Opinion
2017NY029233
05-15-2018
The PEOPLE of the State of New York, Plaintiff, v. ROY R., Defendant.
ADA Kathleen Coulson, for the People Jamie Niskanen–Singer, Esq., for the Defendant
ADA Kathleen Coulson, for the People
Jamie Niskanen–Singer, Esq., for the Defendant
Althea E. Drysdale, J.
The defendant, Roy R., is charged with driving while intoxicated ( VTL § 1192[3] ), and driving while impaired ( VTL § 1192[1] ).
On May 14, 2018, a Dunaway /Huntley /Wade /Refusal hearing was held before this court. Police Officers Daniel Martinucci and Christopher Siciliano testified for the People. Based on their credible testimony, the court makes the following findings of fact and law.
Findings of Fact
Police Officers Daniel Martinucci and Christopher Siciliano were on uniformed patrol in a marked radio patrol vehicle beginning at 11:15pm on May 20, 2017 and ending at 7:50am on May 21, 2017. At approximately 12:25am, they received a radio run, which dispatched them to 10th Avenue and 203d Street for a two-car accident. A male, Imad, was one of the car operators. And, he called for the police. The other operator was the defendant, Roy R.
When they arrived at the location, Officer Martinucci spoke to Imad and learned that Imad was travelling southbound on 10th Avenue, and when he tried to make a left, the vehicle behind his vehicle tried to overtake his vehicle, causing the accident. Imad observed that a male was driving the vehicle that hit him. But, there was only a female occupant standing by the other car. Imad told Officer Martinucci that the female was not the driver and that the driver was a male. Officer Martinucci testified that when he told the female that they would have to start drafting official documents for an accident report, which had to be submitted to insurance, she became scared and said that she would call the defendant back to the scene. And, when the defendant arrived at the scene at 12:45am, Officer Martinucci continued his investigation. Officer Martinucci asked the defendant if he was the driver, and the defendant admitted that he drove the vehicle. Officer Martinucci also observed the defendant with pale face, watery eyes, unsteady feet, and a moderate odor of alcohol. Officer Martinucci called for assistance to administer the portable breathalyzer test, which was offered and refused at 12:49am. Officer Martinucci testified that the defendant stated that he had three drinks in response to his question whether he drank any alcohol. Officer Martinucci believed that this question was posed sometime between 12:45am to 12:49am. And, he honestly testified that at that point, the defendant was not free to go because he had already determined that the defendant was driving the vehicle and involved in the accident. Officer Martinucci then went back to Imad but it is not known what, if anything, was said to him. Officer Martinucci testified that Imad stated, "that was the driver, yeah."
Officer Martinucci testified that once the defendant refused the portable breath test at 12:49am he was placed under arrest, but it was not officially recorded until the Sergeant came to the scene to verify that there was probable cause for an arrest at about 1:30am. The defendant was transported to the 28th Precinct's Intoxicated Driver's Testing Unit for further testing.
At the IDTU, the IDTU technician indicates that the start time for the testing is 2:57am. The IDTU technician offered the defendant an Intoxilyzer test, to which the defendant refused. The IDTU technician read the defendant refusal warnings and offered the test again. The defendant refused. Thereafter, the defendant consented to physical coordination tests, and was then administered his Miranda rights. The defendant indicated that he understood all his rights by answering yes to each question, and nodding his head up and down. The defendant then waived his right to counsel and consented to speak to Officer Martinucci. Specifically, the defendant answered questions on the IDTU questionnaire, and in sum and substance, indicated that he was driving the vehicle and he had two or three drinks before driving the vehicle. The testing concluded after the questioning.
Findings of Law
Motion to Suppress Identification
The defendant's motion to suppress his identification by Imad is granted. While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive (see generally People v. Berrios , 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971] ).
The People never identified what type of identification procedure was utilized in this case. But, the court will presume that the police conducted a show-up identification. Here, the police were justified in having the female occupant call the defendant back to the scene to make an identification shortly after and near the alleged incident (see People v. Brisco , 99 N.Y.2d 596, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] [show-up reasonable when it took place at the scene of the crime, within an hour of the commission of the crime, and in the context of a continuous, ongoing investigation.] ). But, the People presented no evidence at the pre-trial hearing, except for the testimony of two police officers who did not testify as to what transpired between the officers and the female occupant, for example, what she said to the defendant to bring him back to the scene. In fact, there was no testimony as to what triggered the other witness, Imad, to say, "that was the driver, yeah" (cf. People v. Jerry, 126 A.D.3d 1001, 4 N.Y.S.3d 317 [2d Dept. 2015] [People established reasonableness and non-suggestiveness of show-up "through the testimony of the police officers ... provided a detailed account of the physical circumstances of the procedure"] ). Motion to Suppress Statements
The defendant's statement that he had 3 glasses to drink at the scene of the accident is suppressed. Officer Martinucci testified that he would not have let the defendant leave at that point since he already established that the defendant was the operator of the vehicle and exhibited the indicia of intoxication. But, additionally, the defendant could not have reasonably believed he was free to leave when he was called back to the scene (see People v. Baez , 95 A.D.3d 654, 944 N.Y.S.2d 539 [1st Dept. 2012] [no reasonable person innocent of any crime would have believed that they were free to leave] ) because Officer Martinucci had called for assistance from another unit to perform a portable breath test.
But, the defendant's statement that he was driving, was made in response to investigatory and non-custodial interrogation (see People v. Tieman , 132 A.D.3d 703, 703–4, 17 N.Y.S.3d 743 [2d Dept. 2015], and People v. Henriquez , 39 Misc. 3d 134[A], 2013 WL 1629286 [App. Term, 1st Dept. 2013] ). Officer Martinucci was trying to find out who was the actual driver of the vehicle since the female occupant claimed that she was also the driver. And, the defendant's statements made in response to the IDTU questionnaire are not suppressed because the defendant waived his Miranda rights after being advised of them ( People v. Henriquez , 159 A.D.3d 541, 70 N.Y.S.3d 507 [1st Dept. 2018] ).
Motion to Suppress Refusal Evidence
The defendant's motion to suppress his refusal evidence is granted.
A person who operates a vehicle in New York is deemed to have provided consent to a chemical test of his or her breath in order to determine the blood alcohol content (see Vehicle and Traffic Law § 1194[2][a] ). A driver of a vehicle has a qualified right to decline to voluntarily take that chemical test provided they have an understanding that this refusal will result in the immediate suspension and ultimate revocation of the motorist's driver license for a period of one year ( People v. Sirico , 135 A.D.3d 19, 18 N.Y.S.3d 430 [2d Dept. 2015], citing VTL § 1194, and People v. Smith , 18 N.Y.3d 544, 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ). This refusal "shall be admissible in any trial, proceeding or hearing" based upon a violation of VTL § 1192, "but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" ( VTL § 1194[2][f] ; People v. Sirico , 135 A.D.3d 19, 18 N.Y.S.3d 430 [2d Dept. 2015] ; see Matter of Gargano v. New York State Dep of Motor Vehs , 118 A.D.2d 859, 860, 500 N.Y.S.2d 346 [2d Dept. 1986] ). And, the chemical breath test must be performed within two-hour time period following arrest when the test is conducted pursuant to deemed consent ( VTL § 1194[2][a] ).
But, recently, the Court of Appeals held in People v. Odum, 31 N.Y.3d 344, 78 N.Y.S.3d 252, 102 N.E.3d 1034, 2018 NY Slip Op. 03173, 2018 WL 2048709 [2018], that the "two-hour rule," as a matter of law, also applies the one's refusal to take a breath test. The Court of Appeals held, "[e]vidence of a driver's refusal to take [a] chemical breath test used to determine blood-alcohol content, outside [the] two-hour period after the driver has been arrested for driving while intoxicated, is inadmissible in trial in which driving while intoxicated is alleged because it does not fall within [the] parameters of [the] vehicle and traffic law..." ( id. ). Simply stated, a person cannot refuse to take a test that is no longer authorized under the "deemed consent" provision in VTL § 1194[2][a]. Naturally, the question turns to at what time was the defendant placed under arrest. The People argue that the official time of arrest—1:30am—should be when the two-hour begins. This time is the official recorded time of the arrest when a supervising officer arrives on scene and validates the arrest. But, the defendant argues that the time of arrest should not be the official time, but should be the time the defendant was actually placed in handcuffs and seated in the patrol vehicle, which by Officer Martinucci's testimony was approximately 12:49am. If the People are correct, and the official time of arrest is when a defendant is actually arrested, then the defendant's refusal was made within two hours. But, on the other hand, if the defendant's assertion is correct, then his refusal was made after the two-hour expiration.
An "arrest" occurs when an "intrusion is of such magnitude that [an] individual's liberty of movement is significantly interrupted by police restraint" (see People v. Jones , 172 A.D.2d 265, 568 N.Y.S.2d 88 [1st Dept. 1991] ). And, "handcuffs are generally recognized as a hallmark of [a] formal arrest" (see United States v. Familetti , 878 F.3d 53 [2d Cir., 2017] ).
Here, Officer Martinucci had probable cause to arrest the defendant for driving while intoxicated as it "appear[ed] to be at least more probable than not that a crime has taken place and that the [defendant was the] perpetrator..." ( People v. Carrasquillo , 54 N.Y.2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] ) based on the observed indicia of intoxication and admission to driving (see People v. Thomas , 68 A.D.3d 482, 888 N.Y.S.2d 888 [1st Dept. 2009] [defendant's appearance combined with the smell of alcohol emanating from him gave the officer probable cause to arrest for driving while intoxicated]; People v. Creer , 31 Misc. 3d 1, 919 N.Y.S.2d 261 [App. Term, 1st Dept. 2010] [same] ). Accordingly, the court finds that the time of arrest is 12:49am, as testified to by Officer Martinucci because the defendant was placed in handcuffs and removed to the patrol vehicle's back seat. Thus, his refusal is inadmissible at trial.
The foregoing constitutes the decision and order of the Court.