Opinion
Docket No. CR-031713-22QN
12-12-2023
The People of the State of New York v. Evans, Defendant.
For the People: Melinda Katz, District Attorney (by Jackson Deterding & Aaron Kane). For Mr. Evans: The Legal Aid Society (by James Neville).
Unpublished Opinion
For the People: Melinda Katz, District Attorney (by Jackson Deterding & Aaron Kane).
For Mr. Evans: The Legal Aid Society (by James Neville).
Wanda L. Licitra, J.C.C.
On October 16, 2023, this court conducted a Huntley / Mapp / Dunaway / Refusal hearing. The following constitutes the court's findings of fact and conclusions of law.
FINDINGS OF FACT
At the hearing, the People called one witness, NYPD Officer Marcos Araujolapaix, shield number 7100. The court generally credits his testimony. The People admitted video footage from the NYPD Intoxicated Driver Testing Unit ("IDTU"). The defense admitted an arrest photograph of Mr. Evans and Officer Araujolapaix's body-worn camera footage. Having reviewed all the evidence presented, the court makes the following findings of fact.
Officer Araujolapaix has worked for the NYPD for approximately seven years at the 114th Precinct. During that time, he has made eighty to ninety arrests. Approximately four have been for driving while intoxicated. Officer Araujolapaix was trained at the NYPD Police Academy in identifying signs of intoxication. He encounters intoxicated individuals in his job three or four times a week.
On the evening of December 22, 2022, Officer Araujolapaix was on a supervising tour, which means that he was supervising units on patrol. He was doing this with Lieutenant Jose Deschamps, and the two officers were in uniform in a marked police car. It was cold, dark, and raining.
At around 5:40 p.m., they were driving southbound on Steinway Street in Queens County near 30th Avenue. As he was stopped at a traffic light on Steinway Street, Officer Araujolapaix was approached by a pedestrian. This pedestrian stated that he had observed a possibly intoxicated person or someone having a medical emergency inside of a vehicle. The pedestrian did not give his name. Officer Araujolapaix drove to the location that the pedestrian had indicated he made his observations, which was about ten car-lengths away.
At 5:44 p.m., Officer Araujolapaix arrived at the location, which was near 4007 30th Avenue in Queens. There, he observed a black SUV parked in a lane of traffic, parallel to and blocking a bus stop. 30th Avenue has two lanes, one running in each direction and divided by double yellow lines. The car was in one of those two lanes, almost in the middle of the street. No other officers were present yet.
Officer Araujolapaix got out of his vehicle and walked towards the driver's side of the black SUV. The car was on, the windshield wipers were on, and the engine was running. He saw a person slumped over sitting in the driver's side. That person was Mr. Evans, and he was unconscious. Officer Araujolapaix opened the driver's door and touched Mr. Evans' shoulder "just to make sure he was still alive or he doesn't need, like, any police assisting." Mr. Evans woke up upon the officer touching him. The officer said, "You good? What's going on?" Mr. Evans responded, "Yes sir." After tapping Mr. Evans' shoulder, Officer Araujolapaix smelled alcohol and saw that Mr. Evans' eyes were bloodshot and watery. He then ordered Mr. Evans to step out of the car, grabbing his arm to pull him out. He also asked him, "Do you have any weapons on you or anything?" Mr. Evans responded, "No."
At 5:45 p.m., Officer Araujolapaix took Mr. Evans to the sidewalk. Officer Araujolapaix ordered Mr. Evans take his hands of his pockets. At this point, Officer Araujolapaix testified, Mr. Evans was not "under arrest." (Tr. at 44). At the sidewalk, the police placed Mr. Evans in front of their police car, which had its turret lights on. Lieutenant Deschamps ordered him to "turn around, buddy," and Officer Araujolapaix, still grabbing Mr. Evans' arm, moved him around to face Lieutenant Deschamps. Lieutenant Deschamps stood in front of Mr. Evans while Officer Araujolapaix stood directly behind, his hands continuing to firmly hold Mr. Evans by the back of his jacket.
There, Lieutenant Deschamps asked him if he was under the influence of alcohol or drugs and where he was coming from. Mr. Evans responded that he was not under the influence and was coming from a friend's house. Officer Araujolapaix observed that Mr. Evans was unsteady on his feet and had slurred speech. He testified that, at this point, Mr. Evans was still not "under arrest." Throughout this questioning, Officer Araujolapaix continued to hold onto the back of Mr. Evans' jacket with a tight grip.
At 5:46 p.m., Officer Araujolapaix frisked Mr. Evans and, upon feeling a hard object, searched through his jacket pockets. Officer Araujolapaix says he did this as a "protective measure"-i.e., in his words, looking for "weapons or anything like that"-and for "any possible evidence that we can collect." "I am always concerned with my safety," he explained.
In the jacket pockets, Officer Araujolapaix found three small bottles of alcohol. Upon seeing the bottles, Lieutenant Deschamps questioned Mr. Evans about them. Mr. Evans responded that he had drank them four or five hours ago. The bottles were empty. Officer Araujolapaix never vouchered these bottles because it is "NYPD procedure" that officers do not have to "voucher any container with any kind of, like, liquid." Mr. Evans was not in handcuffs at this time. However, Officer Araujolapaix remained directly behind Mr. Evans, close enough that their jackets were constantly rubbing against each other, and still holding onto him. During this search, Mr. Evans still was not "under arrest," explained Officer Araujolapaix, but he was "detained."
On cross examination, Officer Araujolapaix explained what he means when he says someone is "detained" but not "under arrest":
Q: Now, at this point, after those three bottles were taken out of Mr. Evans' pockets, was Mr. Evans under arrest?
A: Not yet.
Q: And that is because Lieutenant Deschamps is still inquiring and still talking to Mr. Evans to make a determination whether the suspicion of intoxicated driving is borne out, right?
A: Yes. Correct.(Tr. at 52). After questioning Mr. Evans about the bottles, Lieutenant Deschamps said, "one under, guy" to Officer Araujolapaix. As the officer explained at the hearing, that means Mr. Evans was "going to get arrested." It was at that point, in other words, that the police decided to arrest Mr. Evans.
At 5:47 p.m., Officer Araujolapaix placed handcuffs on Mr. Evans. After Mr. Evans was in handcuffs, Lieutenant Deschamps continued speaking to and questioning him.
Officer Araujolapaix then took Mr. Evans to the 112th Precinct, which houses an NYPD "Intoxicated Driver Testing Unit" or "IDTU." While transporting Mr. Evans to the IDTU, Mr. Evans said he was worried he was going to lose his car, that the judge would send him to jail, and that his life was destroyed. He also said that he had "drunk them shots earlier today" and that he was "not drunk." At this time, he was in handcuffs. The officer testified that he did not ask any questions that prompted Mr. Evans to make these statements. In reviewing the body-worn camera footage, while most of the statements were not prompted, others were. At one point, an officer says, "You are being detained - you were intoxicated and behind the wheel of a car in the middle of the street." However, the officer makes these statements in response to Mr. Evans asking, "Why am I being locked up? I was sleeping." The officers similarly made other statements only in response to questions by Mr. Evans. At one point, an officer suggests to Mr. Evans that he stop speaking to "help" himself.
At 7:43 p.m., at the IDTU, Officer John Karantzios of the NYPD's Highway Command requested that Mr. Evans submit to a chemical test of his breath. This exchange followed:
Mr. Evans: "If I don't take the test, then what?"
Officer Karantzios: "I need a yes or no."
Mr. Evans: "If I don't take it, then you're saying I'm losing my license?"
Officer Karantzios: "Okay, I'm going to read you the refusal warnings if you don't take the test. If you refuse to submit to the test, or any portion thereof, it will result in the immediate suspension and subsequent revocation of your driver's license or operating privileges for a minimum period of one year whether or not you are found guilty of the charges for which you have been arrested. In addition, your refusal to submit to the test or a portion thereof can be introduced as evidence against you in any trial, hearing, or proceeding resulting from the arrest. I ask you again, will you take the breath test, yes or no?"
Mr. Evans: "Will I be able to get out of jail?"
Officer Karantzios: "I have to follow the script here, so I'm asking you, I need a yes or no."
Mr. Evans: "Yeah but I'm saying if I say no, will I be able to get out of jail?"
Officer Karantzios: "That has nothing to do with this test."
Mr. Evans: "Let me think about it."
Officer Karantzios: "You're not gonna think about it. Right now, I'm offering this test. If you're not going to give me an answer, it's going to be a refusal."
Mr. Evans: "So it's going to be suspended for one year, my license?"
Officer Karantzios then read the refusal warnings again and requested that Mr. Evans take the test.
Mr. Evans: "I wasn't impaired! I wasn't driving! The vehicle was in park."
Officer Karantzios: "Sir I'm going to read you this refusal warning one more time."
Officer Karantzios read the warnings again and requested that Mr. Evans take the test. Mr. Evans said, "No." This was at 7:45 p.m.
In the seconds immediately thereafter, the conversation continued:
Mr. Evans: "Do I get my car back, will I be able to get my car back?"
Officer Karantzios: "'Kay, we're going to proceed with the testing now."
Mr. Evans: "Well, don't, I'm gonna take the test... I shouldn't refuse it if you're going to charge me."
Officer Karantzios then began to conduct the horizontal gaze nystagmus test. "Take your hands out of your sides, turn around," he said.
Between 7:46 p.m. and 7:47 p.m., only one minute after Mr. Evans said "no," the conversation continued:
Mr. Evans: "I don't want to refuse. I just - I'm just saying I'm trying to get a job with Amazon."
Officer Karantzios: "We're done with that, I'm going to check your eyes now."
Mr. Evans: "I'm willing to take the test."
Officer Karantzios: "It's too late for that."
Officer Karantzios then had Mr. Evans do the walk-and-turn test and the one-leg-stand test. Mr. Evans refused to answer further questioning from the officers. Officer Araujolapaix was present for this entire testing at the IDTU.
LEGAL ANALYSIS
I. Mapp / Dunaway
At a Mapp / Dunaway hearing, the People bear the burden of production to "go forward and demonstrate the legality of the police conduct." (People v. Rojas, 163 A.D.2d 1, 2 [1st Dep't 1990]). In doing so, the People are required to establish that the police's "encounter with the defendant was justified [from] its inception" and at every subsequent stage. (People v. Broughton, 163 A.D.2d 404, 405 [2d Dep't 1990]; see also People v. Joyette, 219 A.D.3d 628, 630 [2d Dep't 2023] ["The court must consider whether or not the action of the police was justified at its inception."]). If the People meet their burden of production, the burden then shifts to the defense to show, by a preponderance of the evidence, that a police act was unlawful. (E.g., People v. Berrios, 28 N.Y.2d 361 [1971]).
At the beginning, the record establishes that the police were justified in approaching Mr. Evans' car. A pedestrian approached the officers on the street and informed them of a person possibly intoxicated or having a medical emergency in a vehicle. Upon arriving at the location that the pedestrian indicated, the police saw a vehicle double parked parallel to a bus stop in the middle of the lane of traffic. (See, e.g., People v. Calizaire, 65 Misc.3d 137 [A], at *1 [App. Term, 1st Dep't 2019] ["The police had, at least, an objective credible reason to approach defendant's stationary vehicle and ask for basic identification information, since the vehicle was double-parked, which constituted a traffic infraction."]).
The record also establishes that the police were justified in opening the car door and temporarily detaining Mr. Evans. Upon approaching the vehicle, the police observed that a person was apparently unconscious at the wheel. This corroborated the earlier tip that a person was possibly intoxicated or having a medical emergency in a vehicle at the location. As a result, the police were justified in opening the door for the purpose of attending to a possible emergency or rendering aid. (See generally Brighman City, Utah v. Stuart, 547 U.S. 398 [2006]; People v. Mitchell, 39 N.Y.2d 173 [1976]; see also People v. McCaul, 71 Misc.3d 126 [A] [App. Term, 2d Dep't 2021]). In the alternative, the police possessed reasonable suspicion that the driver had been operating the vehicle while impaired, which would also justify opening the door and detaining Mr. Evans. (See People v. Rossetti, 148 A.D.2d 357, 357-58 [1st Dep't 1989] [noting that opening the doors of a parked car requires reasonable suspicion of a crime]). The car was on, its engine was running, and its windshield wipers were on. The car was in the middle of the street, in a lane of traffic. And the officers had received a tip that a person was possibly intoxicated in a vehicle at that location. The officers' observation that a person was unconscious at the wheel corroborated that tip, giving rise to reasonable suspicion. (See generally People v. Argyris, 24 N.Y.3d 1138 [2014]; People v. Moore, 6 N.Y.3d 496 [2006]).
Because the pedestrian did not provide his name, the court analyzes, arguendo, his tip as anonymousan, without, onoma, name. The officers' subsequent actions pass even this more stringent standard for reasonable suspicion. That said, the court acknowledges that this situation straddles the line between an anonymous informant and a known one. (See, e.g., People v. Pope, 194 A.D.3d 449 [1st Dep't 2021]; People v. Reyes, 308 A.D.2d 422 [1st Dep't 2003]; People v. Bermudez, 242 A.D.2d 409 [1st Dep't 1997]; People v. Jackson, 205 A.D.2d 640 [2d Dep't 1994]; United States v. Sanchez, 519 F.3d 1208, 1213-14 [8th Cir. 2008]). A "face-to-face encounter" puts a tipster's "anonymity at risk, at least to a limited degree," and allows "the police an opportunity to evaluate [their] credibility and demeanor." (Sanchez, 519 F.3d at 1213). "Thus," such a tip may bear "an indicium of reliability" not present with anonymous tips that do not involve a face-to-face encounter. (Id.; see also Florida v. J.L., 529 U.S. 266, 276 [2000] [Kennedy, J., concurring] ["An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person... face to face[] informs the police that criminal activity is occurring."]; United States v. Salazar, 945 F.2d 47, 50-51 [2d Cir. 1991] ["[A] face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster."]; People v. Dunbar, 70 Misc.3d 734, 741-44 [Sup. Ct., Queens County 2020] [Zayas, J.] [making the same observations, noting there are "varying degrees of anonymity," and collecting cases]).
Upon smelling alcohol, the police had probable cause to arrest. At that point, the police had probable cause that Mr. Evans was operating a vehicle while impaired-he was asleep at the wheel in a car that was on in the middle of the road-and that the impairment was due to alcohol. The police were therefore justified in bringing Mr. Evans to the sidewalk and restraining him in a way that, for De Bour purposes, was the functional equivalent of an arrest. Accordingly, the arrest was lawful, and the Dunaway motion is denied.
However, Officer Araujolapaix's frisk and search of Mr. Evans' pockets was unlawful. As an initial matter, the police did not possess reasonable suspicion to frisk Mr. Evans. Police may temporarily detain a person when they reasonably suspect that a person has committed, is committing, or is about to commit a crime. (People v. Shuler, 98 A.D.3d 695, 696 [2d Dep't 2012]). But an officer is only authorized to conduct an additional frisk when he "reasonably suspects that a detainee is armed" or a threat to safety. (Id.). To support "a reasonable suspicion that the suspect is armed or poses a threat to safety," the officer must point to specific "fact[s] or circumstance[s]" that support that claim. (Id.). Police do not have authority to frisk any person whom they have temporarily detained. (Id.). Nor may police rummage freely through someone's pockets simply to look for evidence.
Here, Officer Araujolapaix pointed to no facts or circumstances suggesting that Mr. Evans was armed or a threat to safety. Police may not frisk any individual they have temporarily detained simply because-as this officer said-they are "always concerned" for their safety.
Nor could Officer Araujolapaix claim authority to conduct this search as incident to a lawful arrest, an exception to the warrant requirement. The United States and New York Constitutions prohibit "searches conducted outside the judicial process, without prior approval by judge or magistrate," as "per se unreasonable" subject "only to a few specifically established and well-delineated exceptions." (Katz v. United States, 389 U.S. 347, 357 [1967]). Among those exceptions is the search incident to a lawful arrest. (People v. Reid, 24 N.Y.3d 615 [2014]). That exception does not apply here.
To be sure, before conducting his search, Officer Araujolapaix "could lawfully have arrested defendant for driving while intoxicated." (People v. Reid, 24 N.Y.3d 615, 618-19 [2014]). As noted earlier, he had probable cause of the offense. "And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous." (Id. at 619). The problem, however, is that, as Officer Araujolapaix testified, at the time of the search, the officers had not yet actually decided to arrest Mr. Evans:
Q: Now, at this point, after those three bottles were taken out of Mr. Evans' pockets, was Mr. Evans under arrest?
A: Not yet.
Q: And that is because Lieutenant Deschamps is still inquiring and still talking to Mr. Evans to make a determination whether the suspicion of intoxicated driving is borne out, right?
A: Yes. Correct.(Tr. at 52; see generally id. 44-60 [in which the officer explains that Mr. Evans was "detained" but not "under arrest"]). "Where that is true, to say that the search was incident to the arrest does not make sense." (See Reid, 24 N.Y.3d at 619). "It is irrelevant that, because probable cause existed, there could have been an arrest." (Id.). "Where no arrest has yet taken place, the officer must have intended to make one if the 'search incident' exception is to be applied." (Id. at 620). Here, the record does not establish that the officers in fact intended to arrest Mr. Evans at the point of the search. Instead, the officers only formed that intent when they communicated "one under" to each other after questioning Mr. Evans about the bottles. (See Tr. at 54). Therefore, the "search incident to lawful arrest" exception does not apply here.
Accordingly, the search of Mr. Evans' pockets was unlawful. The fruits of that search-the bottles recovered, the observations of the bottles, and any statements made by Mr. Evans regarding those bottles-are therefore suppressed. In this sense, the" Mapp" motion is granted.
II. Huntley
At a Huntley hearing, the People must prove beyond a reasonable doubt that a statement they intend to introduce at trial was not obtained in violation of Miranda. The Miranda rule is a modern "prophylactic" invented by the U.S. Supreme Court to address "the advent of modern custodial police interrogation[s]." (See generally Dickerson v. United States, 530 U.S. 428, 435-38 [2000]). Such an interrogation-which was not common before late-twentieth century policing-"exacts a heavy toll on individual liberty," "trades on the weakness of individuals," and "blurs the line between voluntary and involuntary statements." (Id. at 435). These problems "heighten[] the risk that an individual will not be accorded his privilege... not to be compelled to incriminate himself." (Id. [internal quotation marks omitted]). As a result, the People "have the burden of demonstrating, beyond a reasonable doubt," that the accused "knowingly, intelligently, and voluntarily waived [their] Miranda rights." (People v. Dale, 207 A.D.3d 651, 651 [2d Dep't 2022]). The People must also "prove beyond a reasonable doubt that the individual was not in custody before Miranda warnings were given." (E.g., People v. McCoy, 89 A.D.3d 1218, 1219 [3d Dep't 2011]).
The People provided notice of two groups of statements. The first were made at the scene of the arrest. The second were made while Mr. Evans was seated in the back of the police vehicle on the way to the 112th Precinct.
The court concludes that the statements made at the scene after the police removed Mr. Evans from his vehicle must be suppressed as violating Miranda. Under the totality of the circumstances, Mr. Evans was in police custody from that point onwards. "The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" (People v. Trice, 213 A.D.3d 954, 956 [2d Dep't 2023]). A person is under arrest when there is a "significant interruption of a person's liberty of movement as a result of police action." (People v. Brown, 142 A.D.3d 1373, 1375 [4th Dep't 2016] [internal quotation marks omitted]; see also People v. Jones, 172 A.D.2d 265 [1st Dep't 1991] [noting that an arrest occurs when "an intrusion is of such magnitude that [an] individual's liberty of movement is significantly interrupted"]).
After the police removed Mr. Evans from his vehicle, Officer Araujolapaix continuously and tightly kept hold of the back of his jacket. As a result, the police were physically restraining him and controlling his movements. Officer Araujolapaix placed Mr. Evans in front of the police car, which had its turret lights on. Lieutenant Deschamps ordered him to "turn around, buddy," and Officer Araujolapaix, still grabbing Mr. Evans' arm, moved him to face Lieutenant Deschamps. Officer Araujolapaix then held Mr. Evans tightly, facing Lieutenant Deschamps, as Lieutenant Deschamps interrogated Mr. Evans about whether he had been driving and whether he had been drinking or using drugs. Throughout this questioning, Officer Araujolapaix continued to hold onto the back of Mr. Evans' jacket with a tight grip. He also, at the same time, was rummaging through Mr. Evans' jacket pockets and emptying them of their contents.
This was custodial interrogation. A reasonable person in Mr. Evans' position would have realized that Officer Araujolapaix was entirely restricting his physical freedom and that he was not free to leave. His body was constantly under the control of Officer Araujolapaix's grip, blocked to the side by a police car and in front by Lieutenant Deschamps. (See Trice, 213 A.D.3d at 956-57 [noting that a person was in custody for Miranda purposes when his "location was blocked" by police vehicles and his "hands were placed on top of a police vehicle when he was questioned"]). While the officers did not handcuff him at this point, Officer Araujolapaix's continuous, tight grabbing of his body was functionally the same level of bondage. (See id.).
Moreover, Lieutenant Deschamps' questioning was interrogation-it involved questions that an officer "should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis, 446 U.S. 291, 300-02 [1980]). The officers knew that Mr. Evans was asleep at the wheel of a car in the middle of the road. They had observed clear indicia of intoxication, including slurred speech, bloodshot, watery eyes, and the smell of alcohol. At this point, they had probable cause to arrest him for violating V.T.L. § 1192. They should have known that their questions-all geared towards either drinking, drug use, or driving-were reasonably likely to elicit incriminating responses.
These circumstances are a far cry from the "ordinary" traffic stops that do not usually involve the type of "custody" contemplated by Miranda. (See Berkemer v. McCarty, 468 U.S. 420, 440 [1984]). Recall, there is no "absolute rule" that "motorist detentions" can never constitute custody. (See Pennsylvania v. Bruder, 488 U.S. 9, 10 n.1 [1988] [per curiam]). To the contrary, "[i]f a motorist who has been detained pursuant to a traffic stop is thereafter subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." (Berkemer, 468 U.S. at 440). Where a police officer physically and continuously restrains a person from behind and faces him towards another officer who then interrogates him, that is not an ordinary traffic stop. That person is entitled to the full panoply of protections prescribed by Miranda. That is custodial interrogation.
To be clear, it is of no moment that, at this point, the police had not yet intended, in their own minds, to arrest Mr. Evans. "The subjective belief of a police officer is not controlling in determining when an arrest occurs." (People v. Fenti, 175 A.D.2d 598, 599 [4th Dep't 1991]; see also People v. Hicks, 68 N.Y.2d 234, 240 [1986] ["We have rejected as standards for determining when a de facto arrest has taken place the wholly subjective belief of the officer."]; People v. Mejia, 2 Misc.3d 494, 496 [Crim. Ct., Kings County 2003] ["A police officer's subjective conclusion that an arrest has occurred is never determinative of the issue."]). This is an objective standard-a mixed question of fact and law that must be decided by a court. (Fenti, 175 A.D.2d at 599).
Accordingly, Mr. Evans' statements made at the scene, once he was removed out of the car, are suppressed as violating Miranda.
However, the statements made in the police car were not the product of interrogation. The Miranda rule does not apply to spontaneous utterances. "The test is whether defendant spoke with genuine spontaneity and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed." (People v. Lanahan, 55 N.Y.2d 711, 713 [1981] [internal quotation marks omitted]). Here, Mr. Evans' statements in the car were spontaneous. Moreover, any statements made in response to Mr. Evans' own questions were not interrogation. (See People v. Harrison, 251 A.D.2d 681, 681 [2d Dep't 1998] ["There was no reason for the detective to suspect that by answering the defendant's question as to why he was arrested, the defendant would give a response incriminating himself."]). As a result, these statements are not suppressed for violating Miranda.
That said, any statements in the vehicle regarding the alcohol bottles recovered from Mr. Evans' jacket pockets are separately suppressed under the Mapp branch of this motion.
The People did not serve C.P.L. § 710.30 notice of any statements made at the police precinct. Therefore, they are not the subject of this motion.
III. Refusal
Under V.T.L. § 1194[2][f], a person's refusal to submit to a chemical test is only admissible against him at trial if, "upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal," that the person "persisted in the refusal." "The People bear the burden of establishing that a defendant refused to submit to a chemical test" as envisioned by the statute. (See People v. Harster, 63 Misc.3d 1209 [A], at *9 [Crim. Ct., Bronx County 2019]). "Persistence requires repetitive or unwavering conduct" or "a steadfast position, shown by a continued position despite opposition." (Prince v. DMV, 36 Misc.3d 314, 322 [Sup. Ct., NY County 2011]).
Oftentimes, the court is presented with situations where a person refused the test, was subsequently informed of the consequences of refusing, and then again refused. In such a situation, the plain text of the statute is satisfied-the person "persisted" in their initial refusal to take the test.
The facts here are quite different. In this case, when the officer initially asked Mr. Evans to take the test, he did not refuse. Instead, he asked questions about what happens if he does not take the test. The officer subsequently read the refusal warnings. After some back and forth, Mr. Evans said, "no," refusing to take the test for the first and only time. But because this was the first time he had refused the test, one cannot say he was then persisting in an earlier refusal. At that point, there was no earlier refusal to persist in-he was refusing for the first time. To be sure, had Mr. Evans said, "no," and then subsequently not said anything else, then he perhaps would have "persisted" in that refusal. But that is not what happened here. Instead, only a minute after his initial "no," Mr. Evans agreed to take the test. As a result, the record establishes that while Mr. Evans refused to take a chemical test, he did not "persist[] in that refusal." (Cf. V.T.L. § 1194[2][f]).
Accordingly, the refusal is suppressed.
***
The Mapp / Dunaway motion is granted in part, denied in part. The fruits of the unlawful search of Mr. Evans' jacket pockets-including the bottles, observations of the bottles, and Mr. Evans' statements about the bottles-are suppressed. The Huntley motion is granted in part, denied in part. Mr. Evans' statements at the scene after police removed him from his car are suppressed. The Refusal motion is granted. The alleged refusal is suppressed.
The foregoing constitutes the decision and order of the court.