Opinion
No. 2010SU–017684.
2012-12-19
PEOPLE of the State of New York, v. Maegen R. McCANN, Defendant.
Michaelangelo Matera, Melville, for defendant. A.D.A. Amy Muller, District Attorney of the County of Suffolk, for for Thomas J. Spota, Central Islip, for the People.
Michaelangelo Matera, Melville, for defendant. A.D.A. Amy Muller, District Attorney of the County of Suffolk, for for Thomas J. Spota, Central Islip, for the People.
STEVEN A. LOTTO, J.
The defendant is charged with driving while intoxicated (V & TL § 1192(3)) and operating a motor vehicle while having in excess of .18 of one per centum of alcohol in her blood (V & TL § 1192(2–a)(a)). Dunaway/Mapp /probable cause and Huntley hearings were held to determine the admissibility at trial of evidence obtained from the defendant. Each side has submitted a memorandum of law and the Court has reviewed same.
Testifying at the hearing on behalf of the People was Suffolk County Police Officer Gary Osso. Officer Osso testified that on April 24, 2010 at approximately 2:22 AM he received a radio call of a motor vehicle accident on Cornell Court North in Smithtown, County of Suffolk, NY. He testified that he was some distance from that scene, but proceeded to respond. During the trip to the scene, Officer Osso observed a male at the corner of Cornell Drive and Jericho Turnpike, which is approximately a mile from the reported accident scene. The male was talking on a cell phone and had a pocketbook in his possession. After speaking with the male, Officer Osso determined that “he was involved with the vehicle” and the Officer transported him to the accident scene. At some point, the male stated to Officer Osso that he was in the subject vehicle and had gotten out to urinate, whereupon the passenger got into the driver's seat and drove off, leaving him at the intersection.
Upon arriving at the accident scene, Officer Osso observed a black Hyundai sedan with extensive damage that had “just collided into a parked vehicle on the east side of the court.” The officer further observed defendant Maegan McCann standing very close to that vehicle “yelling and screaming” and stating that her wrist hurt. Officer Osso stated that he did not recall any other civilians at the scene when he arrived. The officer testified that he spoke with the defendant to determine what had happened and noticed from a distance of approximately two feet away that her breath smelled of an alcoholic beverage, that her eyes were glassy and bloodshot and that she was unsteady on her feet. Officer Osso stated that, because the defendant was complaining of an injury, he placed her in his vehicle and at 2:55 AM transported her to St. Catherine's Hospital, which was approximately five minutes away. Officer Osso did not recall any specific conversation occurring in his vehicle during the transport. After the defendant was triaged at the hospital, at approximately 3:09 AM she made the statement, “I didn't mean to hit the person.” Officer Osso testified that he believed that the statement was made to him, but that it was not in response to a question. The defendant was placed under arrest at the hospital at 3:13 AM. The defendant was read the chemical test refusal warnings and consented to a chemical test at 3:23 AM, writing the word “consent” and affixing her signature on the Alcohol/Drug Influence Report [hereinafter “AIR”]. Blood was drawn at the hospital by a physician's assistant at 4:02 AM, the results of which were a .24 BAC. Officer Osso testified that at 4:11 AM he read the defendant her Miranda rights off the second page of the AIR “exactly how it is written” and that he also read her the waiver of rights questions, with the defendant responding that she understood same and that she wished to talk with the officer. Officer Osso stated that he then completed the bottom portion of the AIR with the defendant's responses to his questions.
At this point in the hearing, the People stated that they had no further questions of Officer Osso and the Court took a brief recess. When the hearing reconvened, the People sought to ask the witness further questions regarding specifically how the Miranda rights were read to the defendant, which request was opposed by the defense. Following argument, this Court granted the People's request, subject to further consideration and post-hearing memoranda of law. Officer Osso retook the stand and was asked to read the Miranda warnings and waiver questions in the same way that he did on the night in question. The officer did so by reading from page two of the AIR, which had previously been admitted into evidence. He testified that the defendant never indicated that she didn't understand the rights or asked the officer to slow down or repeat them and that the defendant signed the bottom portion of the AIR following the questioning recorded therein. On cross-examination Officer Osso testified, inter alia, that when he arrived at the accident scene, Police Officer Althouse was already at the scene and told him that “he found her slipper or sandal under the pedal, the accelerator pedal of the vehicle.”
Pursuant to the provisions of CPL 140.10(1)(b), a police officer may arrest a person without a warrant for “[a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” The Criminal Procedure Law provides that “ [r]easonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” (CPL 70.10(2)). It is the opinion of this Court that Officer Osso did possess probable cause to arrest the defendant. The Court finds that the facts known to Officer Osso at the time of arrest—his observations regarding the defendant's physical condition and indicia of intoxication, the position and condition of the vehicle, the fact that the defendant was the only civilian present at the scene, standing very close to the vehicle in question and the information provided by Officer Althouse-were collectively of such weight to render it reasonably likely that the defendant had committed the offense of driving while intoxicated. Although the defendant raised an issue as to the element of operation, it must be noted that the proof required to establish probable cause to justify an arrest is not that which is required for conviction ( see People v. Miner, 42 N.Y.2d 937 [1977] ) and that the test for probable cause does not require “certitude” that a crime was committed by the person arrested ( see Veras v. Truth Verification Corp., 87 A.D.2d 381 [1st Dept 1982], affd 57 N.Y.2d 947 [1982];People v. Cunningham, 71 A.D.2d 559 [1st Dept 1979], affd 52 N.Y.2d 927 [1981] ). The Court of Appeals has provided a probable cause standard in alcohol-related driving offenses as one in which, when “viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor” (People v. Farrell, 89 A.D.2d 987 [2nd Dept 1982] ), requiring “merely information sufficient to support a reasonable belief that an offense has been or is being committed” (People v. Bigelow, 66 N.Y.2d 417 [1985] ). A determination as to probable cause is to be made only after a consideration of all facts and circumstances and, even though when “[v]iewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found.” ( People v. Bigelow, supra ). Furthermore, it has been held that the element of operation may be proven by circumstantial evidence and that there is no absolute requirement that there be direct eyewitness testimony as to the defendant's operation of the vehicle. ( See People v. Booden, 69 N.Y.2d 185 [1987] ). The facts and circumstances of the case at bar permitted the arresting officer to make a reasonable inference that the defendant had recently moved the vehicle in an intoxicated condition; namely, “that it had been driven by the intoxicated defendant before it came to rest” where the vehicle was found. ( See People v. Saplin, 122 A.D.2d 498 [3rd Dept 1986], lv app den 68 N.Y.2d 817 [1986];People v. Kahn, 182 Misc.2d 83 [App Term, 2nd Dept, 2nd & 11th Jud Dists] 1997).
With regard to the defendant's statements, the Court notes that the defendant challenges the introduction of the statement “I didn't mean to hit the person”, as well as her responses set forth on the lower portion of the AIR. The People's CPL 710.30 notice references the initial statement in detail and also states “See handwritten entries on the attached Alcohol/Drug Influence Report.” The defendant argues that the AIR was not attached to the notice and that such omission renders all responses thereon subject to preclusion. The People aver that the CPL 710.30 notice served at arraignment did in fact include the two-page AIR. It is the opinion of this Court that the defendant's argument is inapposite, as it has been held in a similar case that, “the CPL 710.30 notice should have alerted defense counsel that the attachment was missing, in which case it was incumbent on him to inform the People or the court about the missing statement and request that it be supplied.” ( See People v. Manzi, 162 A.D.2d 955 [4th Dept 1990], lv app den 76 N.Y.2d 894;cf. People v. Kelly, 200 A.D.2d 440 [1st Dept 1994] [“If a copy of the defendant's written statement was not attached to the voluntary disclosure form served at arraignment, it was incumbent on defendant to bring that fact to the People's attention”; held that the People did not fail to comply with CPL 710.30 notice requirements], lv app den 83 N.Y.2d 854). Furthermore, the defendant had the opportunity to litigate the admissibility of the AIR statements at the Huntley hearing and thus CPL 710.30 preclusion is not warranted. ( See People v. Tuthill, 24 Misc.3d 46 [App Term 2nd Dept, 9th & 10th Jud Dists 2009]; see also People v. Schnugg, 257 A.D.2d 669 [2nd Dept 1999] ).
The defendant's motion to suppress her statements is denied. It is the opinion of the Court that the People have met their burden of demonstrating that the statements sought to be introduced were voluntary beyond a reasonable doubt; namely, by establishing the legality of police conduct and the defendant's waiver of rights. The burden at a suppression hearing then shifts to the defendant. ( See People v. Guillery, 267 A.D.2d 781 [3rd Dept 1999], lv app den 94 N.Y.2d 920 [2000] ). A determination as to the voluntariness of a defendant's statement depends upon the totality of the circumstances. ( See People v. Richard Anderson, 42 N.Y.2d 35 [1977] ). With regard to the defendant's alleged statement “I didn't mean to hit the person”, the Court finds that the officer's testimony was credible, that the statement in question was spontaneous “and not as the result of inducement, provocation, encouragement or acquiescence” and that, although Officer Osso did concede that the defendant “may not have been free to leave” while at the accident scene, the testimony fails to show that the police conduct could “reasonably have been anticipated to evoke a declaration from the defendant' “, and thus the defendant's statement was not the product of custodial interrogation. ( See People v. James Anderson, 94 AD3d 1010 [2nd Dept 2012] [citations omitted]; see also People v. Vigil, 31 AD3d 794 [2nd Dept 2006] [statement was voluntary if “spontaneous and not made in response to express questioning or the functional equivalent thereof”], lv app den 7 NY3d 852 [2006] ).
With regard to the defendant's responses reflected on the lower portion of the AIR, the Court finds that the defendant had been properly Mirandized and voluntarily waived her rights before providing those statements. The Court finds that the testimony of Officer Osso regarding the manner in which specific Miranda warnings were read to the defendant was properly considered in making such determination, even though it was elicited subsequent to the People's original questioning. It has been held that “the common-law power of the trial court to alter the order of proof in its discretion and in furtherance of justice' remains at least up to the time the case is submitted to the jury.” ( See People v. Whipple, 97 N.Y.2d 1 [2001], citing People v. Olsen, 34 N.Y.2d 349 [1974] ). The Court of Appeals held in Whipple that, even in a circumstance in which both sides have rested at trial, “where the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense, a court may, in its discretion, grant a motion to reopen.” In the case at bar, the People had already elicited some testimony that Officer Osso read Miranda warnings to the defendant. It is the opinion of this Court that the request to present brief additional testimony regarding the specific language of the warnings was occasioned by mere oversight and “did not constitute an attempt ... to gain an improper tactical advantage.” ( See People v. Murray, 165 A.D.2d 690 [1st Dept 1990], lv app den 77 N.Y.2d 880 [1991] ). Additionally, in an analogous case in which the testifying officer at a suppression hearing referred to Miranda warnings without having with him a copy of the form from which he read said warnings, the Court of Appeals in People v. Gonzalez (55 N.Y.2d 720 [1981], cert den 456 U.S. 1010 [1982] ) concluded that, “[i]n the absence of any proof whatsoever that such reading was or might have been deficient in some particular, the suppression court was warranted in drawing the inference that the constitutional preinterrogation warnings were adequately stated.”
Accordingly, after hearing and evaluating all of the testimony presented herein, this Court finds that probable cause existed for the defendant's arrest and the defendant's motion to suppress evidence obtained as a result of same is denied. The defendant's motions to suppress or preclude her statements are also denied.