Opinion
2018BX004861
03-29-2019
The PEOPLE of the State of New York, Plaintiff, v. Alfonso HARSTER, Defendant.
For the Defendant: Hannah Lieberman, Esq., Bronx Defenders, 360 East 161st Street, Bronx, New York 10451 For the People: Paige Cobbs, Esq., Bronx District Attorney's Office, 215 East 161st Street, Bronx, New York 10451
For the Defendant: Hannah Lieberman, Esq., Bronx Defenders, 360 East 161st Street, Bronx, New York 10451
For the People: Paige Cobbs, Esq., Bronx District Attorney's Office, 215 East 161st Street, Bronx, New York 10451
Jeffrey Rosenblueth, J.
MOTION TO SUPPRESS STATEMENTS: DENIED
MOTION TO SUPPRESS REFUSAL: GRANTED
Defendant is charged in the accusatory instrument with one count of Driving While Intoxicated [ VTL § 1192(3) ] and one count of Driving While Ability Impaired by Alcohol or Drugs [ VTL § 1192(1) ].
On June 14, 2018 defendant moved for an order pursuant to CPL § 710.20(1) to suppress any and all evidence of his alleged refusal to submit to a chemical test or in the alternative, a Refusal /VTL § 1194 /Dunaway /Ingle hearing. Defendant further moved to suppress any police observations or in the alternative, a Mapp/Dunaway/Ingle hearing. Defendant further moved for an order suppressing statements made by him to law enforcement officials, or in the alternative, a Huntley/Dunaway hearing. On June 26, 2018 the People submitted their response in opposition to defendant's motion. On June 27, 2018 another court granted a Refusal /Huntley /Dunaway hearing but denied defendant's request for a Mapp /Ingle / VTL § 1194 hearing.
On November 20, 2018 and February 4, 2019, this Court held a Refusal /Huntley /Dunaway hearing. The People called Police Officer ("P.O.") Marleny Felipe as their only witness at the hearing. Defendant did not present any witnesses. The Court finds P.O. Felipe's testimony to be credible in all relevant and pertinent aspects.
FINDINGS OF FACT
P.O. Marleny Felipe testified that she has been with the New York City Police Department for two (2) years and eighteen (18) months. Prior to her time as a police officer, P.O. Felipe attended the police academy for six (6) months and as a part of her training she was taught to recognize whether a person was under the influence of alcohol. P.O. Felipe testified that, based upon her training, the signs of intoxication are slurred speech, bloodshot eyes, the smell of alcohol, and strange body movements.
On February 11, 2018 at approximately 12:00 A.M. P.O. Felipe, Detective Romano, P.O. Francis and P.O. Castalano were on duty patrolling the 44th precinct in a marked police van when they responded to a radio run transmission for backup regarding a car accident at the northeast corner of Edward L. Grant Highway and East 170th Street in the county of the Bronx. P.O. Felipe testified that she and her fellow officers arrived at the scene less than one minute after they received the radio run. Upon her arrival P.O. Felipe observed a green Toyota Camry taxi cab and a black Toyota Camry on Grant Highway. P.O. Felipe stated that the green taxi cab was parked parallel to the curb on Grant Highway behind the black Toyota Camry which was positioned as though it was trying to back up and parallel park next to the curb. P.O. Felipe testified that the green taxi cab was less than a foot behind the black Toyota Camry and that she observed minimal damage to the front bumper of the green taxi cab in the form of a scratch.
P.O. Felipe then spoke with Detective McGyver and Sergeant Pierce who were already on the scene when she arrived. According to P.O. Felipe, Sergeant Pierce informed her that he was initially flagged down by the driver of the green taxi cab and that he observed an open bottle of beer on the "driver's side," but did not specify as to which vehicle. P.O. Felipe also testified that she observed the bottle of beer without indicating if it was in the green or black Toyota Camry. P.O. Felipe stated that she spoke with the driver of the green taxi cab who informed her that his car was parked and defendant, driving the black Toyota Camry, backed up into it.
P.O. Felipe stated that Detective McGyver instructed her to speak to defendant and that she and the other officers present at the scene then approached defendant who was standing next to the black Toyota Camry. P.O. Felipe testified that defendant stood in a "triangle" between the driver's side of the black Toyota Camry and its open driver's side door and the car's headlights and engine were activated. P.O. Felipe asked defendant for his license and registration. P.O. Felipe and her fellow officers stood on the driver's side of the black Toyota Camry and faced defendant. P.O. Felipe testified that defendant seemed a "little agitated" and that she smelled alcohol emanating from his breath when she spoke to him. P.O. Felipe further testified that because she smelled alcohol on defendant's breath she asked him if he had been drinking. In response, defendant first stated that he did not drink, then indicated that he had one drink and subsequently stated that he had two to five beers. Additionally, defendant stated that he was coming from a party with his girlfriend. P.O. Felipe testified that she also noticed defendant had bloodshot eyes, a flushed face and slurred speech. P.O. Felipe stated that during her conversation with defendant, he was not handcuffed and no officer at the scene displayed their weapon. Further, P.O. Felipe stated that defendant was not coerced or threatened to make any statements and never indicated that he wished to end the conversation.
Based upon P.O. Felipe's observations of defendant and her training and experience in recognizing the signs of alcohol intoxication, she arrested defendant for the crime of Driving While Intoxicated at 12:08 A.M., approximately eight (8) minutes after she had arrived on the scene.
Subsequently, defendant was transported to the 45th precinct. At the Intoxicated Driver's Testing Unit ("IDTU") room in the 45th precinct IDTU technician, Police Officer Harrington, offered defendant to submit to a breathlyzer test. P.O. Felipe indicated that Officer Harrington was responsible for the IDTU procedures and she was only observing defendant's interactions with Officer Harrington in the IDTU room.
P.O. Felipe testified that defendant was given three opportunities to blow into the Intoxilyzer 9000 machine. P.O. Felipe testified that she observed defendant place his mouth on the tube of the machine, attempting to blow into it and Officer Harrington telling him that he wasn't blowing properly. The officer further testified that there wasn't enough air compression and that defendant did not blow into the machine "hard enough." P.O. Felipe conceded that since she was on the other side of the room, she could not see or hear whether defendant blew into the machine nor could she see the screen of the machine when defendant attempted to blow into it.
P.O. Felipe also admitted that she has had no training or experience with respect to the operation or the administration of the Intoxilyzer 9000 machine. Specifically, P.O. Felipe testified that she had no knowledge regarding how long an individual needs to blow into the machine to register a breath sample and had no experience with a malfunctioning Intoxilyzer 9000 machine. Moreover, P.O. Felipe did not know if the Intoxilyzer 9000 machine used to test defendant's breath was in working order on February 11, 2018. Specifically, she did not recall whether P.O. Harrington tested the machine prior to defendant's test.
The breathalyzer test procedure was recorded on a DVD and introduced into evidence as People's Exhibit No.1. The video recording depicts, in pertinent part, the following:
P.O. Felipe, defendant and P.O. Harrington are present in the IDTU room. P.O. Felipe stands next to a metal bench on the right side of the room. P.O. Harrington is standing on the left side of the room next to an Intoxilyzer machine. P.O. Harrington states that the "simulator solution is 34 degrees Celsius."
Defendant tells the officers three separate times that he already took a test and doesn't want to take another test. Officer Harrington then asks defendant if he wants to take the breath test: "Yes or no." Defendant asks him to rephrase the question. Officer Harrington repeats his question, after which defendant shrugs his shoulders. Officer Harrington then begins to read the chemical test refusal warnings to defendant and he states: "Let me take the test." Officer Harrington continues to read the refusal warnings. Defendant again interrupts the warnings and asks P.O. Harrington: "If I don't take the test you're going to suspend my license?" Officer Harrington tells defendant to "be quiet" and continues to read the refusal warnings, stating to him:
"You are under arrest for driving while intoxicated. A refusal to submit to a chemical test or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are convicted of the charge for which you were arrested. If you refuse to submit to a chemical test or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest."
After Officer Harrington finishes reading the warnings, he asks defendant once again: "Do you want to take the breath test, yes or no?" Defendant replies: "If I don't take the test you're going to suspend my license. If I take the test what's going to happen?" Officer Harrington then offers to read the refusal warnings again to defendant and defendant replies "No, no, no I already heard." Officer Harrington offers once more to read the refusal warnings to defendant and defendant twice replies: "Take the test."
Officer Harrington then takes a sealed mouthpiece, unwraps it and places it on a tube attached to the Intoxilyzer machine. While the officer unwraps the mouthpiece he tells defendant: "What you're going to be doing is you're going to blow into this." Defendant states: "What I'm going to be doing is very simple, very soon but it doesn't matter to you." Officer Harrington states: "What you're going to be doing is this- you're going to blow into this mouthpiece for approximately eight (8) to ten (10) seconds, alright? Pay attention. Mr. Harster." Defendant replies "I'm listening to you. Blow for about eight (8) to ten (10) seconds."
Officer Harrington asks defendant to step up to the machine. Defendant does so with the front of his body facing towards the machine and his back facing the video recording device. Officer Harrington tells defendant: "Take a deep breath and blow into this straw for approximately eight (8) to ten (10) seconds." During this time, the Intoxilyzer machine continues to emit a series of beeping noises. After approximately four (4) seconds Officer Harrington tells defendant: "Stop. Stop blowing ... ‘cause you're not blowing. When you blow there's an audible tone if it doesn't make a sound, you're not blowing. If you're gonna blow, blow. If not, refuse." During this time the Intoxilyzer machine continues to emit a series of periodic beeping noises. Defendant is given a second opportunity to blow into the machine. P.O. Harrington stops defendant after approximately two (2) to three (3) seconds and once again tells him: "Stop. You're not blowing." After an exchange regarding the placement of defendant's hands, Officer Harrington grabs the tube attached to the Intoxilyzer machine and tells defendant: "You blow into this device for approximately eight (8) to ten (10) seconds, alright? If you're gonna blow, blow. Or not. One more time." Defendant replies "I'm blowing" and Officer Harrington tells him "No, you're not. This is the last time I'm going to offer this to you. If not, it will be a refusal." Officer Harrington holds the tube attached to the Intoxilyzer machine and gives defendant a third opportunity to blow into it. P.O. Harrington stops defendant after approximately three (3) to four (4) seconds of blowing and the Intoxilyzer machine emits multiple loud pitched beeping tones. Officer Harrington states: "Refusal by conduct" while defendant asserts: "I blew, I blew." Officer Harrington tells defendant to "sit down" and defendant repeats again: "I blew, I blew."
Finally, P.O. Felipe testified that on February 11, 2018 at approximately 11:15 A.M. she was present inside of the video statement room at the Bronx County District Attorney's office with defendant and Assistant District Attorney ("ADA") Kathleen Behr. The video recording, People's Exhibit # 2, depicts in pertinent part:
P.O. Felipe and defendant sit across from ADA Behr. Defendant asks ADA Behr: "Are you my prosecutor?" ADA Behr replies that she is not and then asks defendant if he speaks and understands English, to which he replies "poorly." ADA Behr tells defendant he is being video recorded, that she is going to give him the opportunity to make a statement and reads the following Miranda warnings to him:
"You have a right to remain silent and refuse to answer questions. Anything you do or say can be used against you in a court of law. You have the right to consult an attorney before speaking to the police or me. You have a right to have that attorney present during any questioning now or in the future If you cannot afford an attorney one will be provided without cost to you. If you do not have any attorney available you have the right to remain silent until you can consult with one."
After ADA Behr lists each Miranda right she asks defendant if he "understands" and each time defendant replies: "Yes." Defendant then agrees to make a statement and ADA Behr asks defendant: "Tell me what happened?" Defendant then provides, in sum and substance, the following narrative:
"I was driving last night. I drive for a living. I'm a cab driver. I cannot pass so I am getting into a dispute with another cab driver. I parked in front of him and the cops came over and gave me a breathlyzer test because they thought I was under the influence. I don't think that they got the result they wanted then I was arrested there immediately and we went to another precinct where there was a highway patrol officer. We repeated the same test. I asked why he [Officer Harrington] was repeating the test ...so I blew a few times this is true, I blew a few times blow and blow [Officer Harrington said] come on blow like this, I blew like this [Officer Harrington said] blow like that, I blew like that. I blew like seven times I kid you not. [Officer Harrington said] you're not blowing right, that's it. It's refusing the test. I never refused the test."
ADA Behr then stops defendant and asks him "OK you just weren't able to blow how they needed you to blow?" Defendant replies: "I blew seven times. I blew into this thing seven times [Officer Harrington said] blow this way that way, you're not blowing right. I said but I am blowing I don't know what you want me to do. I'm suffocating..." Defendant continues to describe his efforts to blow into the Intoxilyzer machine when ADA Behr asks him "OK you told me you drive for a living? What kind of car?" Defendant answers: "A Toyota Camry." ADA Behr asks defendant if that is the vehicle he drove the night of the incident and defendant replies in the affirmative. ADA Behr then asks defendant where he was prior to getting into an argument with the cab driver at the scene and defendant tells her: "Actually I dropped somebody off around there and I was going home [be]cause I live on Kingsbridge." Defendant stated that he dropped off a passenger. ADA Behr then asks defendant what he did prior to dropping off the passenger and defendant replies: "I was looking for a room because the person where I live at this moment needs the room by today." ADA Behr asks defendant if there was alcohol "in his car" and defendant replies: "There was a bottle of beer. Not mine, the passenger's that I was dropping somewhere off. It was in the back." ADA Behr asks defendant about the amount of beer he consumed that evening and defendant responds: "Me personally, that night? I didn't have any beer. I did not have beer. I did not have any alcohol." ADA Behr then tells defendant that the portable breath test he took at the scene of the incident indicated that he did consume alcohol and she knew that he had a conversation with P.O. Felipe about beer as well. Defendant then replies that he had: "Three beers, maybe. I was going home, honestly I was [going home]. Driving across University then park the car to go home. I was looking for a room the whole day. I was just going from point A to point B and you know, eventually, I had a passenger." ADA Behr the asks defendant if he "made contact with the other car" and defendant replies: "No ... contact in what way?" ADA Behr asks defendant if his car touched the other car in any way and defendant replies in the negative. ADA Behr then concludes the video recording of defendant's statements.
DEFENDANT'S CLAIMS
Defendant claims that with respect to defendant's statements made to P.O. Felipe at the scene of the incident they should be suppressed because they were a product of custodial interrogation without Miranda warnings administered to him. As to defendant's statements made to ADA Behr at the Bronx County District Attorney's office, he asserts that because there was no testimony as to what occurred between the time of his breathlyzer test and the time of his statements to ADA Behr at the District Attorney's office, the People have not satisfied their burden of proving beyond a reasonable doubt that his waiver of the Miranda rights was voluntary.
Additionally, defendant claims that his alleged refusal by conduct to take the breathlyzer test should be suppressed because the People failed to prove that it was intentional or willful. Specifically, defendant argues that because the People did not present evidence that the Intoxilyzer 9000 machine was in proper working order, the People failed to meet their burden in demonstrating that the refusal was attributable to him rather than the breathlyzer machine. Defendant further contends that his alleged refusal by conduct should be suppressed because P.O. Harrington did not give adequate instructions to him regarding how to blow into the Intoxilyzer machine after it failed to register his breath sample.
THE PEOPLE'S CONTENTIONS
The People contend that defendant's statements to P.O. Felipe made at the scene of the incident were not the product of custodial interrogation and therefore, it was not necessary for the officer to have given defendant Miranda warnings. Additionally, the prosecution contends that such statements at the scene were voluntarily made. As to defendant's statements made at the Bronx District Attorney's office, the People contend that they were voluntarily made after defendant knowingly waived his Miranda rights.
With respect to defendant's refusal of the breathlyzer test, the People contend that it should be admissible at trial because (1) P.O. Harrington gave defendant clear and unequivocal refusal warnings; (2) defendant's conduct of not properly blowing into the machine constituted a refusal and (3) it was not necessary for the People to prove that the Intoxilyzer 9000 machine was in good working order at the time of defendant's breathlyzer test.
CONCLUSIONS OF LAW
Dunaway Issues
At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of police conduct (see People v. Baldwin , 25 NY2d 66 ; People v. Malinsky , 15 NY2d 86 ). The People must therefore, demonstrate that the police acted with probable cause when they arrested defendant (see CPL § 140.10(1)(b) ; People v. Bouton , 50 NY2d 130 ; People v. Berrios , 28 NY2d 361 ). Once this burden has been met, the defendant is responsible for proving the conduct was illegal (see Id. ; People v. Baldwin , supra). Evidence obtained by an illegal arrest is inadmissible at trial (see Mapp v. Ohio , 367 US 643 ).
Probable cause does not require "proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed ... [t]he legal conclusion is to be made after considering all of the facts and circumstances together," People v. Bigelow , 66 NY2d 417 quoting People v. McRay , 51 NY2d 594. In determining whether probable cause exists to effect an arrest for driving while intoxicated the relevant inquiry is "whether, viewing the facts and circumstances as they appeared at the time of the arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated a vehicle while under the influence of [alcohol]," People v. Farrell , 89 AD2d 987.
In People v. DeBour , the New York Court of Appeals established the basic framework for measuring the intrusiveness of police action in New York as follows: (1) a law enforcement official may approach a citizen and request information provided that there is an objective, credible and articulable reason to do so; (2) the second level "common law right of inquiry" permits a momentary stop when there is a founded suspicion that criminal activity is afoot; (3) the third level of inquiry permits an officer to forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing or is about to commit a felony or misdemeanor and (4) an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing or is about to commit a crime, People v. DeBour , 40 NY2d 210.
Where a defendant's vehicle is already stopped, police need only have an articulable reason to approach the vehicle and make an inquiry [see People v. Williams , 167 AD2d 236 ; People v. Spencer , 84 NY2d 749 ; People v. Fabian , 178 AD2d 544 ; People v. Vaughan , 38 Misc 3d 1206(A) ].
Here, with respect to P.O. Felipe's initial approach of defendant and request for his driver's license and registration, it was proper under the first level of DeBour inasmuch as P.O. Felipe had an "objective, credible and articulable reason to do so." Specifically, it was based upon the officer hearing a radio transmission of a car accident at the subject location and upon arrival observing a black Toyota Camry in front of a green taxi cab which had a small scratch on its front bumper. Additionally, it was justified since the officer had previously spoken to the driver of the green taxi cab who informed her that defendant had collided his black Toyota Camry into his car and P.O. Felipe observed defendant standing by the driver's side door of the black Toyota Camry with its engine and lights activated (see People v. DeBour , supra; People v. Williams , supra; People v. Fabian , supra; People v. Vaughan , supra).
Subsequently, when P.O. Felipe smelled a strong odor of alcohol emanating from defendant's mouth, observed that he had bloodshot eyes and slurred speech and defendant admitted to her that he had a number of beers that evening, a reasonable officer in P.O. Felipe's position could have concluded that defendant had operated a motor vehicle while under the influence of alcohol (see People v. Farell , supra). Thus, P.O. Felipe clearly had the requisite probable cause to arrest defendant for VTL § 1192 related offenses.
Based on the foregoing, defendant's motion to suppress all evidence obtained as a result of an unlawful arrest is denied (see People v. Wesley , 151 AD3d 1270 ; People v. Kucmierowski , 103 AD3d 755 ; People v. Curkendall , 12 AD3d 710 ; People v. Moskal , 262 AD2d 986 ; People v. Creer , 31 Misc 3d 1 ).
Huntley Issues
At a Huntley hearing, the People have the burden of establishing, beyond a reasonable doubt, that statements made by a defendant to law enforcement authorities were made voluntarily and not the product of coercion, promises or false statements which create a substantial risk of false incrimination or undue pressure which undermines a person's ability to make a free choice (see CPL § 60.45 ; People v. Huntley , 15 NY2d 72 ; People v. Chase , 85 NY2d 493 ; People v. Yarter , 41 NY2d 830 ). Generally, the test for determining the voluntariness of a statement is the "totality of the circumstances" standard (see United States v. Bye , 919 F2d 6 ; People v. Anderson , 42 NY2d 35 ). Among the circumstances to be weighed are interrogation techniques such as physical abuse, psychological pressure, food or sleep deprivation or promises of immunity or payment (see Davis v. North Carolina , 384 US 737 ; Ashcraft v. Tennessee , 322 US 143 ; People v. Dunbar , 53 NY2d 868 ).
In Miranda v. Arizona , 384 US 436 the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."
Both the elements of police "custody" and police "interrogation" must be present before law enforcement officials are constitutionally obligated to provide the procedural safeguards imposed upon them by Miranda ( see People v. Huffman , 41 NY2d 29 ).
"The burden is on the People to prove beyond a reasonable doubt that the [defendant] was not in custody before Miranda warnings were given," People v. McCoy , 89 AD3d 1218 citing People v. Baggett , 57 AD3d 1093. "In deciding whether a defendant was in custody prior to receiving his Miranda warnings, the subjective beliefs of defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position," People v. Yukl , 25 NY2d 585 (see People v. Rodney P. , 21 NY2d 1 ; People v. DeJesus , 32 AD3d 753 ). In making such assessment, the court must consider the "totality of the circumstances," People v. Centano , 76 NY2d 837.
With respect to "interrogation" a person is subject to it when he is confronted with "express questioning or its functional equivalent," Rhode Island v. Innis , 446 US 291. The "functional equivalent" of express questioning is "words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response" Id. The Court of Appeals has similarly held that "[w]hat constitutes ‘interrogation’ of a suspect ... is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response," People v. Ferro , 63 NY2d 316. Statements made by a suspect at a preliminary stage of an investigation in response to a law enforcement agency's general inquiry are not usually considered the product of interrogation (see People v. Johnson , 59 NY2d 1014 ; People v. Chestnut , 51 NY2d 14 ; People v. Huffman , supra).
In the instant case, with respect to the "custody" aspect of the Miranda analysis, it is well-settled that "a temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda ," People v. Brown , 107 AD3d 1305 quoting People v. Mathis , 136 AD2d 746 (see Berkemer v. McCarty , 468 US 420 ; People v. Alls , 83 NY2d 94 ). Thus, P.O. Felipe's brief roadside detention of defendant in order to investigate the cause of the car accident did not constitute "custody" for Miranda purposes. Further, P.O. Felipe's observation of defendant's physical condition, indicating the indicia of alcohol consumption, "justified detaining him for the limited purpose of investigating whether he was operating his motor vehicle while under the influence of alcohol," People v. Hasenflue , 252 AD2d 829 [see People v. Williams , 81 AD3d 993 ; People v. Parris , 26 AD3d 393 ; People v. Peterson , 22 AD3d 770 ; People v. Myers , 1 AD3d 382 ; People v. Meissler , 305 AD2d 724 ; People v. Mason , 157 AD2d 859 ; People v. O'Reilly , 16 Misc 3d 775 ; People v. Mackenzie , 9 Misc 3d 129(A) ].
Regarding the "interrogation" prong of the Miranda analysis, insofar as P.O. Felipe's question to defendant: "Have you been drinking?" occurred after she detected the odor of alcohol on his breath at the preliminary stage of her investigation of the traffic accident, it cannot be said that defendant was subject to an "interrogation" (see Berkemer v. McCarty, supra; People v. Bennett , 70 NY2d 891 ; People v. Johnson, supra; People v. Chestnut , supra; People v. Huffman , supra; People v. McGreal , 190 AD2d 869 ; People v. Mason , supra; People v. Fiorello , 140 AD2d 708 ). Therefore, inasmuch as there was no "custodial interrogation" of defendant at the scene, P.O. Felipe was not constitutionally obligated to provide Miranda warnings to him.
Additionally, the People proved beyond a reasonable doubt that defendant's statements made at the scene were voluntary since P.O. Felipe testified that during her brief questioning of defendant he was not handcuffed, no officers had their weapons drawn and no threats or promises were made by the police to defendant to force him to make any statements. Further, it is not alleged that defendant suffered any mental or physical impairment which would render his statements to P.O. Felipe involuntary (see People v. Huntley , supra; People v. Chase , supra; People v. Yarter , supra).
Accordingly, defendant's motion to suppress all of his properly noticed statements made at the scene is denied .
On February 4, 2019 at the suppression hearing, the Court granted defendant's motion to preclude his statement made to P.O. Felipe at the scene: "I was coming from a party with my girlfriend" because the People failed to include it in their CPL § 710.30(1)(a) notice served at his arraignment.
With respect to defendant's statements made when he was in custody at the Bronx District Attorney's Office, inasmuch as the video recording, People's # 2 in evidence, clearly demonstrates beyond a reasonable doubt that ADA Behr provided defendant with complete Miranda warnings and defendant indicated that he understood each right, the Court concludes that defendant knowingly and intelligently waived such rights (see Miranda v. Arizona ; supra; People v. Clarke , 130 AD3d 748 ; People v. Robinson , 287 AD2d 398 ).
Further, the People satisfied their burden in proving beyond a reasonable doubt that such statements were voluntary since no evidence was adduced at the hearing that they were the product of force, threats or coercion (see People v. Huntley , supra; People v. Chase , supra; People v. Yarter , supra). As to defendant's speculative claim that his statements should be suppressed because no evidence was presented at the hearing as to what, if anything, occurred between the time of his breathlyzer test and the video recording, it is without merit. Therefore, defendant's motion to suppress all properly noticed statements made to ADA Behr is denied .
Refusal Issues
Vehicle and Traffic Law § 1194(2)(f) provides, in pertinent part, that:
"Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article 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."
The People bear the burden of establishing that a defendant refused to submit to a chemical test (see People v. Camagos , 160 Misc 2d 880 ). A defendant's refusal to submit to a chemical test will only be admissible at trial if the People prove, by a preponderance of the evidence, that clear and proper refusal warnings were given to defendant and that a persistent refusal then followed (see VTL § 1194(2)(f) ; People v. Smith , 18 NY3d 544 ; People v. Morel-Gomez , 33 Misc 3d 1220(A) ; People v. Davis , 8 Misc 3d 158 ). A refusal is considered "persistent" if defendant was "... offered at least two opportunities to submit to a chemical test, at least one of which [took] place after being advised of the sanctions for refusal," People v. Rosado , 158 Misc 2d 50 quoting People v. Thomas , 46 NY2d 100.
"A refusal to submit to a chemical test may be evidenced by words or conduct," People v. Massong , 105 AD2d 1154 ; (see People v. Smith , supra). "As to whether defendant's words or actions amounted to a refusal ... constitutes a mixed question of law and fact that requires the court to view defendant's actions in light of all the surrounding circumstances and draw permissible inferences from equivocal words or conduct," People v. Smith , supra.
Further, "by its terms VTL § 1194(2)(f) applies to a persistent refusal to take the breathalyzer test; it does not apply to a mere ‘failure’ to take or complete the test. The distinction is important. By using the term ‘refusal’ the Legislature made it plain that the statute is directed only at an intentional or willful refusal to take the breathalyzer test. The statute is not directed at a mere ... failure by the defendant to comply with the requirements of the breathalyzer test. The requirement that defendant's refusal be intentional grows out of the evidentiary theory underlying the statute. Evidence of a refusal is admissible on the theory that it evinces defendant's consciousness of guilt. Obviously, an unintentional failure to complete the test does not evidence consciousness of guilt ...," Peter Gerstenzang and Eric H. Sills, Handling the DWI Case in New York § 41:27 quoting People v. Davis , supra.
Finally, "to establish a refusal when a defendant has consented to a breath test but a sufficient sample has not been obtained, ‘the People must show that the failure to register a sample is the result of defendant's action and not of the machine's inability to register the sample,’ " People v. Vaughan , 38 Misc 3d 1206(A) quoting People v. Adler , 145 AD2d 943 (see also People v. Bombard , 143 AD3d 1257 ; People v. Bratcher , 165 AD2d 906 ; Johnson v. Adduci , 198 AD2d 352 ; Van Sickle v. Melton , 64 AD2d 846 ; People v. Phung , 51 Misc 3d 135(A) ; People v. Morel-Gomez , supra; People v. Davis , supra).
The Refusal Warnings Issued by P.O. Harrington Were Sufficient
Here, the IDTU video recording coupled with the testimony adduced at the hearing established by a preponderance of the evidence that after defendant initially refused three times by his words and conduct to take the breathlyzer test, Officer Harrington issued sufficient refusal warnings in clear and unequivocal language. Further, it is apparent that defendant understood them (see VTL § 1194(4)(f) ; People v. Cragg , 71 NY2d 926 ; People v. Cousar , 226 AD2d 740 ; People v. Bratcher , supra; People v. Morales, 57 Misc 3d 153(A) ; People v. Burnet , 24 Misc 3d 292 ).
Defendant was Given at Least Two Adequate Opportunities to Take the Breath Test
Here, the evidence presented at the hearing, particularly the IDTU recording, proves by a preponderance of the evidence that upon being read the refusal warnings, defendant was offered three opportunities to blow into the Intoxilyzer machine (see People v. Thomas , supra; People v. Rosado , supra).
The People Failed to Establish that Defendant Persistently Refused by his Intentional Conduct to Submit to the Breath Test
Although defendant ostensibly blew into the Intoxilyzer 9000 machine three times, in the "ordinary case where ... the [Intoxilyzer] machine [is] working properly and where the machine does not register a reading, the usual inference would be that defendant deliberately refused to breathe into the machine," People v. Morel-Gomez , supra (emphasis added). Here, however, the Court cannot reasonably draw the usual inference "that the failure [of the machine] to register a [breath] sample was the result of defendant's action and not of the machine's inability to register the sample," People v. Adler , supra (see also People v. Bombard , supra; People v. Bratcher , supra; Johnson v. Adduci , supra; Van Sickle v. Melton , supra; People v. Phung , supra; People v. Morel-Gomez , supra; People v. Davis , supra). Significantly, this is attributable to the People's failure to present any evidence at the hearing that the Intoxilyzer 9000 machine was in proper working order at the time it was used to test defendant's breath samples (see People v. Bombard , supra; People v. Bratcher , supra; Johnson v. Adduci , supra; People v. Adler , supra; Van Sickle v. Melton , supra; People v. Phung , supra; People v. Morel-Gomez , supra; People v. Davis , supra).
First, it is clear that the machine's functionality could not be established at the suppression hearing through P.O. Felipe's testimony since she candidly admitted that (1) she was never trained about the functioning of an Intoxilyzer machine; (2) she did not know how to operate an Intoxilyzer machine; (3) she did not test the Intoxilyzer 9000 machine on February 11, 2018 and (4) she did not know the last time the machine was calibrated prior to defendant's test.
Additionally, since the prosecution did not call the IDTU technician, P.O. Harrington, to the witness stand the Court must rely solely upon the IDTU recording to determine whether the Intoxilyzer 9000 was functioning properly at the time the breathlyzer test was administered to defendant. However, the IDTU video recording, standing alone, does not establish the operability of the machine. In this regard, based upon a careful examination of the video recording, although P.O. Harrington states that the simulator solution of the machine is "thirty-four (34) degrees Celsius," in the absence of any qualified testimony to explain its significance the Court is unable to determine whether the machine was properly calibrated at the time of defendant's test. Further, as indicated above, the prosecution did not introduce any other evidence that the Intoxilyzer machine was tested prior to defendant's breathlyzer exam. Additionally, the screen of the Intoxilyzer machine, which might have indicated if the machine was properly calibrated, is not visible in the video recording. Finally, although the Intoxilyzer emits a series of beeping noises throughout the entirety of the video recording, once again, without qualified testimony from a certified IDTU technician or other evidence to explain the meaning of those sounds, the Court is not in a position to decide whether the machine was functioning or malfunctioning.
Thus, inasmuch as the People failed to prove by a preponderance of the evidence that defendant deliberately and persistently refused by his conduct to submit to the breath test, his motion to suppress evidence relating to the chemical test is granted .
As such, the Court need not address defendant's additional underlying claim that P.O. Harrington did not provide him with adequate instructions regarding how to blow into the Intoxilyzer machine.
Order entered accordingly.
This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for defendant and the District attorney.