Opinion
Ind. No. 807/2020
08-08-2022
The People of the State of New York v. Victor Mitchell, Defendant.
For the People: Melinda Katz, District Attorney, Queens County (Gabriel Reale, Esq., Of Counsel) For the Defendant: Garnett Sullivan, Esq.
Unpublished Opinion
For the People:
Melinda Katz, District Attorney, Queens County
(Gabriel Reale, Esq., Of Counsel)
For the Defendant:
Garnett Sullivan, Esq.
HON. CASSANDRA M. MULLEN, J.S.C.
A Huntley and voluntariness of submission to chemical testing hearing was conducted before this Court on May 9, 2022 and June 6, 2022. The People called four witnesses at the hearing: Police Officer Desmond Grant, Police Officer Michael Fitzgibbon, Detective Daniel Colon, and Sergeant Ernest Coakley. The Court credits each of their testimony. This decision summarizes the testimony below, as the Court's findings of fact, and constitutes the Court's conclusions of law.
Findings of Fact
On August 16, 2020, at approximately 7:00 a.m., Police Officer Desmond Grant received a radio call indicating that a car had crashed into a pole at the intersection of Seagirt Boulevard and Beach 19th Street in Far Rockaway. It was reported that the driver might have been intoxicated and that a child was injured.
When Officer Grant arrived at the scene, he observed that a car had crashed into a light pole and was damaged only in the front. He saw a child laying on the ground next to the car being treated by EMS. Officer Grant also saw defendant in the front passenger seat of the car crying and saying: "that's my only son, that's my son." When Officer Grant asked defendant what happened, defendant initially replied that he had fallen asleep but later stated that someone had cut him off. Officer Grant did not observe any signs that defendant was intoxicated. At no point was defendant placed in handcuffs or told he was not free to leave. Officer Grant then heard defendant, who was on the phone with someone, state "my wife is going to kill me." Defendant was later picked up from the scene by two family members and taken to Long Island Jewish Medical Center ("LIJ") for treatment.
That same day, Police Officer Michael Fitzgibbon was asked to conduct sobriety testing on defendant at LIJ. As a member of the NYPD Collision Technician Group, Officer Fitzgibbon's duties included conducting field sobriety testing for motorists involved in serious vehicle collisions. He also received extensive training in the field of drug recognition. When Officer Fitzgibbon located defendant at the hospital, defendant was dressed in a gown, lying down on a hospital bed, and hooked up to a medical device. Officer Fitzgibbon, who was in uniform, identified himself and informed defendant that he would be conducting field sobriety testing. Defendant sat up immediately and did not appear to be in any pain despite reports that he had a broken rib. Officer Fitzgibbon described defendant as polite and easy-going. Although he did not smell of alcohol or have slurred speech, Officer Fitzgibbon noted that defendant's eyes were watery and bloodshot.
Officer Fitzgibbon read a consent form to defendant and informed him that he had the right to refuse testing. Defendant consented to the testing and signed the form. As Officer Fitzgibbon attempted to administer the tests, defendant, without being asked any questions, started talking about the car accident, stating that he was "cut off" and "hit a pole." Officer Fitzgibbon never asked defendant any questions about the accident and told defendant not to talk about the accident.
Officer Fitzgibbon administered several sobriety tests to defendant, including the horizontal gaze nystagmus and lack of convergence tests, the Drager drug test, and a preliminary breath test. Officer Fitzgibbon explained the directions for each test to defendant and defendant said that he understood. Nobody else was present in the room for the tests. According to Officer Fitzgibbon, the horizontal gaze nystagmus and lack of convergence tests showed that defendant was impaired by alcohol or possibly cannabis. The Drager drug test, which is a self-calibrating device, indicated that defendant was positive for THC, a metabolite of cannabis. Finally, the preliminary breath test showed that defendant had a blood alcohol content of 0.118.
Sergeant Ernest Coakley, a member of the NYPD Highway Collision Investigation Squad, met with defendant at approximately 11:15 a.m. on August 16, 2020. Sergeant Coakley was accompanied by two other police officers and spoke with Officer Fitzgibbon prior to speaking to defendant. Defendant was lying on a hospital bed in a separate area of the emergency room when Sergeant Coakley arrived. Sergeant Coakley did not arrest defendant or place him in handcuffs at any time. In addition, he did not detect any odor of alcohol or marijuana on defendant. Sergeant Coakley read Miranda warnings to defendant from a form before asking him any questions. Defendant stated that he understood his rights and signed the form. Sergeant Coakley then proceeded to question defendant and wrote down his answers "word for word."
Defendant told Sergeant Coakley that he and his son had driven from Albany to White Plains the previous day for a family reunion. They stayed there from 3:00 p.m. until approximately 9:00 p.m. Defendant said that he drank three cans of beer during that time. Defendant then drove to his brother's home in Yonkers where he slept for two and a half hours. At approximately 4:30 a.m., Defendant decided to drive to his sister-in-law's house in Far Rockaway to pick up clothing. About two and a half hours later, near the intersection of Seagirt Boulevard and Beach 19th Street in Far Rockaway, defendant claimed that a black Lexus struck his car as he was driving, causing him to crash into a light pole. Defendant stated that he saw smoke coming from the vehicle and he went to check on his son who was seated in the rear of the car. He later called his sister-in-law and her husband, and they drove him to the hospital.
On August 17, 2020, Detective Daniel Colon, a detective investigator with the Queens County District Attorney's office, met with Ms. Colon, the mother of the child injured in the car accident outside the hospital. Detective Colon escorted Ms. Colon, who appeared very upset, outside of the hospital and remained with her when she approached defendant in front of the building. Detective Colon introduced himself to defendant, but did not ask defendant any questions or request that Ms. Colon ask him any questions. Ms. Colon asked defendant why he had lied to her about the child being "okay." Defendant responded: "I lied because the baby wasn't responsive." Defendant than told Detective Colon: "I was not drunk, I was drinking but I wasn't drunk, and I left in the morning because I don't like driving at night." He stated that he had been at a family reunion the night before and had been drinking beer. Defendant claimed that he crashed into the pole because he was struck by a vehicle and tried not to hit a child in the crosswalk. At no point during the conversation did Detective Colon place defendant in handcuffs or tell him he could not leave.
Conclusions of Law
A. Suppression of Statements
When a defendant is the subject of a custodial interrogation by the police, it is beyond well-settled that the police must administer Miranda warnings to the defendant. People v Paulman, 5 N.Y.3d 122 [2005]; see also Miranda v Arizona, 384 U.S. 436 [1966]. However, Miranda warnings are not required unless both the elements of "police custody" and "interrogation" are present. People v Nikac, 201 A.D.3d 955, 956 [2d Dept 2022].
Whether a defendant is in police custody is "a question of fact that does not turn on the subjective intent of the police" (id.) or the "subjective beliefs of the defendant." People v Yukl, 25 N.Y.2d 585, 589 [1969]. Rather, the court should consider the "totality of the circumstances" (People v Brown, 295 A.D.2d 442, 443 [2d Dept 2002]) in determining "whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave." Nikac, 201 A.D.3d at 956. Factors to be weighed include:
the amount of time which the defendant spent with the police, the manner, if any, in which his or her freedom was restricted, the location and atmosphere of his or her questioning, the degree of cooperation which he or she exhibited, whether he or she was apprised of his or her constitutional rights, and whether the questioning was investigatory or accusatory in nature. Id.
A defendant is not deemed to be in police custody simply because the police question him at the hospital where he is receiving treatment. People v Allen, 183 A.D.3d 1284, 1285 [4th Dept 2020], aff'd 36 N.Y.3d 1033 [2021]; People v Drouin, 115 A.D.3d 1153 [4th Dept 2014], lv denied 23 N.Y.3d 1019 [2014]; People v Borukhova, 89 A.D.3d 194 [2d Dept 2011]; People v Bowen, 229 A.D.2d 954, 955 [4th Dept 1996] [finding defendant was not in custody even though he was "confined to a hospital bed" while police asked questions]; People v Ripic, 182 A.D.2d 226, 235 [3d Dept 1992] [finding defendant was not in custody even though he was "restrained by medical devices for medical purposes" while police asked questions].
"Interrogation" includes not only actual questioning of the defendant, but also "any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect." People v Reardon, 124 A.D.3d 681, 683 [2d Dept 2015]; People v Hylton, 198 A.D.2d 301, 301 [2d Dept 1993]. Thus, police conduct that "could not reasonably have been anticipated to evoke a declaration from the defendant" does not constitute custodial interrogation. People v Anderson, 94 A.D.3d 1010, 1012 [2d Dept 2012]; see also People v Lynes, 49 N.Y.2d 286, 295 [1980]; People v Hylton, 198 A.D.2d 301, 301 [2d Dept 1993]. The Appellate Division has frequently found that investigative inquiries do not rise to the level of custodial interrogation. People v Gough, 203 A.D.3d 747 [2d Dept 2022]; People v Bongiorno, 243 A.D.2d 719, 719-20 [2d Dept 1997]; People v Ortega, 256 A.D.2d 360, 360-61 [2d Dept 1998]; People v Stackhouse, 160 A.D.2d 822, 823 [2d Dept 1990].
Statements by a defendant that are "spontaneous and not the product of custodial interrogation or its functional equivalent" are admissible despite the lack of Miranda warnings. People v Roper, 208 A.D.2d 571, 571 [2d Dept 1994]; People v Latimer, 75 A.D.3d 562, 563 [2d Dept 2010]; People v Tyrell, 67 A.D.3d 827, 828 [2d Dept 2009] ["Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and not the result of inducement, provocation, encouragement or acquiescence"]; People v Hinds, 13 A.D.3d 554, 554 [2d Dept 2004]. A defendant's spontaneous statements are likewise admissible even if the defendant is intoxicated, provided that such intoxication does not rise to the "degree of mania" or render the defendant "unable to understand the meaning of his statements." People v Schompert, 19 N.Y.2d 300, 305 [1967]; People v Raffaele, 41 A.D.3d 869, 869 [2d Dept 2007]; People v Gadson, 239 A.D.2d 924, 924 [4th Dept 1997]; People v Morales, 228 A.D.2d 525 [2d Dept 1996].
1. Statements Made at the Scene of the Accident
The statements made by defendant at the scene of the accident are admissible as spontaneous statements. Defendant was not in custody and some of the statements he made were not the result of any questioning by the police. See People v Murphy, 163 A.D.2d 425 [2d Dept 1990]. To the extent that Officer Grant asked defendant about what had happened, such questions were investigative inquiries "elicited in the course of an accident investigation" (People v Atwood, 2 A.D.3d 1331, 1331-32 [4th Dept 2003]) rather than "accusatory." People v Parulski, 277 A.D.2d 907, 908 [4th Dept 2000]. Even though defendant was upset, he was "coherent and not seriously injured and. should have expected that [he] would be questioned as part of a police investigation." Bongiorno, 243 A.D.2d at 719-720. Finally, it should be noted that defendant was permitted to leave the scene in a private car. Based on all the circumstances, "a reasonable person, innocent of any crime, would not have believed that he was in police custody" at that time. People v Ragen, 140 A.D.3d 1092, 1092 [2d Dept 2016]. Accordingly, defendant's statements at the scene of the crash are not subject to suppression.
2. Statements Made to Officer Fitzgibbon
The statements made by defendant to Officer Fitzgibbon are admissible because defendant was neither interrogated nor in police custody. Defendant made the statements even though Officer Fitzgibbon did not ask him any questions about the accident and even told him to stop talking about the accident. For this reason, it cannot be said that Officer Fitzgibbon's conduct was in any way "designed to elicit a statement from [defendant]." Hylton, 198 A.D.2d at 301. Rather, defendant's statements were the result of "genuine spontaneity." Anderson, 94 A.D.3d at 1011. In addition, although defendant was in a hospital bed and connected to a medical device, there was no testimony that he was handcuffed, pressured to meet with Officer Fitzgibbon, or unable to leave the room. See Allen, 183 A.D.3d 1284-1285; Ragen, 140 A.D.3d at 1092. For these reasons, the statements made to Officer Fitzgibbon are not subject to suppression.
3. Statements Made to Officer Coakley
Defendant's statements to Sergeant Coakley are not subject to suppression, as defendant was not in custody and, even if he were, he voluntarily waived his Miranda rights. Although defendant was in a hospital bed when Sergeant Coakley asked him questions, there was no evidence adduced at the hearing that defendant was physically restrained or that he felt unable to leave. Allen, 183 A.D.3d at 1284; Bowen, 229 A.D.2d at 955. In addition, defendant was cooperative with the interview and the questions asked were mainly investigatory in nature. Nikac, 201 A.D.3d at 956. Even though three police officers were present for the questioning, that fact alone, without some showing of "a coercive or police-dominated atmosphere" (People v Clarke, 157 A.D.3d 616, 616 [1st Dept 2018]), fails to establish that defendant was in custody. Under all the circumstances, it cannot be said that a reasonable person in defendant's position would have felt unable to leave.
Even assuming that defendant was in custody, Sergeant Coakley read Miranda warnings to defendant prior to questioning him and the People have established, beyond a reasonable doubt, that defendant voluntarily waived those rights. See People v Smith, 199 A.D.3d 1023 [2d Dept 2021]. Sergeant Coakley read the Miranda warnings to defendant and defendant responded after each warning that he understood. None of the police officers, directly or indirectly, pressured defendant at all, let alone to the point of his will being overborne (People v Justiniano, 186 A.D.3d 1257 [2d Dept 2020], lv denied 35 N.Y.3d 1113 [2020]), to waive his Miranda rights or to answer questions. In addition, defendant did not appear visibly upset or intoxicated to the point that he would not understand the nature of his waiver. Raffaele, 41 A.D.3d at 869. Considering the "age, physical state, and mental state of the defendant" (People v Williams, 205 A.D.3d 937 [2d Dept 2022]), the Court finds that defendant voluntarily waived his Miranda rights.
4. Statements Made to Detective Colon
Defendant's statements made in the presence of Detective Colon are also admissible. First, the statements that defendant made to Detective Colon are not subject to suppression because they were spontaneous and not elicited in any way by Detective Colon. Hylton, 198 A.D.2d at 301. Simply introducing himself and being present for the conversation between defendant and Ms. Colon was not "reasonably likely to evoke an incriminating response." Id. In addition, the statements overheard by Detective Colon are not subject to suppression because they were not the "product of police activity" (People v Giddens, 161 A.D.3d 1191, 1193 [2d Dept 2018]) or "attributable to police suggestion, prompting, or other misconduct." People v Eldridge, 213 A.D.2d 667, 668 [2d Dept 1995] [suppression not required when police officer overheard defendant speaking on the telephone]; see also People v Cooper, 38 A.D.3d 678 [2d Dept 2007] [suppression not required when police overheard defendant's statement to nurse]; People v Bingham, 176 A.D.2d 740 [2d Dept 1991] [suppression not required when police overheard defendant's conversation with a companion]; Murphy, 163 A.D.2d at 425 ["Communications made in the presence of third parties which are not the product of police activity are not subject to suppression"]. Accordingly, the Court declines to suppress the statements made in the presence of Detective Colon.
B. Voluntariness of Defendant's Submission to Chemical Testing
A defendant may consent to chemical testing so long as such consent is voluntary and free from coercion. People v Gonzalez, 39 N.Y.2d 122, 128 [1976]; People v Dail, 69 A.D.3d 873 [2d Dept 2010]. Even where a defendant is injured and hospitalized, consent is considered voluntary so long as, under the totality of the circumstances (People v Kluge, 180 A.D.3d 705, 708 [2d Dept 2020), the defendant is "conscious, coherent, and capable of exercising his rights." People v Mojica, 62 A.D.3d 100, 114 [2d Dept 2009]; People v Gore, 117 A.D.3d 845, 846 [2d Dept 2014]; Bongiorno, 243 A.D.2d at 719-720; see also Gonzalez, 39 N.Y.2d at 128-129.
Here, defendant freely agreed to submit to chemical testing (specifically the Drager drug test and the breath test). Officer Fitzgibbon, prior to conducting such testing, read a consent form to defendant, and advised him of his right to refuse such testing. Defendant was polite and, far from objecting to Officer Fitzgibbon's presence in the room, appeared eager to speak to him. There is no evidence in the record that defendant was pressured into agreeing to the tests (People v Osburn, 155 A.D.2d 926, 927 [4th Dept 1989]) or that he was so intoxicated that he was unable to understand the nature of his consent. See Morales, 228 A.D.2d at 525; Bowen, 229 A.D.2d at 955. For these reasons, the Court finds that the People have established that defendant's consent was voluntary.
To the extent that defendant contends that his consent to the chemical testing, as well as the blood testing (which was not within the scope of the hearing granted in the omnibus decision), was invalid under Vehicle and Traffic Law ("VTL") §1194[4][a][1], those arguments are without merit. Notwithstanding that VTL §1194[4][a][1] only applies to the withdrawal of blood "[a]t the request of a police officer," the Court of Appeals has held that the results of a chemical test are "admissible absent compliance with section 1194 where a defendant has voluntarily consented to the test" because that section has "no application where the defendant expressly and voluntarily consented to a chemical test." People v Odum, 31 N.Y.3d 344, 346 [2018]; People v Atkins, 85 N.Y.2d 1007 [1995]; People v Marietta, 61 A.D.3d 997 [2d Dept 2009]; People v Casimiro, 308 A.D.2d 456 [2d Dept 2003]. As detailed above, the Court has found that defendant voluntarily consented to the chemical testing. Defendant's other argument, that the results of the blood test are subject to suppression under VTL §1194[4][a][1], must also be dismissed. Defendant does not dispute that the police obtained a valid search warrant to obtain a blood sample from him and, indeed, he has not filed any motion to controvert that warrant. It is well settled that, where a defendant is indicted for violations of the Penal Law and the Vehicle and Traffic Law, "a blood sample may be obtained pursuant to a validly issued search warrant without resort to" the strictures of VTL §1194. People v Reynolds, 203 A.D.3d 1079 [2d Dept 2022], lv denied 38 N.Y.3d 1074 [2022]; see also People v Casadei, 66 N.Y.2d 846, 848 [1985]; People v Drayton, 56 A.D.3d 1278, 1278 [4th Dept 2008]. In the indictment, defendant is charged with multiple Penal Law offenses (including Aggravated Vehicular Homicide) in addition to the Vehicle and Traffic Law counts. For these reasons, the results of the chemical and blood testing are not subject to suppression.
Based upon the foregoing, defendant's motions to suppress the statements and challenge the voluntariness of his submission to chemical testing are denied.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for defendant and to the District Attorney.