Opinion
26252C-2007.
Decided June 16, 2008.
Marvin Ray Raskin, New York, for Defendant.
Christina Barba, New York, for the People.
The main issues in this case are whether the defendant's unequivocal request to consult with his named attorney prior to being asked to consent to take an Intoxilyzer test will result in the suppression of the defendant's subsequent refusal to take that test, as well as an inculpatory statement made to the arresting officer several hours later at the precinct. Under the specific circumstances of this case, in terms of the refusal, the answer to that question is yes. However, despite the invocation of the right to counsel, the statement made to the officer while the defendant was in custody is not suppressed because it was not deliberately elicited .
The defendant is charged in an information with, inter alia, Operating a Motor Vehicle while Under the Influence of Alcohol (Vehicle and Traffic Law § 1192(3)), Reckless Endangerment in the Second Degree (Penal Law § 120.20), and Resisting Arrest (Penal Law § 205.30). Pursuant to an order of the motion court, a pretrial hearing was held to determine the admissibility of statements alleged to have been made by the defendant, as well as the defendant's refusal to take an Intoxylizer exam. The People called two witnesses, Sergeant George Morales, and Police Officer Melvin Chittum. The court credits the testimony of each of these two witnesses, and makes the following findings of fact based on their testimony.
Sergeant Morales, who has more than 11 years experience as a police officer, had finished working his tour at the 45th Precinct shortly before midnight on April 24, 2007. He left the precinct, in civilian clothes, and proceeded to drive home in his private vehicle. At about midnight, on what would be April 25, 2007, the sergeant was driving on Lafayette Avenue and approached the intersection of that street and East Tremont Avenue in Bronx County. The light was green for traffic traveling on Lafayette Avenue, and the sergeant proceeded to drive into the intersection legally, in order to make a left turn onto East Tremont Avenue. Suddenly, the defendant, driving a large SUV, a GMC Denali, barreled through the intersection heading northbound on East Tremont Avenue, against a red light. The sergeant slammed on his brakes and turned his vehicle, thereby avoiding a collision with the defendant's vehicle. The defendant continued to drive on East Tremont Avenue. The speed limit is 30 mph, and the sergeant estimated that the defendant drove his vehicle at about 100 miles per hour. The sergeant's vehicle reached a speed of about 90 miles per hour as he pursued the defendant. There was other motor vehicle traffic on the street at that time. The defendant drove through red lights at between nine and eleven streets that intersect with East Tremont Avenue. As the defendant's vehicle drove past the service road of the Bruckner Expressway, several individuals were walking across the street toward Patty Doherty's bar. The defendant almost struck two individuals, a man and a woman, at that location; those individuals fell to the ground and narrowly avoided being hit by the defendant's speeding SUV.
The defendant stopped his vehicle at a light at the intersection of East Tremont Avenue and Waterbury Avenue. Sergeant Morales pulled up next to the defendant's vehicle. The sergeant did not identify himself as a police officer at this time. He spoke with the defendant, and in substance advised the defendant that he should drive more carefully because he almost hit two people. The defendant spouted some profanities, and threatened to shoot or kill the sergeant. The defendant then drove his vehicle through the red light and continued driving northbound on East Tremont Avenue. The sergeant once again followed the defendant in his own vehicle. At Ericson Avenue, there is an exit for traffic traveling on the Hutchinson River Parkway. The defendant's vehicle approached that area just as several cars were exiting the parkway. Although those cars had the right of way, the defendant once again drove through a steady red light, narrowly missing one vehicle, and almost triggering a chain reaction pileup with the other vehicles exiting the parkway. The defendant then made a sharp turn onto Blondell Avenue and came to a stop in front of an auto body shop. The sergeant drove his car and parked it directly in front of the defendant's SUV. At about the same time, a tow truck pulled up and stopped in front of the sergeant's car.
Sergeant Morales got out of his car, went up to the defendant's vehicle, and spoke to the defendant, who was still seated in the driver's seat. There were front seat and back seat passengers in the defendant's vehicle. Sergeant Morales told the defendant that he was a police sergeant, showed the defendant his shield, and asked the defendant for his driver's license and the vehicle's registration. The defendant refused to give him any of this paperwork. The sergeant noted a strong odor of alcohol coming from the defendant's breath, and concluded that the defendant had been drinking and was not "fit for driving." The sergeant directed the defendant to remain in his car. The defendant ignored this request and got out of the vehicle, as did the front seat passenger. The tow truck driver exited his vehicle as well, and he, the defendant, and the front seat passenger "surrounded" the sergeant, chanting, in substance, that the sergeant could not do anything because he was off duty. Sergeant Morales called the desk at the 45th Precinct, explained the situation, and asked to have police officers dispatched to the scene. Other officers arrived within a few minutes. The sergeant told the defendant that he was being arrested and directed him to put his hands behind his back, The defendant refused to comply, but eventually the defendant was handcuffed and taken back to the 45th Precinct. The arrest time was noted as 12:42 a.m.
Shortly thereafter, the defendant arrived at the 45th Precinct, where he met Police Officer Melvin Chittum, who was designated to be the "arresting officer," and assigned to process the defendant's arrest paperwork. The defendant was belligerent and cursing when Officer Chittum encountered him in the precinct, and the officer "smelled a strong odor of alcohol" on the defendant's breath. The defendant had one wrist handcuffed to a railing and sat on a bench in the precinct outside the holding cells. The defendant kicked his legs, flailed his arms, and screamed and cursed at other police officers. Officer Chittum attempted to calm the defendant, without any success, and had to handcuff the defendant's other wrist to the rail to prevent him from hurting anyone.
The defendant was eventually taken into the "IDTU" room in the 45th Precinct, where Police Officer Edwards of Highway One was waiting to offer the defendant an opportunity to take an Intoxylizer examination. The defendant sat on a bench in this room, and once again was handcuffed to a rail. A video technician turned on a camera and began to videotape the defendant as he sat on the bench. Seconds after the recording began, the defendant asked, in substance, whether the police were going to be "recording everything I do," and an officer who was off-camera replied, "Yes." During the first two minutes of the taping, police officers are heard speaking in the background, and Officer Chittum is heard giving his name and shield number to another police officer.
About two minutes after the tape began to record, the defendant stated, in substance, "Officer, I would like to have my lawyer present." Officer Edwards, who is off camera, asks the defendant if he has the name of his attorney. The defendant replied, "Yes, I do actually. Joe Tacopina." The officer then asked the defendant whether he had his lawyer's telephone number, and the defendant replied, "Not on me." Officer Edwards asked the defendant, in substance, "Well, how are we going to get his number?" The defendant replied, in substance, "How would I go about this?" Officer Edwards, who now appears on camera in front of the defendant, interrupted the defendant, first telling him,"This is a timed test." The defendant continued to speak, but the officer spoke over the defendant's words, saying, in substance, "No, No, No. Listen to me," making the defendant's words unintelligible. Then Officer Edwards told the defendant, "You don't have an absolute right to an attorney." The officer explained that he would be asking the defendant a series of questions, and that it would be up to the defendant to determine how he wished to respond and whether he wanted to take the test. The officer told the defendant, in substance, that if the defendant provided the officer with not only the name of his attorney, but also that attorney's telephone number, he could "call right now." But, he told the defendant that he had to make a determination whether he wanted to take a test. The defendant replied, in substance, that he "would do whatever" Officer Edwards wanted him to do. The officer told the defendant, in substance, that "it's not what I want you to do. It's what you want to do." The defendant replied, "Okay."
Joseph Tacopina is a well-known criminal defense attorney who practices in New York City.
During the next ten minutes, the defendant engaged in conversation with the police officers, who were again off camera. At one point, the defendant said, in substance, "I can't believe that I am in this situation with an off-duty cop." At another point, he asked Officer Edwards whether the officer administers breath tests on the street, and the officer told the defendant that he did not, because it can be dangerous. Approximately eleven minutes after the tape began, an officer removed the defendant's handcuffs and walked the defendant a short distance. The defendant stood next to Officer Edwards, who noted that the time was now 2:20 a.m. The officer advised the defendant that he has been arrested by Officer Chittum for driving while intoxicated. The defendant protested that Officer Chittum was not the officer who arrested him. Officer Edwards once again advised the defendant that he was under arrest for driving while intoxicated, and asked the defendant if he would take the Intoxylizer test. The defendant answered, "No." Officer Edwards then advised the defendant, in substance, that if he refused to take the test, his license would be suspended immediately and that evidence of his refusal could be used as evidence against him at any hearing or trial, and once again asked the defendant if he would take the test. The defendant once again answered, "No." The officer noted that the defendant had refused to take the test at 2:21 a.m. This was approximately 13 minutes after the tape began to record the defendant, and between 10 and 11 minutes after he asked for his lawyer.
The defendant was then asked to take some coordination tests, and agreed to do so. The results of those tests are videotaped. Officer Chittum then read the defendant his Miranda warnings. The defendant responded that he understood each of his rights. When Officer Chittum asked the defendant if he were willing to answer any questions, the defendant said, "No."
The defense has stipulated that the defendant was read the required Miranda warnings.
The defendant was then placed in a holding cell as Officer Chittum sat nearby and prepared paperwork. The defendant kept yelling and screaming while in the cell, repeatedly cursed at the officer, and repeatedly mentioned Sergeant Morales in his statements. He said in substance on many occasions that his arrest was "bullshit" and that he wanted to get out of there. This went on for more than three hours, and from time to time Officer Chittum spoke to the defendant to try to calm him. At about 6:00 a.m., the defendant was once again yelling, screaming and cursing, using the same type of language that he had been using all night. Officer Chittum tried once again to calm the defendant, but the defendant continued to rail at the officer. Finally, Officer Chittum told the defendant, in substance, "Listen, I don't really care how much you had to drink, It doesn't bother me. Calm down. I'll do the paperwork and get you out of here." At that point, the defendant told the officer, in substance, "I only had four shots of Hennessy tonight."
CONCLUSIONS OF LAW
The evidence at the hearing established that Sergeant Morales had ample probable cause to stop the defendant and place him under arrest. The sergeant personally observed the defendant flagrantly disregard the rules of the road by speeding, going through red lights, and in the process recklessly endanger the lives of pedestrians and motorists. See People v. Ingle, 36 NY2d 413 (1975); People v. Robinson, 97 NY2d 341 (2001). When the sergeant spoke with the defendant and detected a "strong odor of alcohol" on the defendant's breath immediately after the car stop, that observation, coupled with the defendant's decidedly dangerous and potentially lethal driving, gave the officer probable cause to conclude that the defendant should be placed under arrest for operating a motor vehicle while under the influence of alcohol. See e.g. People v. Goodell, 164 AD2d 321, 323 — 24 (2nd Dept. 1982), aff'd, 79 NY2d 868 (1992); People v. Farrell, 89 AD2d 987, 988 (2nd Dept. 1982). Accordingly, none of the evidence obtained in this case is subject to suppression as the fruits of an illegal arrest.
The People also established that the defendant's refusal to submit to the Intoxylizer exam in this case was persistent. The defendant was twice asked to submit to a chemical test to determine his blood alcohol content, and advised that the consequences of such a refusal would include admission of the fact of his refusal into evidence at trial. As such, the refusal comported with this part of the requirements of VTL § 1194(2)(f).
Nonetheless, the evidence of the defendant's refusal is not admissible in this case, because it came after the defendant was denied an opportunity to be able to consult with his named attorney. "[A] defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests the assistance of counsel." People v. Shaw, 72 NY2d 1032. 1034 (1988). While a defendant does not have an absolute right to insist that his counsel be present in the precinct for an in-person consultation before deciding to take such a test if there is a danger that waiting for the attorney to arrive will unreasonably delay the administration of such a test, once a defendant asks to be able to consult with a specific attorney, the police are required to take reasonable steps to try to reach that attorney for at least a telephone consultation. See People v. Gursey, 22 NY2d 224, 229 (1968); People v. Kearney, 261 AD2d 638 (2nd Dept. 1999). If a defendant does ask to consult with a particular attorney, and the police do not take reasonable steps to contact that attorney, then the results of an Intoxylizer test, or the refusal to take one, may be suppressed. See People v. Cole, 178 Misc 2d 166 (Justice Court, 1998).
Here, there is no dispute that the defendant requested the assistance of counsel as he sat in the precinct and the police were getting ready to administer the Intoxylizer test. And, he not only asked for his attorney, but when pressed for the name of that attorney, immediately provided the police with the name of an actual attorney. The request was therefore unequivocal. Cf. People v. Hart, 191 AD2d 991, 992 (4th Dept. 1993). At that moment, the police were required to take reasonable steps to contact that attorney. But, the police officer involved did not do anything that would be considered to be taking a reasonable step in that required direction. He merely asked the defendant if he had his lawyer's telephone number. When the defendant said no, the officer placed the onus on the defendant to provide information to assist the officer in contacting Mr. Tacopina. Of course, seeking a defendant's help in obtaining the requested attorney's telephone number may in fact be a good first step for a police officer to take in accommodating a defendant's request to consult with counsel. But here, when the defendant attempted to respond to that question, the officer shut him down and did not allow the defendant to respond. And, instead of asking questions designed to discover where Mr. Tacopina might live, or where his office might be located, the officer chose to give the defendant what amounted to misleading legal advice. In short, the officer took no affirmative steps to try to contact the lawyer. He did not attempt to call information for the attorney's number, or even listen to anything that the defendant might have proposed that could have led to the discovery of the attorney's number. Under these circumstances, the officer's conduct fell woefully short of what is required under New York's right to counsel rules in this situation.
Not only did the officer make no reasonable attempt to contact the attorney the defendant asked for, the officer, in effect, talked the defendant out of wanting the officer to try to contact that attorney. By telling the defendant that there were time constraints involved, and that there was really no time for an attorney to be contacted, the officer essentially convinced the defendant that the law required that any consultation had to take place then and there, or not at all, and that the defendant needed to make the decision on his own to take the Intoxylizer exam without having the advice of counsel. The People have argued that the test was required to be performed within two hours of the defendant's arrest, and therefore, by implication, there was simply no time to contact a lawyer, even by telephone, and so the officer's statements were correct. Even accepting that this argument is legally sound, a dubious proposition in light of People v. Atkins, 85 NY2d 1007 (1995), the defendant's request for counsel came about half an hour prior to the expiration of the two hour period following the arrest time demonstrated by the People. Thus, the facts show that there would have been more than enough time to at least try to locate the defendant's named attorney and allow for a telephone consultation before the two hour period following the arrest came and went. See People v. Stone, 128 Misc 2d 1009, 1013 (Crim.Ct. Richmond County 1985).
Thus, despite the availability of a significant period of time in which to try to make telephone contact with Mr. Tacopina, the police officer involved chose instead to convince the defendant that he had to make the decision about whether to take the test on his own, without any assistance from counsel. The officer advised the defendant in no uncertain terms that he did not have an "absolute right" to an attorney. That is a dangerous and misleading paraphrase of the law in this area. It is true that a defendant does not have an "absolute" right to the presence of an attorney at the precinct, if the administration of the chemical test will be unreasonably delayed by waiting for the lawyer. See People v. O'Rama, 162 AD2d 727 (2nd Dept. 1990), rev'd on other grounds, 78 NY2d 270 (1991). But, the right to consult with a lawyer in New York in this type of situation always has contemplated the police taking reasonable steps to arrange for at least a telephone communication between attorney and client. Gursey, 22 NY2d at 229. The officer told the defendant that he would call the attorney if the defendant had the telephone number, but since the defendant did not have the number, the decision about whether to take the test had to be made by the defendant himself without input from counsel. This type of exchange undermines both the letter of the law, and the legal principals behind the New York rules.
In Gursey, 22 NY2d at 227, Judge Breitel noted that the Court's unanimous decision recognizing a defendant's right to consult with an attorney prior to deciding whether to agree to take what was then called a "drunkometer" test was made "[i]n light of the current recognition of the importance of counsel in criminal proceedings affecting significant legal rights." As a result, the Court clearly held that a police officer may not "prevent access between a criminal accused and his lawyer, available in person or by immediate telephone communication, if such action does not interfere unduly with the matter at hand." Id. In this case, the officer did prevent access between the defendant and his attorney, by not taking any kind of steps to try to contact that attorney, and by advising the defendant that he did not even have a "absolute" right to such a consultation unless he, personally, had the lawyer's phone number in his possession. But, there simply was no real time constraint that would have prevented the officer from at least trying to obtain the lawyer's telephone number so that the defendant could have had an opportunity to consult with counsel. Under all the circumstances in this case, evidence of the defendant's refusal to submit to the Intoxylizer exam is ordered suppressed.
That decision was made as the law in the "right to counsel" area was evolving in light of the decision of the Supreme Court two years earlier in Miranda v. Arizona, 384 U.S. 436 (1966).
The statement made by the defendant several hours later, in which he admitted drinking "four shots of Hennessy," is not ordered suppressed. Without question, the defendant's right to counsel indelibly attached when he asked for the assistance of his attorney, and mandated that the police not deliberately elicit any statements from him. See Massiah v. United States, 377 U.S. 201, 206 (1980); People v. Glover, 87 NY2d 838 (1995); People v. West, 81 NY2d 370, 373 (1993); People v. Cunningham, 49 NY2d 203, 207 (1980). Notably, the defendant had also asserted his right to remain silent several hours earlier as well, after being read Miranda warnings despite the earlier request for counsel. Thus, the police were required to scrupulously honor the invocation of that separate right and not interrogate the defendant. See People v. Ferro, 63 NY2d 316, 322 (1984). The defense has argued, in substance, that Officer Chittum's statement to the defendant that he "did not care how much he had to drink," prior to the defendant's admission that he had been drinking shots of Hennessy, was designed to deliberately elicit a response from the defendant and therefore violated the defendant's 6th amendment right to counsel, and also constituted interrogation, and therefore violated the defendant's 5th amendment right against self-incrimination. A court is required to consider all the facts and circumstances surrounding a defendant's making an admission in determining whether either a defendant's 5th amendment or 6th amendment rights have been violated. In determining whether interrogation occurred, the court must determine "whether an objective observer with the same knowledge concerning the suspect as the police had would likely conclude that the remark or conduct of the police was reasonably likely to elicit a response." Ferro, 63 NY2d at 319. And, in determining whether the defendant' right to counsel was violated, the court must determine whether a statement made by a police officer to a defendant in custody who has requested an attorney "was designed to elicit information." See People v. West, 237 AD2d 315 (2nd Dept. 1997). In this case, Officer Chittum did not "deliberately elicit" the incriminating statement, nor did he interrogate the defendant.
There is no evidence that Officer Chittum ever questioned the defendant at all. Thus, the question becomes whether, in considering the claimed right to counsel violation, the officer's remark that he did not care how much the defendant had to drink was made to "deliberately elicit" any response. The facts demonstrate otherwise. The officer testified credibly that he had tried to calm the defendant at several junctures throughout the evening, but that each time the defendant started up again with the same loud and disruptive comments. It was against this backdrop that the officer, in an attempt to quiet the defendant once more, told him that he did not care what he had to drink, and to "calm down" once again so that the officer could finish his paperwork. The remark was no different in purpose from any other remark made to the defendant throughout the night, and nothing in the record supports a finding that six hours into custody Officer Chittum decided to circumvent the defendant's right to counsel by deliberately making a statement designed to elicit an incriminating response. Compare People v. Mayerling, 46 NY2d 289, 301 — 03 (1978). The officers remark to the defendant that he did not care how much he had to drink "appears to be completely spontaneous and not a studied effort to elicit information from [the] defendant." People v. Payne, 233 AD2d 787, 789 (3rd Dept. 1996). Accordingly, since the remark was not deliberately elicited, there was no violation of the defendant's 6th amendment right to counsel. Id.
Although the express invocation of the right to counsel should preclude the police from giving a defendant Miranda warnings and seeking to interrogate that defendant, in this case, the defendant was read the warnings. And, the record supports a finding that the defendant invoked his right to remain silent under the 5th amendment. But, the facts do not support a finding that the defendant was being interrogated at the time he made his incriminating remark such that his invocation of his right to remain silent was violated. Of course, despite the defendant's invocation of his right to remain silent, the record shows that the defendant himself was never silent. For hours, he badgered Officer Chittum with statements questioning the validity of his arrest, and bemoaned the fact that he was being held for processing while the officer was completing the arrest paperwork, which is usually substantial in a case where a defendant is charged with "drunk driving." This same officer spent several hours with the defendant. During this period, the defendant had consistently said that the arrest for driving while intoxicated was "bullshit." On the tape, even prior to invoking his right to remain silent, the defendant is seen challenging the fact that he was arrested for driving by intoxicated by Officer Chittum. The evidence demonstrates that all of Officer Chittum's remarks to the defendant throughout the night were innocuous in nature, as they were aimed at trying to keep him quiet and maintain order in the precinct. There is simply no objective basis to conclude that the remark made by the officer that the defendant should "calm down" because the officer did not even care whether the defendant was drinking would result in the defendant's making the incriminating remark he did nearly six hours after being placed under arrest. Thus, since the statement was not elicited as the result of interrogation, the defense request to suppress this statement on 5th amendment grounds is denied as well.
The foregoing constitutes the decision and order of the Court.