Opinion
No. 2013NY053857.
04-28-2016
The PEOPLE of the State of New York, v. Andrew OLIVE, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney by Benjamin Levin, Esq., for the People. Warren S. Sutnick, Esq., Sutnick & Sutnick, LLC., Bronx, for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney by Benjamin Levin, Esq., for the People.
Warren S. Sutnick, Esq., Sutnick & Sutnick, LLC., Bronx, for the Defendant.
MELISSA A. CRANE, J.
On April 18, 2016, the court held a combined Huntley/Dunaway/Johnson hearing on defendant's motion to suppress evidence and to dismiss this case for lack of probable cause. The court also held a hearing on the People's Motion in Limine. During the trial that same week, the court also heard argument on defendant's application to include a missing witness charge in the court's jury charges. The court decided all applications and motions on the record and promised to follow up with a written decision. Accordingly, this writing serves to explain further the court's reasoning.
In the Prosecutor's Information, the People charged defendant Andrew Olive with two counts of operating a motor vehicle while intoxicated (VTL § 1192 [2 ] and VTL § 1192[3] ), as well as operating a motor vehicle while impaired by alcohol (VTL § 1192[1] ). Police Officer Ronald Vincent testified on behalf of the People. Having observed the officer's testimony and overall demeanor, the court finds his testimony credible in all respects.
FINDINGS OF FACT
Officer Vincent has been with the New York City Police (“NYPD”) for approximately ten years. His previous experience with driving while intoxicated incidents amounts to about 90 arrests. Officer Vincent is also a qualified IDTU technician.
On July 14, 2013, Officer Ronald Vincent was stationed on foot at a checkpoint near the Lincoln Tunnel. Other officers were in the immediate area, including Officer Iris Lewis, the arresting officer in this case. During this time, a passerby informed Officer Vincent that defendant was asleep in his car on 11th Avenue in the middle of traffic. Officer Vincent left his position to investigate. Upon arrival, he noticed defendant and a passenger asleep in a Black BMW, with the engine running, in a no-parking lane. Other drivers had to maneuver around defendant's vehicle because it blocked them from making a left turn into the Lincoln Tunnel.
Officer Vincent knocked on defendant's glass window, but defendant did not wake. He then banged on the window several times before defendant awoke. Defendant put down the window. Officer Vincent noticed defendant had bloodshot and watery eyes, and a strong odor of alcohol on his breath. Defendant stated: “I was just sleeping. I am tired.” When Officer Vincent looked in the car, he noticed vomit and a dark colored stain around defendant's groin area on his red pants. Officer Vincent ordered defendant out of the car and had defendant walk to the rear of the car. Once there, Officer Lewis placed defendant under arrest. Officer Vincent then moved defendant's car off of the road, so that the car no longer obstructed traffic. Together, Officer Vincent and Officer Lewis brought defendant back to the NYPD precinct. At the precinct, defendant agreed to take a breath test and, afterwards, a coordination test.
CONCLUSIONS OF LAW
1. PROBABLE CAUSE
An officer has probable cause to arrest a person for committing an offense when it “appear[s] to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator” People v. Vandover, 20 NY3d 235, 237 [2012]. Probable cause for a driving while intoxicated arrest exists, if there are reasonable grounds to believe the defendant had been driving in violation of VTL § 1192 (see People v. Kowalski, 291 A.D.2d 669, 738 N.Y.S.2d 427 [3rd Dept 2002] ; People v. Poje, 270 A.D.2d 649 [3rd Dept 2000], lv. den. 95 N.Y.2d 802 [2000] ).
Here, Officer Vincent observed defendant asleep in his vehicle in the middle of a public street, blocking traffic. It took loud banging on the driver's side car window to awaken defendant. Once defendant woke up, Officer Vincent ascertained that defendant was intoxicated based on the strong odor of alcohol on his breath, and his bloodshot and watery eyes. In addition, Officer Vincent described defendant's disorientation; that defendant could not easily wake up, had parked in the middle of traffic; the dried vomit in defendant's car and the dark colored stain on defendant's red pants.
Officer Lewis was present at the scene. She arrested defendant after Officer Vincent found defendant asleep in his car, parked, with the engine running, and obstructing the flow of traffic on a public street by the Lincoln Tunnel. Officer Vincent's observations justified the conclusion that defendant was operating a motor vehicle under the influence of alcohol, and provided probable cause for Officer Lewis to arrest defendant for driving while intoxicated (see People v. Lerow, 70 AD3d 66, 71 [4th Dept 2009] [probable cause where defendant crashed his motorcycle in an accident and had odor of alcohol on his breath]; see also, People v. Scalzo, 176 A.D.2d 363 [2nd Dept 1991] ; People v. Farrell, 89 A.D.2d 987 [2nd Dept 1982] ; People v. Andrews, 2002 WL 31163137 [Nassau Dist Ct 2002] ).
2. STATEMENT NOTICE
A defendant may challenge the voluntariness of a statement (see CPL 60.45, CPL 710.20 ; see also, Jackson v. Denno, 378 U.S. 368 [1964] ; People v. Huntley, 15 N.Y.2d 72 [1965] [requiring a court, prior to the issue reaching the jury, to determine independently the voluntariness of a confession and make express findings of facts and conclusions of law] ). At a Huntley hearing, the People must prove the voluntariness of defendant's statement beyond a reasonable doubt (People v. Huntley, 15 N.Y.2d 72 [1965] ). Here, the People have met their burden to establish the voluntariness of defendant's statement to Officer Vincent at the scene: “I was just sleeping. I am tired.” Further, the People noticed this statement in their Voluntary Disclosure Form (“VDF”). Accordingly, the court finds defendant's statement—“I was just sleeping. I am tired”—voluntary and properly noticed.
However, the court suppresses defendant's statement—“I am going home”—for several reasons. During the hearings, defendant argued that the People never gave notice for this statement. The only statement that the People noticed in their voluntary disclosure statement was: “I was just sleeping. I am tired.” After hearing oral argument from the parties, the court decided, on the record, to preclude the statement “I am going home.”
Certainly defendant's statement—“I am going home”—is prejudicial because it shows an intent to drive (cf. People v. Page, 266 A.D.2d 733, 734 [3rd Dept 1999] [defendant's statement to police indicating that he intended to go home allowed jury to infer that defendant started the engine to move the vehicle] ). In addition, although the IDTU report contained the statement, “ “I was going home,” the People did not provide notice of the statement in their VDF and did not claim to have served notice for statements contained in the IDTU report at arraignment. Accordingly, that part of defendant's statement”—“I am going home”—was not noticed, is prejudicial, and therefore the court precludes it.
PEOPLE'S MOTION IN LIMINE
After the court's oral ruling on defendant's motion to suppress and to dismiss this case for lack of probable cause, the court then considered the People's Motion in Limine. At issue was whether the People offered adequate testimony during pre-trial hearings to allow Officer Ronald Vincent to provide “substitute testimony” as to Officer Iris Lewis's certified breath test results, without violating defendant's Confrontation Clause right to cross-examine Officer Lewis (see USCA Cons.Amend. 6). Although Officer Vincent did not administer the breath test to defendant, he is a certified and experienced Intoxilyzer 5000 EN Technician. Moreover, Officer Vincent served as the video technician for defendant's breath test. Of note, Officer Vincent remained in the room with Officer Lewis the entire time Officer Lewis administered defendant's breath test. Officer Vincent also observed defendant for at least 20 minutes prior to the administration of the test.
The People contend Officer Lewis is as an unavailable witness, because she is not within the control of the Manhattan District Attorney's Office. Officer Lewis is retired from the NYPD and currently resides in Atlanta, Georgia. She either recently underwent an invasive surgical procedure, or is about to undergo surgery, for cancer. Defendant argues Officer Vincent's testimony would amount to hearsay, and would violate the confrontation clause, because Officer Vincent does not have first-hand knowledge sufficient to testify to the breath test's administration (see Defendant's Response, p. 2). Defendant contends that Officer Lewis, as the arresting officer and administer of the breath test, is a crucial witness to this case.
New York courts have held that “documents pertaining to the routine inspection, maintenance and calibration of breathalyzer machines are nontestimonial under Crawford and its progeny” (see People v. Pealer, 20 NY3d 447, 456 [2013] ; People v. Hao Lin, 46 Misc.3d 20, 24 [2nd Dept, App Term 2014] ). These types of records consequently fall outside the scope of the Confrontation Clause (People v. Pealer, 20 NY3d at 456 ).
Further, there is:
[A]bsolutely no human evaluation or judgment involved in the administration of the test itself the entire process, from turning the instrument on, to the defendant breathing into the instrument, to receiving a breath card with a result, is fully automated. No independent judgment, observation, or interpretation of the results by the technician who conducts the test is involved. (People v. Flores, 47 Misc.3d 1210[A], *4–*5 [Nassau County, Dist Ct 2015] ).
New York Courts have held that an officer, who is certified and experienced with the use of breath test machines, can provide testimony in place of the officer who actually administered the breath test where: (1) the officer who administered the test is unavailable, and (2) the substitute witness can provide sufficient testimony to ensure the test was administered properly (see People v. Hao Lin, 46 Misc.3d at 24 ). Specifically, the results of the breath test are admissible if the substitute witness can verify that the operator carried out certain steps properly. These steps are: “(1) turn on the Intoxilyzer and simulator/already on; (2) subject under observation for 20 minutes/did not eat, drink, smoke, vomit, or regurgitate; (3) observe display/push button to start test/verify time and date; (4) push green button/Insert test card/enter information re date, subject ID, etc., (5) observe display: Air Blank; (6) check simulator temperature –––– Degrees C; (7) Observe display Cal Check; (8) Observe display Air Blank; (9) Observe display Please Blow/Listen for tone to stop; (10) Secure breath sample; (11) Observe display Air Blank; and (12) Test complete. Automatically prints Test Record” (see People v. Flores, 47 Misc.3d 1210[A] at *4 ).
Officer Vincent testified credibly and adequately that he observed all steps Officer Lewis took when she administered defendant's breath test (see People v. Hao Lin, 46 Misc.3d at 24 ; People v. Flores, 47 Misc.3d 1210[A] at *4 ). First and foremost, Officer Vincent testified unequivocally he observed that the simulator temperature was 34 Degrees at the time Officer Lewis administered the breath test (cf. People v. Hao Lin, 46 Misc.3d at 25 [improper to allow substitute witness to testify who did not know whether simulator temperature was within proper range] ) (factor six). Officer Vincent was also quite sure that defendant did not belch, vomit, regurgitate, drink, smoke, or eat, and that he observed defendant for the full 20 minutes (factor two). Further, Officer Vincent watched as Officer Lewis turned on the Intoxylizer instrument (factor one), and observed Officer Lewis display/push button to start test/verify time and date (factor three).
As for the remaining factors, Officer Vincent testified that he observed Officer Lewis input information into the instrument, and that the information was defendant's stated pedigree, because that is what the Intoxilyzer requires the technician to input (factor four) (see People v. Flores, 47 Misc.3d 1210 [A] at *4 ). As for factor five, Officer Vincent's testimony included that he observed the air blank display. Officer Vincent also observed the calibration check, the Air Blank and when the machine automatically displayed written the written direction to “Please Blow/Listen for tone to stop” (factors 7–9). Finally, factors ten through twelve, to the extent, if any, that the machine does not automatically perform these functions, are irrelevant. These factors are “secure breath sample, observe display air blank, test complete automatically prints Test Record” and have to do with what happens after a successful breath test. Here, defendant's breath test produced an insufficient sample. Accordingly, after a hearing on the People's Motion in Limine, the court finds that Officer Vincent's testimony regarding the breath test Officer Lewis administered would not violate the confrontation clause. Therefore, the court permits Officer Vincent to provide substitute testimony at trial.
DEFENDANT'S ORAL APPLICATION FOR A MISSING WITNESS CHARGE
Finally, during and at the close of the trial, the defense requested a missing witness charge because Officer Lewis, did not testify. The People argued that Officer Lewis, who is retired from the NYPD, refused to appear, is out of state, and therefore was not missing, but rather unavailable.
When a party fails to call a witness who has noncumulative, material knowledge about a case, the trial court may, under certain circumstances, instruct a jury that this failure permits an adverse inference against the party for whom that witness would have testified (see People v. Gonzalez, 68 N.Y.2d 424, 427 [1986] ). However, before a court can administer this “missing witness charge,” three factors must exist: (1) the witnesses' knowledge must be material to the trial; (2) the witness must be in the “control of the party against whom the charge is being sought; and, (3) the witness must be available to that party (id ).
There is no dispute that Officer Lewis has material knowledge, because she was the arresting officer who filled out all the paperwork in the case and administered defendant's breath test. To be under a party's “control,” the witness must be one who would be expected to give testimony favorable to that party, if able to do so. (Gonzalez at 429; People v. Modeste, 1 Misc.3d 315, 317 [2003] ). Here, the People do not challenge that Officer Lewis would have been likely to testify in their favor.
Nevertheless, the availability factor cannot be satisfied and therefore a missing witness charge is inappropriate. Availability “refers simply to a party's ability to locate and produce a witness” (Gonzalez at 428; Modeste at 318). According to Officer Vincent's testimony, Police Officer Lewis has retired from the NYPD and now lives in Atlanta, Georgia. Because this case involves a misdemeanor, she is beyond the subpoena power of the District Attorney's Office and this court (see Criminal Procedure Law § 610.30[1] ). The Assistant District Attorney explained that he had communicated with Police Officer Lewis to convince her to appear voluntarily. He even offered to pay her airfare and hotel. Officer Lewis flatly refused. She either had just had, or was about to have, surgery to address a cancerous condition and was not going to come to New York “for this case.” Under these circumstances, it was clear that Officer Lewis was unwilling to travel to NYC under any circumstances to testify and the DA's office could not compel her to appear. Thus, she was not “available.” Moreover, Officer Lewis' testimony would have been cumulative. It was Officer Vincent, actually, who had more knowledge about this case. He was the officer who initially came upon defendant sleeping in his car. Moreover, Officer Vincent was present for the entire breath test, that, as Officer Vincent established, was primarily automatic. The cumulative nature of the missing testimony is a proper basis to deny a missing witness charge (see People v. Macana, 84 N.Y.2d 173, 180 [1994] ; People v. Brown, 57 A.D.2d 238, 239 [1st Dept 2008] ). Finally, defense counsel's constant references, during summation, to Officer Lewis' absence, certainly alleviated any harm the court's refusal to allow a missing witness charge may have caused (see People v. Jules, 2 Misc.3d 1002(A) at * 5 [Criminal Court, Kings County 2004).
ACCORDINGLY, it is ORDERED that the court grants that part of defendant's motion to preclude the statement, “I am going home,” and otherwise denies defendant's suppression motion; and it is further
ORDERED that the court grants the People's Motion in Limine. Officer Vincent may testify as to his observations of defendant prior to the breath test and coordination test. Officer Vincent, a qualified IDTU technician, may also testify about the administration of the Intoxilyzer 5000 EN used in this case. Officer Vincent can provide opinion testimony regarding defendant's blood alcohol content level at the time of the test. The court otherwise denies the People's Motion, including any testimony by Officer Vincent as to Officer Lewis's opinions; and it is further
ORDERED that the court denies defendant's request to include a “missing witness adverse inference” charge in the jury instructions.
This constitutes the decision and order of the Court.