Opinion
75 KA 19-01741
03-19-2021
The PEOPLE of the State of New York, Appellant, v. Nick J. WILLIAMS, Defendant-Respondent.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (DANIEL R. MAGILL OF COUNSEL), FOR APPELLANT. CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-RESPONDENT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (DANIEL R. MAGILL OF COUNSEL), FOR APPELLANT.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law, counts one and two of the indictment are reinstated, and the matter is remitted to Livingston County Court for further proceedings in accordance with the following memorandum: The People appeal from an order that, inter alia, granted that part of defendant's omnibus motion seeking to suppress the results of a chemical breath test (see Vehicle and Traffic Law § 1194 [2] [a] ) and dismissed counts one and two of the indictment. We now reverse the order insofar as appealed from.
Defendant was charged by an indictment with, inter alia, felony aggravated driving while intoxicated ( Vehicle and Traffic Law §§ 1192 [2-a] [a] ; 1193 [1] [c] [i] [A]) and two counts of felony driving while intoxicated ( §§ 1192 [2], [3] ; 1193 [1] [c] [i] [A]), stemming from an incident that occurred when defendant, while allegedly under the influence of alcohol, drove and crashed a vehicle belonging to his girlfriend. In his omnibus motion, defendant sought, inter alia, suppression of his statements and evidence seized or discovered by the police. County Court granted a Huntley hearing (see People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] ), but denied without a hearing that part of the motion seeking to suppress evidence. The Huntley hearing ensued, at the conclusion of which the court denied that part of defendant's motion to suppress his statements but, as stated above, the court granted that part of the omnibus motion seeking to suppress the chemical breath test results. In suppressing the test results, the court held that a police officer failed to comply with the requirements of Vehicle and Traffic Law § 1194 and also violated defendant's limited right to counsel under People v. Gursey, 22 N.Y.2d 224, 227, 292 N.Y.S.2d 416, 239 N.E.2d 351 (1968).
We conclude that the court erred in granting that part of defendant's omnibus motion seeking to suppress evidence because the court failed to notify the People of its intention to consider that issue and failed to give the People an opportunity to present evidence at the hearing on that issue (see generally People v. Watson , 154 A.D.3d 627, 627-628, 62 N.Y.S.3d 790 [1st Dept. 2017] ; People v. Russ , 19 A.D.3d 746, 747, 796 N.Y.S.2d 444 [3d Dept. 2005] ). At the Huntley hearing, the issues of the officer's compliance with Vehicle and Traffic Law § 1194 and defendant's limited right to counsel were merely ancillary. Moreover, we reject defendant's contention that the limited evidence that was admitted at the hearing supports the court's determination to suppress the chemical breath test results. The evidence at the hearing established that the police administered a field breath test and then a chemical breath test at the jail, only the latter of which is the subject of section 1194 (2) (a) and would be admissible at trial (see People v. Kulk , 103 A.D.3d 1038, 1040, 962 N.Y.S.2d 408 [3d Dept. 2013], lv denied 22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 [2013] ), but the court conflated the administration of both tests in determining that suppression was warranted. On this record, it is unclear whether the officer complied with section 1194 (2) (b) by warning defendant of the consequences of refusal in " ‘clear and unequivocal language’ " before administering the chemical test ( People v. Smith , 18 N.Y.3d 544, 549, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ), or whether defendant voluntarily consented to the test (see generally People v. Odum , 31 N.Y.3d 344, 346, 78 N.Y.S.3d 252, 102 N.E.3d 1034 [2018] ). The record is also unclear whether defendant, who made a request to speak with his attorney, was afforded the opportunity to do so prior to deciding whether to submit to the chemical breath test (see generally Smith , 18 N.Y.3d at 549, 942 N.Y.S.2d 426, 965 N.E.2d 928 ; Gursey , 22 N.Y.2d at 227, 292 N.Y.S.2d 416, 239 N.E.2d 351 ; People v. Dell , 175 A.D.3d 1037, 1039, 107 N.Y.S.3d 586 [4th Dept. 2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 657, 137 N.E.3d 27 [2019] ). We therefore remit the matter to County Court for a new hearing and determination on that part of the omnibus motion seeking the suppression of the chemical breath test results.