank expressed reluctance to getting out of his vehicle. He said he wanted to stay inside. After Officer English said to "come on out" several more times, Mr. Frank got out of the car.
Officer English then again asked Mr. Frank what had happened, and Mr. Frank responded that he was cut off by the black Toyota while driving. Officer English observed that Mr. Frank was unsteady on his feet and had watery eyes and slurred speech. The officers continued speaking with Mr. Frank. They spoke about the keys to the car, took his license and photographed it, and questioned him again about what happened. Mr. Frank said that he was coming back from getting something to eat, the other car was double parked, and that he had hit that car.
Officer English then interviewed the driver of the other car. He told Officer English that he stopped at a red light and that Mr. Frank came from behind "very fast" and hit him. He also said that his back was hurting.
Officer English then used his phone to call other officers to the scene. He expressed that he thought one of the drivers was drunk.
Officer English then observed EMT personnel questioning Mr. Frank about whether he was feeling okay. They suggested that Mr. Frank come to the ambulance to get checked out. Mr. Frank expressed that he wanted to go home. This was at about 7:25 p.m. The EMT personnel asked if there was someone who could pick him up but offered to take him to Jamaica Hospital. They said, "we can't tell you what to do, you got to tell us whether you want to go to the hospital or if you want to go home and get picked up, that's on you." They also said, "we're here to either take you to the hospital or check you out and you tell us you don't want to go to the hospital." Mr. Frank asked if they could take him home, which they said they could not. After speaking further with Mr. Frank, an EMT worker asked him if he had been drinking anything. Mr. Frank said, "yes, you want me to lie to you?"
Officer English and the EMT workers continued to try to persuade Mr. Frank to go to the ambulance and to the hospital. They qualified this by saying, "you don't have to go to the hospital, no one is making you go." Mr. Frank was reluctant but eventually agreed to walk over to and into the ambulance.
Officer English then received a call from his supervisor, Lieutenant Dorsett. He told Lieutenant Dorsett that there was a "guy who basically he crashed into a car stopped at a red light, he's slurring a little bit, stumbling, and he admitted he was drinking." Officer English repeated that he observed Mr. Frank to be "a little stumbly, a little slurred speech," and "a little bloodshot watery eyes." He also repeated, though, that he "can't smell anything right now."
At this point, Officer English decided that he was going to arrest Mr. Frank. He asked his partner, Officer Stapleton, to go to the ambulance door because "he's under." There, Officer Stapleton stood in front of the ambulance door, effectively blocking the only exit. This was at approximately 7:38 p.m. Officer English subsequently had another conversation with the EMT personnel who had looked at Mr. Frank in the ambulance. They communicated to Officer English that they thought Mr. Frank was drunk. Officer English handcuffed Mr. Frank in the ambulance at 7:50 p.m. This was Officer English's first DWI arrest.
After Officer English arrested Mr. Frank, the FDNY transported Mr. Frank to Jamaica Hospital. Officer English also reported to the hospital. There, they were met by Officer Karantzios from the NYPD's Highway Unit. The officer from the Highway Unit offered Mr. Frank a blood test, and he consented both verbally and with his signature. A registered nurse named Alisa Secomar drew the blood, and she did so at approximately 9:25 p.m. Afterwards, Officer Karantzios administered a breath test to Mr. Frank he was instructed to blow. The officer did not ask for Mr. Frank's verbal consent. This was at 9:32 p.m. Officer English also read Mr. Frank his Miranda rights, which Mr. Frank waived. Officer English then read various questions to Mr. Frank, which he answered.
CONCLUSIONS OF LAW
I. Mapp / Johnson / Dunaway hearing
At a Mapp / Johnson / Dunaway hearing, the People have the initial burden of producing facts establishing that each police action was lawful under constitutional search-and-seizure law. (See, e.g., People v. Harris, 192 A.D.3d 151, 157-58 [2d Dep't 2020]). If the People meet their burden of production, the burden then shifts to the defense to show, by a preponderance of the evidence, that a police act was unlawful. (See, e.g., id.).
The People here establish the legality of the police's actions under constitutional search-and-seizure law. The defense has not shown that any of those actions was unlawful.
After receiving a radio run of a vehicular accident and arriving at the scene and observing the accident, Officer English was justified in approaching Mr. Frank's vehicle. (People v. Caisaguano, 78 Misc.3d 1215 [A], at *4 [Crim. Ct., Queens County 2023] [noting that an apparent accident is an "objective, credible" reason for police to approach and request information]).
Officer English was then justified in asking Mr. Frank to exit his vehicle. He did not do so immediately. Rather, by the time he asked Mr. Frank to exit the vehicle, Officer English had made several observations. He had seen that the car had been involved in an accident. He saw that the airbag was deployed. He had been told by a fire department member that Mr. Frank was "not really coherent." He had spoken with Mr. Frank for several minutes and confirmed that observation for himself. To the officer, it seemed that Mr. Frank had been "rocked pretty good." As a result, Officer English's direction to exit the car was objectively justifiable for the purpose of rendering aid or providing emergency assistance. (See generally Brigham City, Utah v. Stuart, 547 U.S. 398 [2006]).
Upon subsequently observing that Mr. Frank was also unsteady on his feet and had watery eyes and slurred speech, Officer English was justified in temporarily detaining Mr. Frank. (See People v. Parker, 197 A.D.3d 741, 742 [2d Dep't 2021] ["Upon observing damage to the defendant's vehicle, the defendant's difficulty in providing his home address, as well as the defendant's red eyes, slurred speech, and anxious behavior, the officers had reasonable suspicion that he was driving while intoxicated."]).
Finally, once Mr. Frank admitted that he had been drinking, Officer English had probable cause to arrest him for driving while intoxicated. (See, e.g., People v. Kowalski, 291 A.D.2d 669 [3d Dep't 2002]).
Accordingly, the Mapp / Johnson / Dunaway motion is denied.
II. Huntley hearing
At a Huntley hearing, the People bear the burden to prove beyond a reasonable doubt that a statement they intend to introduce at trial was voluntarily made. (See People v. Huntley, 15 N.Y.2d 72 [1965]). The People must provide pretrial notice of such a statement under C.P.L. § 710.30.
There are two voluntariness doctrines. (See People v. Dale, 207 A.D.3d 651, 651 [2d Dep't 2022]). The first is a traditional totality-of-the-circumstances analysis, grounded in the constitutional guarantees of due process and the privilege against self-incrimination. (Dickerson v. United States, 530 U.S. 428, 433 [2000]; see also People v. Anderson, 42 N.Y.2d 35, 37-38 [1977]). The roots of that test "developed in the common law, as the courts of England and then the United States recognized that coerced confessions are inherently untrustworthy." (Dickerson, 530 U.S. at 433). "It is basic that ours is an accusatorial and not an inquisitorial system[,] a system in which the State must establish guilt by evidence independently and freely secured and not by coercion to prove its charge against an accused out of his own mouth." (Anderson, 42 N.Y.2d at 37). Accordingly, the People bear the heavy burden of proving voluntariness "beyond a reasonable doubt" before an accused person's alleged statement can be "submitted to the trial jury." (Huntley, 15 N.Y.2d at 78).
The second doctrine of voluntariness concerns the Miranda rule. (Dale, 207 A.D.3d at 651). That rule is a modern "prophylactic" invented by the U.S. Supreme Court to address "the advent of modern custodial police interrogation[s]." (See generally Dickerson, 530 U.S. at 435-38). Such an interrogation-which was not common before late-twentieth century policing-"exacts a heavy toll on individual liberty," "trades on the weakness of individuals," and "blurs the line between voluntary and involuntary statements." (Id. at 435). These problems "heighten[] the risk that an individual will not be accorded his privilege... not to be compelled to incriminate himself." (Id. [internal quotation marks omitted]). As a result, though the rule is a prophylactic invented by judges, there, too, the People "have the burden of demonstrating, beyond a reasonable doubt," that the accused "knowingly, intelligently, and voluntarily waived [their] Miranda rights." (Dale, 207 A.D.3d at 651).
The People provided C.P.L. § 710.30 notice for two groups of statements. The first was made at the scene of the accident. The second was made at Jamaica Hospital after Mr. Frank was Mirandized. The defense makes no specific argument that either group of statements was made involuntarily or in violation of Miranda. The People argue that the first group were made before Mr. Frank was in custody, and the second made only after Mr. Frank waived Miranda.
As an initial matter, all the statements were made voluntarily under the traditional standard. There is no evidence in the record of physical or psychological coercion. (See People v. Chase, 85 N.Y.2d 493, 500 [1995]; cf. Mincey v. Arizona, 437 U.S. 385, 398 [1978] [statements were not of a person's "rational intellect and a free will" where he "had been serious wounded just a few hours earlier," arrived at the hospital "depressed almost to the point of a coma," complained of "unbearable" pain and was "evidently confused and unable to think clearly"]). Nor is there evidence of "other improper conduct or undue pressure." (See People v. Rodney, 85 N.Y.2d 289, 292 [1995]). Nor is there evidence that any statement was "obtained by a promise or statement that creates a risk of falsely incriminating oneself." (See Chase, 85 N.Y.2d at 500).
On both Miranda points, the court also finds for the People. The record does not establish that Mr. Frank was subject to custodial interrogation at the scene, and therefore Miranda warnings were not necessary. A person is in "custody" when, considering "whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave," there has been "a forcible seizure which curtails a person's freedom of action to the degree associated with a formal arrest." (People v. Cabrera, 2023 NY Slip Op. 05968, at *8 [2023] [internal quotation marks omitted]).
In the 1980s, the U.S. Supreme Court instructed that "ordinary" traffic stops do not usually involve the type of "custody" contemplated by Miranda. (Berkemer v. McCarty, 468 U.S. 420, 440 [1984]). Nonetheless, there is no "absolute rule" that "all motorist detentions" do not constitute "custody." (See Pennsylvania v. Bruder, 488 U.S. 9, 10 n.1 [1988] [per curiam]). "If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." (Berkemer, 468 U.S. at 440).
"The issue of whether a suspect is in custody is generally a question of fact." (People v. Trice, 213 A.D.3d 954, 956 [2d Dep't 2023] [noting that a person was in custody when his "location was blocked by at least ten police vehicles and multiple officers were present" and his "hands were placed on top of a police vehicle when he was questioned"]). "The factors to be weighed include the amount of time which the defendant spent with the police, the manner, if any, in which his freedom was restricted, the location and atmosphere of his questioning, the degree of cooperation which he exhibited, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature." (Id. [internal quotation marks omitted]).
Here, the record establishes that Mr. Frank was not in custody at the time of the alleged statements at the scene. He was not in handcuffs; other than being directed out of the car, the police did not restrict his physical movements; and, most significantly, EMS suggested that "if you want to go home and get picked up, that's on you." Thus, Miranda warnings were not necessary at the scene.
Later, at the hospital, Mr. Frank only made statements after knowingly, voluntarily, and intelligently waiving his Miranda rights. (See People v. Jin Cheng Lin, 26 N.Y.3d 701 [2016]).
Accordingly, the Huntley motion is denied.
III. V.T.L. § 1194
At a "V.T.L. § 1194 hearing," the People bear the burden to show that a chemical test was properly administered under V.T.L. § 1194. Here, the defense has moved to suppress the blood test and breath test administered to Mr. Frank at Jamaica Hospital.
Only for the sake of argument, the court assumes that the "breath test" administered was a "chemical test" subject to the specific strictures of V.T.L. § 1194[2]. However, whether this "breath test" was sufficiently reliable to be admitted at trial is not before the court. (See, e.g., People v. Krut, 133 A.D.3d 781 [2d Dep't 2015]; People v. Palencia, 130 A.D.3d 1072 [2d Dep't 2015]; People v. Kulk, 103 A.D.3d 1038 [3d Dep't 2013]; People v. MacDonald, 227 A.D.2s 672 [3d Dep't 1996]; People v. Thomas, 121 A.D.2d 73 [4th Dep't 1986]; People v. Wright, 1 Misc.3d 133 [A] [App. Term, 2d Dep't 2003]). That determination is left to the trial court.
First, V.T.L. § 1194 requires that blood be drawn by only particular categories of persons. (V.T.L. § 1194[4][a][1]). A registered nurse is one category of such persons. (Id.). The People establish here that Mr. Frank's blood was drawn by such a nurse.
Second, V.T.L. § 1194 deems a driver to have consented to a chemical test if it is administered within two hours of a valid arrest for violating V.T.L. § 1192. (V.T.L. § 1194[2][a]). The record here establishes that both tests were administered within that window and were therefore consensual.
As an initial matter, the court rejects the People's argument that a person is "objectively" under arrest whenever the police subjectively declare so. A person is under arrest when "there is a significant interruption of a person's liberty of movement as a result of police action." (People v. Brown, 142 A.D.3d 1373, 1375 [4th Dep't 2016] [internal quotation marks omitted]; see also People v. Jones, 172 A.D.2d 265 [1st Dep't 1991] [noting that an arrest occurs when "an intrusion is of such magnitude that [an] individual's liberty of movement is significantly interrupted"]). The relevant inquiry is what a "reasonable [person], innocent of any crime, would have thought had [they] been in the defendant's position." (People v. Hicks, 68 N.Y.2d 234, 240 [1986]). That is the objective standard-a mixed question of fact and law that must be decided by a court. (People v. Fenti, 175 A.D.2d 598, 599 [4th Dep't 1991]). "The subjective belief of a police officer is not controlling in determining when an arrest occurs." (Id.; see also Hicks, 68 N.Y.2d at 240 ["We have rejected as standards for determining when a de facto arrest has taken place the wholly subjective belief of the officer."]; People v. Mejia, 2 Misc.3d 494, 496 [Crim. Ct., Kings County 2003] ["A police officer's subjective conclusion that an arrest has occurred is never determinative of the issue."]).
Still, the court also rejects the defense's contention that Mr. Frank was under arrest at the time he expressed that he wanted to go home, which was at 7:25 p.m. The objective circumstances do not suggest he was under arrest at that point. In response to Mr. Frank's desire to go home, the EMT workers asked if there was someone could pick him up and they told him that, "we can't tell you what to do, you got to tell us whether you want to go to the hospital or if you want to go home and get picked up, that's on you." As a result, a reasonable person in Mr. Frank's position would not believe their freedom was curtailed to such a degree associated with a formal arrest.
The court concludes that Mr. Frank was arrested around 7:38 p.m., once police began blocking the only exit to the ambulance in which he was sitting. As a result, both tests were administered within two hours of the arrest. The V.T.L. § 1194 motion is denied.
***
In sum, the motions to suppress are denied.
The foregoing constitutes the order and decision of the court.