Opinion
No. 19-134
11-30-2023
The People of the State of New York, Respondent, v. Jay Escue, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J.), rendered April 23, 2018, convicting him, upon a plea of guilty, of driving while intoxicated, and imposing sentence.
PRESENT: Hagler, P.J., Tisch, J.
PER CURIAM.
Judgment of conviction (Steven M. Statsinger, J.), rendered April 23, 2018, affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 N.Y.2d 759, 761 [1977]). The stop of defendant's vehicle was justified by the police officer's observation of a broken headlight, a violation of Vehicle and Traffic Law § 375(2)(a)(1) (see People v Hinshaw, 35 N.Y.3d 427 [2020]; People v Clemente, 195 A.D.2d 300 [1993], lv denied 82 N.Y.2d 715 [1993]).
The police also had reasonable suspicion to stop the vehicle based upon a radio transmission indicating that a gray, four-door Chrysler 300, with a missing headlight and snow on the roof, was being driven south on Third Avenue by a possibly intoxicated individual, who had waved a knife during an argument. Defendant's vehicle, which matched the description, was observed in close geographical and temporal proximity to the reported crime (see People v Ceruti, 133 A.D.3d 610, 611 [2015], lv denied 26 N.Y.3d 1143 [2016]).
In response to defendant's challenge to the reliability of the information received over the radio transmission, the People established that "the officer... imparting the information, in fact possessed the probable cause to act" (People v Rosario, 78 N.Y.2d 583, 588 [1991], cert denied 502 U.S. 1109 [1992]; see People v Ketcham, 93 N.Y.2d 416, 420 [1999]). Here, the officer who transmitted the radio information credibly testified at the suppression hearing that, after receiving a call about a dispute with a knife at East 11th Street and Third Avenue, he went to the location and was informed by an identifiable individual, who had previously worked in his precinct as a confidential informant, that a possibly intoxicated man had displayed a knife during an argument, before driving south on Third Avenue in a gray, four-door Chrysler 300, which had a broken headlight and snow on the roof (see People v Taylor, 61 A.D.3d 537 [2009], lv denied 13 N.Y.3d 750 [2009]). Given the short passage of time and relatively detailed description, the officer could have reasonably concluded that the information was based upon the informant's personal knowledge (see People v Herold, 282 A.D.2d 1, 7 [2001], lv denied 97 N.Y.2d 682 [20012]; see also People v Letriz, 103 A.D.3d 446 [2013], lv denied 21 N.Y.3d 1006 [2013]; People v Phillips, 120 A.D.2d 621 [1986]; cf. People v Bigelow, 66 N.Y.2d 417, 424 [1985] ["informant's statements did not describe defendant's activities with sufficient particularity to warrant an inference of personal knowledge"]). "The mere fact that the identified informant had provided the police with information in the past did not strip him of his citizen-informant status. Nor is there any indication in the record that he was paid for the information or solicited in any way to assist the police" (People v Rodriguez, 135 A.D.2d 755, 756 [1987], lv denied 71 N.Y.2d 902 [1988]).
The court also properly denied defendant's motion to suppress his post- Miranda statements. Defendant's 6:37 a.m. statement was attenuated from an earlier statement that the court had suppressed based upon a Miranda violation. The taint of the Miranda violation was dissipated by the brevity of the statement defendant made without Miranda warnings, the passage of time (two hours), the administration of Miranda warnings by a new interrogator, and the general absence of coercive circumstances (see e.g. People v White, 10 N.Y.3d 286 [2008], cert denied 555 U.S. 897 [2008]; People v Morales, 184 A.D.3d 532 [2020], lv denied 35 N.Y.3d 1114 [2020]; People v Davis, 106 A.D.3d 144, 152-155 [2013], lv denied 21 N.Y.3d 1073 [2013]; People v Samuels, 11 A.D.3d 372 [2004], lv denied 4 N.Y.3d 802 [2005]). The court also properly declined to suppress defendant's spontaneous and voluntary statement to the police at the precinct approximately one hour later, which was not the result of an interrogation, that he had been "celebrating" with friends; that he drank "Hennessy" (which he kept in his car) and was "drinking too much" that evening when he encountered the complainant and pulled out a knife; and that he was "upset that this was happening" (see People v Grant, 96 A.D.3d 779, 780 [2012], lv denied 19 N.Y.3d 1026 [2012]).
We also have no basis to disturb the suppression court's finding that, although defendant was intoxicated, he knowingly and voluntarily waived his Miranda warnings since, by the time defendant furnished his statements, his condition had improved and he was fully aware of what was transpiring (see People v Morales, 210 A.D.2d 173 [1994], lv denied 84 N.Y.2d 1035 [1995]).
Defendant's contention that the results of the breathalyzer test should have been suppressed is without merit, since he expressly and voluntarily consented to the administration of the test (see People v Atkins, 85 N.Y.2d 1007, 1008-1009 [1995]). The two hour limitation contained in Vehicle and Traffic Law § 1194 "does not apply where the defendant expressly and voluntarily consents to the administration of the breath test" (People v Marietta, 61 A.D.3d 997, 998 [2009]). Any warning that police gave defendant - that his license would be suspended if he refused the test - "was correct... [and] [p]roviding that warning to [defendant] even after expiration of the two hour period, does not constitute coercion, and does not render [his] subsequent consent involuntarily given" (People v Odum, 31 N.Y.3d 344, 354 [2018 Wilson, J., concurring]; see Matter of Endara-Caicedo v New York State Dept. of Motor Vehicles, 38 N.Y.3d 20 [2022]).