Opinion
No. 13050161.
01-05-2015
PEOPLE of the State of New York v. Bryan K. AMOS, Defendant.
Roman A. Misula, Esq., Assistant District Attorney Michael D. Flowerday, Esq., of Counsel to Stephen M. Leonardo, Esq., Attorney for Defendant.
Roman A. Misula, Esq., Assistant District Attorney Michael D. Flowerday, Esq., of Counsel to Stephen M. Leonardo, Esq., Attorney for Defendant.
History of the Case
Thomas J. DiSalvo, J. The defendant was charged with common law driving while intoxicated, VTL § 1192(3), aggravated driving while intoxicated, VTL 1192(2–a)(a), leaving the scene of a personal injury accident, VTL 600(2)(a), leaving the scene of a property damage accident, VTL § 600(1)(a), failure to keep right, VTL § 1120(a), and following too closely, VTL § 1129(a). Subsequently, a Prosecutor's information, dated September 3, 2013, was filed with the court, charging the defendant with aggravated driving while intoxicated, VTL § 1192(2–a)(a) and operating a motor vehicle while impaired by the combined influence of drugs and alcohol, VTL § 1192(4–a). Said prosecutor's information alleges a blood alcohol count, of .33% and the presence of the drug of diazepam in the defendant's blood, based on a toxicology report. Probable cause, Huntley and Payton hearings were conducted on August 15, 2014 and were continued on September 26, 2014. The People presented Officer Douglas Rose, Officer Bryan Cayward, Sergeant Carl Adriaansen and Registered Nurse Lynette Engright to testify at the hearings. The defense presented one witness, Ruby Grace Gropp.
Findings of Fact
The People's first witness was Officer Douglas Rose of the Webster Police Department. He testified to receiving a dispatch at approximately 1:44 P.M. regarding an accident at 150–160 East Main Street in the Village of Webster. When he arrived at the scene he observed a vehicle heading westbound with rear end damage and automobile parts in the roadway. The driver of said vehicle advised the officer that he was hit from behind by a black vehicle license plate number AYK 5718, that then drove away from the scene. The driver complained of back pain but refused any medical attention. Upon obtaining the address of the registered owner he drove to 1110 Rousseau Drive in the Town of Webster, where he found a 2013 black Nissan license plate number AYK 5718 with extensive front end damage. He testified that while at 1110 Rouseau Drive nobody entered said apartment. He also stated that he briefly spoke to the defendant at the Rochester General Hospital Emergency Room.
The next witness was Officer Bryan Cayward of the Webster Police Department. He testified that on May 13, 2013 at approximately 1:34 P.M. He was dispatched to an alleged hit an run accident on West Main Street in the Village of Webster. He was advised that the vehicle in question was a black Nissan with license plate AYK 5718. Reportedly, the vehicle was headed westbound out of the Village and into the Town of Webster on Ridge Road. The officer was advised that the vehicle was registered to a Ruby G. Gropp of 1110 Rousseau Drive, Webster New York. Officer Cayward never arrived at the scene of that accident. While on the way to the scene of that accident he came upon the intersection of Ridge Road and Webster Commons Boulevard. At that location the officer observed what appeared to him as the remnants of another motor vehicle accident. He was advised at the scene by various individuals that the suspect vehicle turned onto Webster Commons Boulevard. Individuals at the scene provided him with the license plate number of the car involved in that incident, which was AYK 5718. Armed with the license plate number the officer was able to determine that the car was registered to an owner located at 1110 Rousseau Drive, Webster New York. Whereupon he proceeded to that address. The officer then located the said unoccupied vehicle parked in in front of the said residence. Officer Cayward observed damage to the front of said car, which indicated to him the vehicle had been in an accident. The officer knocked on the locked door of 1110 Rousseau Drive but no one answered. By this time other Webster Police Officers arrived at the scene. Officer Cayward obtained the cell phone number of Ruby G. Gropp, the owner of the vehicle from Lt Rieger of the Webster Police. He then phoned that individual who was at work at a car dealership in the Town of Webster. The officer informed Ms. Gropp that her vehicle was in a motor vehicle accident and that it was parked outside her apartment. He was advised by Ms. Gropp that the defendant was driving her vehicle. Officer Cayward testified that in answer to a question Ms. Gropp told the officer that the defendant was a diabetic. The officer then testified that he asked Ms. Groop if it was possible that Mr. Amos needed medical assistance. She reportedly responded “maybe”. He then testified to asking if the defendant had a drinking problem. To that question the officer stated that Ms. Gropp said “no”. He indicated that Ms. Gropp advised him that 1110 Rousseau Drive was her apartment, but that the Bryan Amos lived there as well. The officer requested that Ms. Groop leave work and come to her apartment. She agreed to do so and arrived at about 2:46 P.M. Officer Cayward testified that he asked if he would be able to accompany her into the residence. To which she allegedly agreed both over the phone and upon arriving at her apartment. Upon arriving Ms. Gropp opened the garage door with her automatic door opener. She then used her key to open the door leading from the garage into her apartment. She was followed into the residence by Officer Cayward, Officer Sotir, Sargent Adriaansen and the emergency medical personnel who had been summoned to the scene. The defendant was located asleep and snoring in one of the bedrooms. The officers and medical personnel woke up the defendant and began to question him. But the defendant could not be understood by Officer Cayward. He was asked to get out of bed, which he did. However, in so doing the defendant appeared to sway and stagger. Officer Cayward described him as having blood shot watery eyes and emitting a strong odor of alcoholic beverage. He then fell over hitting his head on the night stand causing a three to four inch laceration to the back of his head. The defendant was eventually transported Rochester General Hospital by ambulance for treatment. At the hospital the defendant reportedly told Officer Cayward that “I was drinking and driving”. Officer Cayward further testified that the defendant admitted to have been drinking straight vodka. The officer asked the defendant if he had been in a motor vehicle accident to which the defendant admitted to hitting one car and that he left the scene because he had been drinking and driving. Upon further questioning the defendant advised the officer that he was a diabetic, but did not take insulin. Instead he took “one pill per day”. He also told the officer that he took Valium. The officer stated that at 15:41 hours he arrested the defendant for driving while intoxicated. When asked by the assistant district attorney if the defendant consented to a blood draw, the officer stated “implied consent”. The defendant asked the officer what was next. The officer advised the defendant that a blood test was next. The officer testified that the defendant did not object to that blood draw. Upon cross examination Officer Cayward said he did not specifically ask the defendant to consent to a blood draw, but that the defendant just responded “okay” upon being advised that the blood draw was in fact next. Defense counsel asked the officer what he saw at 1110 Rousseau Drive. Officer Cayward said he found a 2013 Nissan Ultima with license plate number NYK 5718, which matched the vehicle for which he was looking. He testified to telling Ms. Gropp that it may be necessary to force the door to the apartment if she did not return to the apartment. However Ms. Gropp arrived at the apartment within twenty to twenty-five minutes. She reportedly said nothing upon arriving but simply opened the garage door and the door to the apartment, whereupon the officers and emergency medical personnel followed her into her residence.
The next witness was Lynnette Enright, R.N. who was responsible for taking a blood draw from the defendant in the Rochester General Hospital Emergency Room. The nurse testified to having a conversation with the defendant. He told her that he had been under a great deal of stress as the result of a divorce. He told her he had been drinking all day. Ms. Enright told the defendant that the doctors would be suturing his head laceration. She also told the defendant that she was going to take two blood draws from him, to wit: one for the police and one for Rochester General Hospital. Nurse Enright further advised the defendant that he could not be released from the hospital until his blood alcohol level was below .08% and that he would be getting breath tests until that blood alcohol level was reached. There was no indication that the defendant did not understand what she told him. The nurse did take the two blood draws as described. However, before obtaining those draws the defendant signed a hospital consent form, which was also signed by the nurse and Officer Cayward. That consent form was entered into evidence as People's Exhibit 4. Prior to his signing the consent form she told the defendant that the purpose of the first blood draw was for the police to determine the level of alcohol in his system. She testified the defendant understood the purpose of the said legal blood draw. On cross examination the nurse advised defense counsel that she had been told that the defendant had been mental hygiene arrested for telling the officers that he did not want to live.
The last witness to testify for the People was Sargent Carl Adriaasen of the Webster Police Department.He responded to 1110 Rousseau Drive, where Officer Cayward was already located, to deal with the motor vehicle accident in the Village of Webster. When he arrived he observed a black Nissan Sedan on the north side of Rousseau Drive with significant damage to the front end of said vehicle. He further observed the arrival of the emergency medical personnel at the Rousseau Drive address. He did not speak to owner of vehicle or the or the resident of the apartment. He was advised by Officer Cayward of his conversation with Ruby Gropp. He testified that no warrant was needed because he was advised that consent to enter the premises was given by Ruby Gropp to Officer Cayward. He further testified that he was under the impression that there was a medical emergency at hand and that he had no reason to suspect there was any other issue. Sargent Adriaansen followed Ms. Gropp into the residence. He testified to not using any force to enter the apartment and that he was never asked to leave. Once in the apartment he observed the defendant asleep in one of the bedrooms. He also was present when the defendant fell over onto the night stand that caused the laceration on the back of defendant's head. On cross-examination he indicated that he never heard Ruby Gropp give anyone permission to enter her apartment. He also indicated that it was he who called for emergency medical personnel to come to 1110 Rousseau Drive, because of his belief that diabetic medical issues were involved.
The defense produced one witness, to wit: Ruby Grace Gropp. Ms. Gropp testified that she lived at 1110 Rousseau Drive since April of 2011. She said that on May 13, 2013 she was called at her place of employment at Vision Nissan in the Town of Webster by the Webster Police. They advised her that her vehicle was involved in an accident. She indicated that at that time the defendant was her boyfriend, that he resided with her and that he was driving her vehicle. She testified that the phone conversation with the officer lasted about thirty seconds. She answered “No” to whether she was asked if the defendant was a diabetic; to whether he had any disabilities or heart issues; to whether he was overweight; to whether he had a drinking problem; to whether he was epileptic. Finally in response to whether she had given anyone consent to enter her apartment, she stated “No”. She stated that she was advised by the officer on the phone that if she did not come to the apartment and open it up or the police would open it themselves. She stated that it took her about five minutes to arrive at her apartment. That on the way she observed what seemed to be her car being towed away. When she arrived she opened the overhead garage door. She then proceeded to open the door leading to the apartment and went in. She was followed by the police and the paramedics. Again, she testified that she did not give permission to anyone to enter her apartment. In fact she said she spoke to no one when she arrived, but proceed directly into her apartment. Upon entering her residence she had no idea if the defendant was actually there. Nevertheless, she found the door to the master bedroom closed. At that point she opened the door and observed the defendant asleep on the bed. On cross-examination, she testified that she was asked by the paramedics if the defendant was diabetic at the time they entered the bedroom. Finally she indicated that she was no longer romantically involved with Brian Amos.
Issues Presented.
Did the police have consent to enter the residence in question? Were there exigent circumstances that allowed the police to enter the residence? Should the observations of the police of the defendant in his residence and the statements of the defendant made in said residence be suppressed? Did the police have probable cause to arrest the defendant at the hospital? Did the defendant voluntarily agree to submit to a blood test? Should certain vehicle and traffic charges be dismissed for failure to provide a supporting deposition?
Legal Analysis
Entry of the Residence by the Police. This issue is governed by both the 4th Amendment to the United States Constitution and the Article I, Section 12 of the New York State Constitution, which prohibit unreasonable searches and seizures and requiring that any warrants issued be based on probable cause. The defendant herein was living, albeit temporarily, with his girlfriend at 1110 Rousseau Drive. At that time the Webster Police were investigating two motor vehicle accidents. The officers in question did not witness the accidents. Their investigation led them to 1110 Rousseau Drive because the police obtained an identification of the vehicle that was involved in said accidents. That identification allowed them to obtain the name and address of that vehicle's owner.
“It is a basic principle of Fourth Amendment law' that searches inside a home without a warrant are presumptively unreasonable.” (Payton v. New York 445 U.S. 573,586 [1980] ) In this case the police were searching for the driver of the vehicle they found outside the residence of 1110 Rousseau Drive, because the vehicle matched the description of the vehicle involved in the hit and run accidents that had recently taken place. They did not possess either a search or an arrest warrant when they entered the defendant's residence.
“Courts have long recognized that te Fourth Amendment is not violated every time police enter a private premises without a warrant. Indeed, though warrantless entries into a home are presumptively unreasonable' (Payton v. New York, 445 U.S. 573, 586, 63 L.Ed.2d 639, 100 S.Ct. 1379 [1980] ; see also Coolidge V. New Hampshire, 403 U.S. 443, 474–475, 29 L.Ed. 564, 91 S. Ct 20022 [1971], the touchstone of the Fourth Amendment is reasonableness'—not the warrant requirement (United States v. Knigths, 534 U.S. 112,118, 151 L.Ed.2d 497, 122 S.CT. 587 [2001] ). (People v. Molnar, 98 N.Y.2d 328,331, 746 N.Y.S.2d 673, 674–675 [2002] ).
There are specific instances when the police are not bound by the warrant requirement. “Indeed, provided that there is probable cause, the police may proceed without a warrant to effectuate an arrest within a home if exigent circumstances exist to justify a warrantless entry (see Kirk v. Louisiana, 536 U.S. 635, 638, 122 S Ct 2458, 153 L.Ed.2d 599 [2002] see also People v. Burr, 70 N.Y.2d 354, 360, 514 N.E.2d 13363, 520 N.Y.S.2d 739 [1987] ).” (People v. McBride, 14 NY3d 440,445, 902 N.Y.S.2d 830 [2010] )
In any event, other than the misdemeanor of leaving the scene of a personal injury accident, VTL 600 ( [2)(a), the police had no objective basis on which to suspect any other crime had been committed when they entered the defendant's residence. “A warrantless governmental intrusion into the privacy of a home is, with limited exceptions, prohibited by constitutional limitations. (citations omitted) At a minimum, there must be probable cause to believe that the suspect sought therein has committed a felony.” (People v. Cruz, 149 A.D.2d 151, 156, 545 N.Y.S.2d 561 [1989] ). There was no such felony investigation being conducted by the Webster Police at 1110 Rousseau Drive.
(i) Exigent Circumstances. The People allege that the exigent circumstances presented in the instant case result from the fact that the police believed that the defendant was having a medical emergency due to diabetes. Medical emergencies have been recognized as a basis for the warrantless entry of a residence. However, the police must have an objective basis for believing that such a medical emergency exists. (Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L. ED.2d 650 [2006] ) This would be the case even if the officer's actual or additional motive was to investigate a crime. The United States Supreme court has determined that the subjective motivation of the officer is irrelevant. (See Wren v. United States, 517 U.S. 806 [1996].).
However, the facts herein show that Ruby Gropp, the primary resident of the apartment was present with a key to enter the residence and check in on the defendant, if he was in fact in the apartment at the time. In addition, there were paramedics on the scene, from the Union Hill Fire Department, who entered the apartment to check on the defendant. These facts beg the question as to why the police also needed to enter the apartment at that time? Certainly, Ms. Gropp could look to see if the defendant was in the apartment and was in any kind of distress. If he was in distress, the paramedics could have tended to him. Thus it would appear that the People could not rely on an objective exigent circumstance of a possible medical emergency to justify entry into the defendant's residence.
(ii) Consent. There is no doubt that Ruby Gropp had authority to grant police consent to enter and search her apartment. She was the primary occupant having been the legal lessee. However, it is far less than clear as to whether she gave such permission either on the occasion of the phone call to her by Officer Cayward or on the occasion of her arriving at the apartment.
“When the police claim to have consent to enter the premises, it is the People's burden to show that consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.' Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ; Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). There are a variety of factors that should be examined as a whole when determining the voluntariness of consent, including, 1) whether the consenter was in police custody at the time (also including such considerations as number of officers present and the extent to which they restrained the defendant), 2) the background of the consenter, including prior experiences with the police, 3) whether or not the consenter offered any resistance to the police, and 4) whether the police informed the consenter of their right to refuse consent. People v. Gonzalez, 39 N.Y.2d 122, 128–130, 347 N.E.2d 575, 383 N .Y.S.2d 215 (1976). None of these factors is individually controlling; rather consent must be determined from the totality of the circumstances. Id. at 128. Furthermore, such consent need not be specifically or orally given, but may be inferred from an individual's words, gestures, or conduct.' United States v. Buettner–Janusch, 646 F.2d 759, 764 (2d Cir.1981).” (People v. Fakoya, 25 Misc.3d1 1205(A), 901 N.Y.S.2d 909 [2008] )
First, Ms. Gropp was not in custody at any time. However, there were three officers on the scene when she arrived at her apartment, Cayward, Sotir and Adriaansen. Second, there was no evidence that Ruby Gropp had any prior experience in dealing with police officers. Third, there was no evidence presented that Ruby Gropp resisted entry of the police officers into her apartment. Fourth, there was no testimony that Ms. Gropp was advised of her right to refuse to consent to the search. Officer Cayward testified that Ms. Gropp agreed to have the officers accompany her into her apartment both on the phone and when she arrived at the scene. However, on cross-examination, he testified to advising Ms. Gropp on the phone that they [the police] might have to force the door if they were not let into the apartment. Suppression of Evidence Obtained From Entry of Residence. As stated above the police did not have either exigent circumstances or consent to enter the residence of the defendant. Nevertheless, suppression of evidence obtained as a result of said entry is not automatic as fruit of the poisonous tree. The Court of Appeals stated “There are, it is settled, exceptions to the rule that evidence is inadmissible if uncovered as a result of information obtained by impermissible conduct on the part of police officers” (People v. Fitzpatrick, 32 N.Y.2d 499,505–506, 346 N.Y.S.2d 793,796 [1973] ) One of these exceptions is known as the “inevitable discovery' “ rule. (See also People v. Adams, 120 AD3d 1253, 992 N.Y.S.2d 133 [2014] ) In this case the general observations of the defendant as it applies to indicia of intoxication would be inevitably discovered by the police once the defendant was taken out of the house and taken to the hospital. In addition, the doctrine of inevitable discovery would also apply to both the observations of the fall of the defendant on the night stand and the statements made by the defendant in the bedroom of his residence. That incident and the statements of the defendant would be reported by and testified to by the paramedics. The Appellate Division, Second Department held in People v. Adams, 120 AD3d 1253,1254–1255, 992 N.Y.S.2d 133, 135 [2nd Dept.2014] that “... the hearing court erred in suppressing disputed identification evidence and the defendant's statement to law enforcement officials as fruit of the poisonous tree because this evidence fell under the inevitable discovery exception to the exclusionary rule....”. Thus neither the observations of defendant nor his statements to the police in his residence are suppressed.
Id at 507, 798.
Probable Cause to Arrest. This case does not fit into any convenient category such as a warrantless arrest of the defendant in his home. That is because no arrest took place in the defendant's home. Instead, due to the fact that the defendant fell and injured his head, he was transported by the Union Hill Fire Department Ambulance personnel to Rochester General Hospital. Webster Police Officer Bryan Cayward followed the ambulance to the hospital emergency department. Once there he began to speak with the defendant. Totally ignoring what went on in the defendant's residence, Officer Cayward still had evidence of two hit and run traffic accidents involving damage to the rear end of two vehicles, a description of the vehicle involved, including a license plate number, an address of the registered owner of the vehicle, a phone conference with that owner of that vehicle pointing to the defendant as the driver, the car of the registered owner matching the description of the car that left the scene of two accidents which is found in the front of the owner's apartment, said car having front end damage and a license plate number matching that which was previously provided as part of the description. In addition, there is a male individual being taken out of the residence of the registered owner by emergency medical personnel so he can be taken to a hospital.
At the Rochester General Emergency Department Officer Cayward went into the room where the defendant was being treated to further investigate the situation. “Such approaches are governed by People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992), and People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976).” Gertstenzang, Handling the DWI Case in New York § 1:2 at 3 (2013–2014 Edition). Once in the room the officer began to question the defendant, which led to various statements made by the defendant, a blood draw and an arrest of the defendant in the hospital emergency room. The Court of Appeals has stated that such situations set out
“... the fundamental issue of whether or not a police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information. We hold that he may. The basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made but there must be some articulable reason sufficient to justify the police action which was undertaken.” (People v. DeBour, 40 N.Y.2d 210,213, 386 N.Y.S.2d 375, 378 [1976] )
Over a decade later the court summarized its thoughts on the issue of a police officer approaching a citizen to obtain information.
“In People v. De Bour (40 N.Y.2d 210, 223 ), we set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion' (People v. De Bour, supra, at 223). Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.” (People v.. Hollman 79 N.Y.2d 181,184–185, 581 N.Y.S.2d 619,620 [1992] )
In this particular case the police conversation with the defendant at the hospital is at the beginning a level one encounter to obtain information. Certainly he was aware of two prior hit and run motor vehicle accidents, with one involving possible personal injuries.This escalated very quickly to a level two encounter when the defendant advised the officer that he “had been drinking and driving” and that he had been drinking straight vodka. The defendant then admitted to hitting one car and leaving the scene of the accident because of the said drinking and driving. In response to further questioning the defendant indicated that he was not a diabetic but did take some sort of diabetes medication and that he took Valium. The officer then moved to a level three encounter by remaining with the defendant in his hospital room. For all intents and purposes the defendant was being stopped and detained by the officer. As a result of the information obtained to that point the officer arrested the defendant for driving while intoxicated. This court holds that the arresting officer had probable cause, that is reasonable cause, to make that arrest.
C.P.L. § 70.10(2) sets out the definition of reasonable cause.
(i) Huntley Issues. In addition to the reasons set forth above, the statements made by the defendant to Officer Cayward in the emergency department are not suppressible as being made in a custodial setting. “The fact that he was injured and was lying in a hospital bed did not render the environment a custodial one.” (People v. Alvarez–Hernandez, 2002 Slip Op 50379U *28) Nor is the subjective belief of the defendant as to his custodial status relevant. Voluntariness of Blood Test. In order for the blood test to be admissible into evidence the consent of the defendant must be voluntary, knowingly and freely given. (See People v. Slater, 166 A.D. 828, 830, 562 N.Y.S.2d 985, 987 [3rd Dept.1990] When asked by the assistant district attorney during direct examination if the defendant consented to a blood draw, Officer Cayward responded “implied consent”. The evidence indicated that when the defendant was in the hospital emergency room and following his arrest, he asked Officer Cayward “What's next?” Officer Cayward responded “A blood Test'. To which the defendant said “Okay”. During that time the defendant complained of pain in his head, presumably from his fall at the apartment. On cross-examination the officer indicated that he did not specifically ask the defendant if he would submit to a blood draw to determine his blood alcohol count. As stated above Lynette Enright, the nurse in the emergency room went into greater detail with the defendant regarding the taking of two blood tests, i.e. one for the police and one for the hospital. She even had him sign a hospital consent form, which states above the defendant's signature in upper case letters “I HAVE GRANTED PERMISSION FOR BLOOD TO BE TAKEN.”
Id.
In a case remarkably similar to the case at hand as it applies to the blood test, the Appellate Division, Fourth Department held in a memorandum decision in People V. Skardinski, 24 AD3d 1207, 807 N .Y.S.2d 232 [4th Dept.2005] that the defendant did not voluntarily consent to the blood draw. The pertinent part of the courts decision is as follows:
“When defendant failed to respond to or indicate that she understood the State Trooper's warnings, the State Trooper stepped into the hall to speak with a nurse about the possibility of a court-ordered blood test. The nurse then entered defendant's room and said, [T]he police are here. They want to take blood for possible, for a DWI, you know. Do you know that's why they're here, we're going to take blood. We need you to consent on this in order to do it.' The nurse presented defendant with a clipboard securing the consent form, and defendant signed the consent form at an irregular angle across the title of the document rather than on the designated signature line. Under the circumstances presented herein, we conclude that the People failed to meet their heavy burden of proving the voluntariness of the purported consent [ ]' (People v. Gonzalez, 39 N.Y.2d 122, 128, 347 N.E.2d 575, 383 N.Y.S.2d 215 [1976] ; see Ellis, 190 Misc.2d at 105–107 ; cf. People v. Atkins, 85 N.Y.2d 1007, 1008–1009, 654 N.E.2d 1213, 630 N.Y.S.2d 965 [1995] ; People v. Hoffman, 283 A.D.2d 928, 929, 725 N.Y.S.2d 494 [2001], lv. denied 96 N.Y.2d 919, 758 N.E.2d 662, 732 N.Y.S.2d 636 [2001] ).” (People v. Skardinski, 24 AD3d 1207,1208, 807 N.Y.S.2d 232,233 [4th Dept.2005] ).
The court does not elaborate as to why under those facts that the court determined that the defendant did not voluntarily, knowingly and freely given consent. Nor are the cases cited by the court overly helpful. One is left to speculate that the court felt that the State Trooper abrogated his responsibility of obtaining a proper consent to the emergency room nurse. It is possible to argue that a person would be more willing to give consent to draw blood to a medical person rather than a police officer. Certainly, there was no indication that the defendant in Skardinski was advised that he could refuse to allow the blood draw. Certainly in the instant case, the defendant was never advised as to his right to refuse to permit the blood draw. In addition, it was the nurse and not the officer that discussed the purpose of the test. Based on all these facts and on the holding by the Appellate Division in People v. Skardinski, this court holds that the People have failed to meet their burden proving the voluntariness of the purported consent.
The concept of consent and the factors to be considered are discussed above.
Supporting Deposition. The defendant was charged with common law driving while intoxicated, VTL § 1192(3), aggravated driving while intoxicated, VTL 1192(2–a)(a), leaving the scene of a personal injury accident, VTL 600(2)(a), leaving the scene of a property damage accident, VTL § 600(1)(a), failure to keep right, VTL § 1120(a), and following too closely, VTL § 1129(a) by simplified information in accordance with VTL § 100.25(1). Defendant was arraigned with counsel on June 5, 2013. He pled guilty to aggravated driving while intoxicated, VTL 1192(2–a)(a) in full satisfaction of all charges before the court on September 4, 2013. The defendant's current attorney was substituted as counsel on or about January 13, 2014. Defendant was allowed to vacate his plea on February 14, 2014. His new attorney submitted Omnibus Motions on or about on or about April 2, 2014. The motions papers included a demand for dismissal of the charges of following too closely, VTL § 1129(a) and, leaving the scene of a personal injury accident, VTL 600(2)(a) for failure to provide a supporting deposition in pursuant to People v. Tyler, 1 NY3d 49, 776 N.Y.S.2d 199 [2004]. It is uncontroverted that a standard form supporting deposition was provided to the defendant relative to the charge of common law driving while intoxicated, VTL § 1992(3) along with the C.P.L. 710.30 Notice within the required time.
The controlling statute is C.P.L. § 100.25(2) which states in pertinent part
“A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto.”
In defense counsel's omnibus motions he states in his affidavit “Upon information and belief, the Defendant requested a supporting deposition within the thirty (30) day statutory time period.” However, the court has scoured its file to find any request for a supporting deposition either verbally or in writing during the said thirty day time frame. No such request for a supporting deposition was made by defendant or his then attorney. “In short, ... a defendant cannot ask for a supporting deposition later than 30 days after the return date on the appearance ticket....” (People v.. Tyler, 1 NY3d 493,496, 776 N.Y.S.2d 199,201 [2004] ) Since no request was made for a supporting deposition within the statutory time, the defendant's motion to dismiss the charges of following too closely, VTL § 1129(a) and, leaving the scene of a personal injury accident, VTL 600(2)(a) for failure to provide a supporting deposition is hereby denied.
Conclusion.
The entry of the police into the residence of the defendant without an arrest or search warrant was not justified by exigent circumstances. Nor did the police obtain the requisite consent to enter said premises from the defendant or an authorized third party. However, based on the doctrine of inevitable discovery the evidence obtained by the police while in the defendant's residence is not suppressed. However, the People failed to establish its burden to prove the defendant's knowing and voluntary consent to the blood draw at Rochester General Hospital. Therefore the results of the blood tests are suppressed. Thus the charges of aggravated driving while intoxicated, VTL § 1192(2–a)(a) and operating a motor vehicle while impaired by the combined influence of drugs and alcohol, VTL § 1192(4–a) are hereby dismissed, pursuant to CPL § 170.30(1)(f). The court does find that the Officer had probable cause to arrest the defendant for common law driving while intoxicated, VTL § 1192(3), based on the evidence obtained by the officer before entry into the defendant's residence, while in the residence and at the hospital emergency room. The motion to suppress statements made by the defendant while in the emergency room is denied, since they were voluntarily made to a police officer with a common law right of inquiry and not made in a custodial setting. Finally, as previously indicated, defendant's motion to dismiss the charges of following too closely, VTL § 1129(a) and leaving the scene of a personal injury accident, VTL 600(2)(a) for failure to provide supporting depositions is denied. The charges of common law driving while intoxicated, VTL § 1192(3), leaving the scene of a personal injury accident, VTL 600(2)(a), leaving the scene of a property damage accident, VTL § 600(1)(a), failure to keep right, VTL § 1120(a), and following too closely, VTL § 1129(a) remain before the court. This constitutes the decision and order of this court.
CPL § 170.30(1)(f) states as follows: “After arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that: There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.”
--------