Opinion
Index No. CR-01185-21
11-29-2021
PEOPLE of the State of New York, v. Deborah FASCIANI, Defendant.
Westchester County District Attorney, Mount Vernon branch Alvin Thomas, Esq., Attorney for Defendant, 10 Fiske Place, Suite 417, Mount Vernon, NY 10550
Westchester County District Attorney, Mount Vernon branch
Alvin Thomas, Esq., Attorney for Defendant, 10 Fiske Place, Suite 417, Mount Vernon, NY 10550
Lyndon D. Williams, J.
Defendant is charged by misdemeanor information with Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), Criminally Using Drug Paraphernalia in the Second Degree (PL § 220.50 [2]) and by simplified information with Driving While Ability Impaired By Drugs ( VTL§ 1193 [3] ).
A Dunaway/ Huntley/ Mapp hearing was held on November 10, 2021.
At the hearing, Police Officer Nelson Santana testified that he has been employed by the Mount Vernon Police Department for two years. On May 5, 2021 he was working the midnight to 8:00 am shift. At around 5:00 am he was in the vicinity of Lincoln Avenue in Mount Vernon and responded to a radio call regarding an unresponsive female driver in a vehicle on West Lincoln Avenue. When he arrived in the vicinity of 230 West Lincoln Avenue he observed a female, identified in court as the defendant, slumped over the steering wheel of a black Lincoln MKZ. He testified that the defendant was unconscious. Officer Santana knocked on the car door but the defendant was non-responsive. The officers attempted to break the windows to extract the defendant from the vehicle because they believed she was severely injured or possibly deceased. He further stated that the keys were in the ignition and the engine was running. The defendant's vehicle started to roll forward and crashed into Police Officer Santana's police car. Eventually the officers at the scene were able to break the rear driver's side window and pull the defendant from the vehicle. Officer Santana entered the vehicle to unlock the driver's door so he could place the vehicle in park. While doing this, he observed what he believed to be a crack pipe, based upon his narcotics identification training at the police academy, on the floor of the front driver's side of the vehicle. He observed a lighter on the floor of the front driver's side of the vehicle as well. He did not smell the odor or alcohol when inside the vehicle but stated that it smelled like some drug he was not able to identify. Defendant woke up after being pulled from the vehicle and appeared drowsy, incoherent and was unable to stand. Officer Santana observed vomit on the defendant's jacket and pants. He stated that after being pulled from the vehicle, defendant allegedly asked if she was in an accident and "did I hit anybody", "was anybody hurt or killed". Officer Santana stated that Police Officer Marquez was asking defendant questions at the scene and that no Miranda warnings were issued at the scene before or after defendant was arrested.
Defendant was placed under arrest after Officer Santana observed the crack pipe and lighter on the floor of the vehicle. Defendant was then transported to Mount Vernon Police Headquarters and searched in the cell block. During the search an officer found a white rock type substance on her person. Officer Santana searched defendant's purse at headquarters. A crack rock and crack pipe were recovered.
Officer Santana testified that defendant was issued her Miranda rights at the police station by another officer. He was not present when defendant was issued her Miranda rights. Defendant was taken to Mount Vernon Hospital and consented to a blood test. The blood test revealed the presence of cocaine and methadone.
Police Officer Marquez was also dispatched to the scene. She was wearing a body camera and arrived at the scene at the same time but in a separate vehicle. The body camera footage was admitted into evidence at the hearing.
Conclusions of Law
Based upon the credible testimony at the hearing, the court finds that probable cause existed for the defendant's arrest. When evaluating police conduct, courts "must determine whether the action taken was justified in its inception and every subsequent stage of the encounter" ( People v DeBour , 40 N.Y.2d 210, 222, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976) ).
The Court finds the testimony given at the hearing by Officer Santana to be credible. Officer Santana, upon finding the defendant unconscious and slumped over the steering wheel of a running car, had a duty to inquire as to the defendant's safety and thus had a lawful basis for approaching the vehicle ( People v Membrino , 181 Misc 2d 796, 695 N.Y.S.2d 865 [Crim Ct. Kings Co. 1999] (probable cause to arrest for DWI existed where defendant was found asleep or unconscious, slumped over the steering wheel with engine running)). When the defendant was non-responsive and the vehicle crashed into the officer's patrol car, the officers exercised due care in breaking the window to extract the still-unconscious defendant from the vehicle. While performing a reasonable and lawful police function of extracting the unconscious defendant, and attempting to put the moving vehicle in park, Officer Santana observed the crack pipe and a lighter in plain view of the floor of the vehicle. It is well settled that "[a] crack pipe is a tell-tale sign of narcotics possession" (People v Morgan , 24 Misc 2d 1250 (A) [Sup Ct. Kings Co. 2009] (citing People v Kettles, 62 A.D.3d 902, 879 N.Y.S.2d 208 [2d Dept 2009] ; People v Edwards , 160 A.D.2d 501, 554 N.Y.S.2d 167 [1st Dept 1990] ). The officer's observation of the crack pipe and lighter, coupled with an unconscious, drowsy, incoherent driver, provided probable cause to believe the pipe contained crack cocaine and to arrest the defendant ( People v Rives , 237 A.D.2d 312, 654 N.Y.S.2d 797 [2d Dept 1997] (observation of glass pipe on front seat of vehicle provided probable cause for arrest); People v Khan , 182 Misc 2d 83, 697 N.Y.S.2d 457 [2d Dept 1997] (reversing trial court determination and finding that probable cause to arrest existed where defendant, while legally parked with the engine running, found asleep or unconscious, slumped over the steering wheel with head back); People v Edwards , 160 Ad2d 501, 554 N.Y.S.2d 167 [1st Dept. 1990] (probable cause to arrest defendant existed upon observation of glass pipe).
At the police station, defendant was searched incident to a lawful arrest. The crack rock recovered from her person is not suppressible ( People v Davis , 32 A.D.3d 445, 821 N.Y.S.2d 217 [2d Dept 2006] ; People v Lynch , 254 A.D.2d 503, 680 N.Y.S.2d 112 [2d Dept 1998] ). Similarly, the search of her purse at police headquarters was a lawful inventory search. Accordingly, the crack rock and crack pipe found during this search is not subject to suppression ( People v Morales , 189 A.D.3d 1464 [2d Dept. 2020] ).
Turning to defendant's Huntley motion, defendant moves to suppress her statements on the ground they were involuntarily made. CPL § 710.30 (1)(a) requires the People to serve notice of any statement intended to be offered at trial made by the defendant to law enforcement within fifteen days of arraignment. The People served notice pursuant to CPL § 710.30 indicating that on May 5, 2021 at 5:12am, defendant allegedly made statements to Police Officer Marquez at the scene of the arrest. Per the notice, defendant allegedly said that she: 1) Operated the Vehicle, 2) Did not drink since operation of vehicle ceased, 3) Was driving to Yonkers, 4) Was driving from Home, and 5) Other: Methadone. The notice further provides that Miranda warnings were given by "PO Santana".
During the suppression hearing, Police Officer Santana testified that he did not issue Miranda warnings to the defendant. Morever, there was no testimony elicited at the hearing that the defendant made the above noticed statements to Police Officer Marquez. Officer Santana merely stated that he heard Police Officer Marquez questioning the defendant at the scene but did not specifically testify as to what questions were asked by Officer Marquez and defendant's responses. Accordingly, the defendant's motion to suppress the noticed statements is granted as the People failed to meet their burden of establishing that the noticed statements were voluntarily made by the defendant.
Officer Santana testified that the defendant asked if she was in an accident and "did I hit anybody", "was anybody hurt or killed" at the scene after being removed from the vehicle and before being placed under arrest. These statements were unnoticed by the prosecution. The People contend that the statements made by the defendant at the scene were "voluntary excited utterances". Defense counsel did not move to preclude or suppress these specific statements at the hearing but stated during summation for the court to refer to defendant's motion papers. In the omnibus motion filed with the Court that served as the basis for the granting of this Huntley hearing, defendant moved for both the preclusion and suppression of unnoticed statements.
When a defendant moves for suppression of statements and a Huntley hearing is held, the defendant has been "afforded ... the same opportunity for a court to pass upon the admissibility of the statement as he would have had if timely notice had been given" ( People v Amparo , 73 N.Y.2d 728, 729, 535 N.Y.S.2d 588, 532 N.E.2d 94 [1988] ). At the hearing the court has an opportunity to review the circumstances under which the statement was given and to determine its voluntariness, including whether it was truly spontaneous or the functional equivalent ( People v Chase , 85 N.Y.2d 493, 626 N.Y.S.2d 721, 650 N.E.2d 379 [1995] ). Further, the defendant is put on notice of the People's intent to use the statement and is provided ample opportunity to challenge the statement (People v Castillo , 2018 NYLJ LEXIS 3860 [Sup Ct. Kings Co. 2018]) (citing People v McCray , 53 Misc 3d 19, 23 [2d Dept. 2016], People v Schnugg , 257 Ad2d 669, 670, 684 N.Y.S.2d 581 [2d Dept 1999] ).
Here, the People consented to and the Court conducted a Huntley hearing, wherein the unnoticed statement was elicited. "Notice of intention to offer statement evidence need not be served upon the defendant where there is no question of voluntariness (see People v Greer , 42 N.Y.2d at 178, 397 N.Y.S.2d 613, 366 N.E.2d 273 )." "Having been alerted to the unnoticed statement [the defendant] was afforded a full opportunity to litigate the statement's admissibility. By proceeding in this fashion, the defendant waived preclusion" (People v Castillo , 2018 NYLJ LEXIS 3860 [Sup. Ct. Kings Co. 2018]).
At the hearing, the prosecution has the burden of proving that the statements made by defendant to law enforcement were voluntary. A defendant who is in custody may not be subject to custodial interrogation without first receiving her Miranda rights. With respect to this unnoticed statement, the court finds that the statement was spontaneous and made after the defendant was rescued from the vehicle and before she was placed into custody. Accordingly, the Court finds that the statements were voluntary and Miranda warnings are not required. The unnoticed statements are admissible ( People v Cox , 215 A.D.2d 684, 628 N.Y.S.2d 294 [2d Dept 1995] ).
This constitutes the Decision and Order of this Court.