Opinion
Docket No. CR-016530-22QN
08-16-2023
The People of the State of New York v. Gonzalez, Defendant.
For the People: Melinda Katz, District Attorney (by Jairo Z. Coronado & Stephanie Chazen) For Mr. Gonzalez: The Legal Aid Society (by Benjamin P.D. Mejia)
For the People: Melinda Katz, District Attorney (by Jairo Z. Coronado & Stephanie Chazen)
For Mr. Gonzalez: The Legal Aid Society (by Benjamin P.D. Mejia)
Wanda L. Licitra, J.
On April 27, 2023, this court conducted a Huntley / Dunaway /V.T.L. § 1194 hearing. As made clear at the beginning of the hearing, the defense sought to suppress C.P.L. § 710.30 noticed statements; police observations; and a blood draw at a hospital. The People consented to this scope of the hearing. After testimony and oral arguments, the court adjourned the case for the parties to file written submissions. The following now constitutes the court's findings of fact and conclusions of law.
That the People understood this scope of the hearing was also clear in the oral arguments. (See Tr. at 34 ["MR. CORONADO:... The People have the burden of proving that Officer Fogah had probable cause to arrest... and the statements were either voluntarily given or given after Miranda or spontaneous."]; id. at 37 [in which the People discuss consent under V.T.L. § 1194]).
FINDINGS OF FACT
At the hearing, the People called one witness, Dashawn Fogah. The court credits his testimony in full. Dashawn Fogah is an NYPD police officer who works at the 115th Precinct. He has worked there his entire career-about two years. During those two years, he has made about 18 arrests. He made five or six of those arrests before the arrest in this case.
On July 2, 2022, Officer Fogah was working a shift from 12:00 a.m. to 8:00 a.m. He was working with a partner. They were in a marked radio motor patrol vehicle and in uniform.
Around 1:30 in the morning, Officer Fogah and his partner responded to a radio call about an accident on the Grand Central Parkway in Queens. They arrived approximately five minutes after receiving the call. When they arrived, Officer Fogah observed two vehicles pulled up to the side of the road. He also observed an ambulance there.
Officer Fogah saw an individual on the floor by the vehicles, passed out and unresponsive. That individual was Mr. Gonzalez. Officer Fogah spoke to the driver of the other car that was involved in the crash. That other driver told Officer Fogah that Mr. Gonzalez rear-ended his car and appeared to be drunk. No specific basis was provided for why the other driver accused Mr. Gonzalez of appearing drunk.
Officer Fogah then saw that Mr. Gonzalez was "Narcan'd" by the ambulance personnel. Officer Fogah knows that Narcan is a device used to resuscitate someone who is "under the influence of drugs." (Tr. at 8). In his experience, there is no other time Narcan is used on an individual other than "when drugs are in the system." (Id.).
Mr. Gonzalez woke up and was then moved to a gurney to be transported in the ambulance to a hospital. When Mr. Gonzalez was helped onto the gurney, he was swaying and unsteady on his feet. The officers never administered a portable breath test or field sobriety test.
Once in the ambulance, the officers questioned Mr. Gonzalez. During this questioning, Mr. Gonzalez was in handcuffs. The officers did not read him his Miranda rights before questioning him. They asked him, "What happened?" He responded that he had something to drink earlier. Officer Fogah believes this was "[b]efore" he had formally arrested Mr. Gonzalez.
The ambulance then transported Mr. Gonzalez to Booth Memorial Hospital. Officer Fogah accompanied him there the entire way. Once arriving at Booth Memorial Hospital, they waited for the Intoxicated Driver Technician Unit ("IDTU") technician to arrive. Mr. Gonzalez then mentioned to Officer Fogah that he had drinks earlier that day, as well as a Percocet. These statements were not in response to any questions that the officers had posed.
The IDTU technician arrived and offered Mr. Gonzalez a chemical blood test. Mr. Gonzalez consented. After this test, Officer Fogah read Mr. Gonzalez his Miranda rights. Mr. Gonzalez waived those rights and answered various questions from the officer. He said he had been operating a motor vehicle, was coming from his mother's house, was going to his fiancée's house, and had been driving for about thirty minutes. When asked what he had been drinking, Mr. Gonzalez asked for a lawyer. At that point, the officers stopped questioning him.
Throughout his interactions with Mr. Gonzalez, Officer Fogah did not smell any alcohol. However, he observed that Mr. Gonzalez was uncooperative and had a pale-colored face and disarranged clothes. He found Mr. Gonzalez's balance to be sagging and "falling." He also observed that Mr. Gonzalez's speech was incoherent. Officer Fogah acknowledged that there are many reasons why someone's face may be pale and their balance swaying and sagging.
Officer Fogah explained that he arrested Mr. Gonzalez for violating V.T.L. § 1192[4]. He arrested Mr. Gonzalez for violating this provision "[b]ased on the Narcan that was used resuscitate him." (Tr. at 10).
CONCLUSIONS OF LAW
The defense challenges Mr. Gonzalez's arrest, arguing that the People failed to establish it was made upon probable cause of violating V.T.L. § 1192. "At a suppression hearing, it is the People's burden to come forward with evidence establishing, in the first instance, that the challenged conduct was legal." (People v. Levine, 72 Misc.3d 5, 7 [App. Term, 2d Dep't 2021]).
As an initial matter, the "arrest" here occurred when police handcuffed Mr. Gonzalez inside the ambulance, which was before they questioned him there. It does not necessarily matter when an officer declares a person under arrest for the police department's administrative purposes. As a matter of law, an arrest occurs when "an intrusion is of such magnitude that [an] individual's liberty of movement is significantly interrupted by police restraint." (People v. Jones, 172 A.D.2d 265 [1st Dep't 1991]). "'[H]andcuffs are generally recognized as a hallmark'" of an arrest. (United States v. Familetti, 878 F.3d 53 [2d Cir. 2017] [quoting United States v. Newton, 369 F.3d 659, 676 [2d Cir. 2004]]).
Vehicle and Traffic Law § 1192 criminalizes driving while impaired or intoxicated by alcohol or, in the case of § 1192[4], driving while impaired "from the ingestion of a drug listed in Public Health Law § 3306." (Levine, 72 Misc.3d at 7-8). In other words, Vehicle and Traffic Law § 1192 does not criminalize driving merely when one's abilities are impaired. Rather, it only criminalizes such driving when that impairment is caused from either alcohol consumption or "from the ingestion of a drug listed in Public Health Law § 3306." (Id.).
Thus, where an officer observes an impaired driver but does not yet possess a basis "to believe that the ingestion of a drug listed in Public Health Law § 3306" or alcohol was "the cause of defendant's... accident, or of defendant's [impaired] accident scene behavior," then they only have "reasonable suspicion" of a crime "which ha[s] not ripened to probable cause." (People v. Koszko, 57 Misc.3d 47, 50-51 [App. Term, 2d Dep't 2017]; see also Levine, 72 Misc.3d at 8 [in which the People established a driver's physical and mental impairment, but not that it was caused by "the ingestion of a drug listed in Public Health Law § 3306"]; People v. Jackson, 32 Misc.3d 139 [A], at *2 [App. Term, 2d Dep't 2011] ["The supporting deposition in the instant case fails to provide reasonable cause to believe that defendant was impaired by the use of any of the substances set forth in Public Health Law § 3306. Consequently, the accusatory instrument charging defendant with driving while ability impaired by drugs is jurisdictionally defective and must be dismissed."]).
The Appellate Term, Second Department's decision in People v. Koszko is instructive. (57 Misc.3d at 47-51). In the suppression hearing in that case, a police officer testified that he responded to a vehicle accident on a highway. (Id. at 48). Upon arriving, his observations clearly established that one of the drivers, Mr. Koszko, was impaired. (See id.). Mr. Koszko was "unable to respond to the officer's questions" and "required assistance to exit his vehicle and to enter an ambulance." (Id.). The other motorists at the scene accused Mr. Koszko of "appearing to be 'intoxicated.'" (Id.). And one motorist had observed Mr. Koszko's vehicle "being operated erratically, unable to maintain a lane and traveling on the grassy center median" before "colliding with another vehicle in the turning lane." (Id.). However, there was no odor-or any other specific evidence-of alcohol consumption. (See id.). As such, the officer arrested Mr. Koszko for violating V.T.L. § 1192[4]. (Id.).
The lower court granted the motion to suppress, finding no probable cause to arrest, and the Appellate Term affirmed. (Id. at 48-49). It found that "the arresting officer had no basis to believe that the ingestion of a drug listed in Public Health Law § 3306 was the cause" of the obvious impairment. (Id. at 50 [internal citations omitted]). "Absent from the suppression hearing was evidence of a pre-arrest admission, physical evidence of drug use, such as actual possession of drugs or associated paraphernalia, pre-arrest toxicological evidence, or even testimony by a trained observer as to the association between consumption of a drug listed in Public Health Law § 3306 and the physical manifestations of the same." (Id. at 50-51). Therefore, the officer did not have "probable cause" to arrest. (Id.)
People v. Levine, another decision from the Appellate Term, Second Department, is also instructive. (72 Misc.3d 5-9). In the suppression hearing in that case, the arresting officer testified that he responded to a vehicle accident on a parkway. (Id. at 6). Upon arriving, he observed a vehicle turned onto its side on the shoulder of the road. (Id.). The probable driver of the vehicle, Mr. Levine, was seated in the back of an ambulance on the scene. (Id. at 6-7). The officer observed Mr. Levine to have "slurred speech, glassy bloodshot eyes and poor motor coordination." (Id. at 7). Mr. Levine also failed several sobriety tests. (Id.). There was no indication of alcohol consumption, (see id. at 6-7), but the officer arrested Mr. Levine for violating V.T.L. § 1192[4]. The officer testified that he "received training with regard to the recognition of individuals impaired by drugs" and had "been involved in over 20 arrests involving driving while ability impaired by drugs." (Id.). He then testified that "he believed that defendant was impaired by a central nervous system (CNS) depressant." (Id. at 8).
The lower court granted the motion to suppress, finding no probable cause to arrest, and the Appellate Term again affirmed. (Id. at 9). While the officer had some minimal "training" in recognizing individuals impaired by drugs-"two days of lectures, PowerPoint slides, and videos"-there was "no testimony that any of the officer's training involved determining what drug or class of drugs was causing the impairment." (Id.). Thus, the officer did not have "probable cause" to believe the impairment specifically "resulted from the ingestion of a drug listed in Public Health Law § 3306." (Id. at 8-9).
The court now turns to this case. The question of probable cause is an objective one. (People v. Hinshaw, 35 N.Y.3d 427, 437-38 [2020]). What is relevant is "the sum of the [objective] information known to the police at the time of the warrantless arrest and without the benefit of hindsight." (Farquharson v. United Parcel Service, 202 A.D.3d 923, 926 [2d Dep't 2022] [internal quotation marks omitted]). In reviewing the People's prima facie case for probable cause to arrest, a court must look to the record about what the seizing officer knew.
In passing on whether there was probable cause for an arrest, the Court of Appeals "consistently [has] made it plain" that it "must appear to be at least more probable than not that a crime has taken place." (People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981]). "'Conduct equally compatible with guilt or innocence will not suffice.'" (Koszko, 57 Misc.3d at 49 [quoting People v. Vandover, 20 N.Y.3d 235, 237 [2012]]).
Here, just like in Levine and Koszko, the arresting officer responded to a vehicle accident and observed a probable driver, Mr. Gonzalez, clearly impaired. And just like in Koszko, the other driver accused Mr. Gonzalez of appearing drunk. Also like in Levine and Koszko, the critical issue here is not whether the officer reasonably believed Mr. Gonzalez to be probably impaired. Rather, it is whether he reasonably believed Mr. Gonzalez to be probably impaired in violation of V.T.L. § 1192-that is, impaired from alcohol consumption or "from the ingestion of a drug listed in Public Health Law § 3306." (See Levine, 72 Misc.3d at 8).
Although the officer arrested Mr. Gonzalez specifically for violating V.T.L. § 1192[4], which is the drug provision, the court must consider whether he had probable cause of violating any section of V.T.L. § 1192. "[T]he legality of an arrest... is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 1192." (People v. Hilker, 133 A.D.2d 986, 987-88 [3d Dep't 1987]; see also People v. Gingras, 22 Misc.3d 22, 23 [App. Term, 2d Dep't 2008] [same]). Thus, the court must also consider whether the arrest could be supported by the alcohol provisions of the statute, as well.
At the outset, there is no evidence the police observed anything indicating alcohol consumption before the arrest. The officer did not smell any alcohol; there was no evidence of alcohol at the scene or recovered from the car; there were no alleged admissions at the time; and while, like in Koszko, another driver accused Mr. Gonzalez of appearing drunk, the officer observed nothing at the scene that supported that claim (other than obvious impairment). Indeed, the officer ultimately arrested Mr. Gonzalez for violating the drug-related provision of V.T.L. § 1192, not the alcohol ones. Clearly, he did not believe the facts before him indicated alcohol consumption, either. (See Koszko, 57 Misc.3d at 50 [in which the arresting officer "could not attribute defendant's appearance and demeanor at the accident scene to the effects of alcohol consumption" and "it was the absence of such indicia that apparently persuaded him that the ingestion of a controlled substance was necessarily the cause"]).
Therefore, the question is whether the record of the officer's observations about Narcan are sufficient to sustain the arrest under V.T.L. § 1192[4]. As noted above, that provision criminalizes driving while ability impaired from "from the ingestion of a drug listed in Public Health Law § 3306." (Levine, 72 Misc.3d at 7-8; see also Koszko, 57 Misc.3d at 50-51 [same]). The officer articulates his probable cause to arrest Mr. Gonzalez for this offense "[b]ased on the Narcan that was used resuscitate him."
But the People elicited no testimony or evidence from Officer Fogah about "what drug or class of drugs" Narcan is used for. (See Levine, 72 Misc.3d at 9 [noting no testimony about the officer's training in impairment by drugs that could distinguish "what drug or class of drugs was causing the impairment"]). Instead, the People only elicited testimony that Narcan is "[a] device used to resuscitate someone who is under the influence of drugs," generally. (Tr. at 8 [emphasis added]; see id. ["It is only when drugs are in the system that Narcan will be used to resuscitate somebody."] [emphasis added]). As such, on the People's record, the court can conclude only that the officer reasonably believed that Mr. Gonzalez was probably under the influence of "drugs." But it cannot conclude anything about the critical issue-whether the officer reasonably believed it was "more probable than not" that Mr. Gonzalez was impaired "by a drug listed in Public Health Law § 3306 ." (Levine, 72 Misc.3d at 7-8 [emphasis added]). Perhaps that is because the officer could not have even testified to that. The record here is bare as to the officer's specific training or experience with Narcan, in identifying people impaired by any particular drugs or class of drugs, or even in conducting V.T.L. § 1192[4] arrests.
To be clear, the question is not whether Narcan is, in fact, usually used for a drug or class of drugs listed on Public Health Law § 3306. (Though even if that were the question, the record provides nothing on which the court could conclude that, either.) The question is whether this arresting officer -based on his knowledge and experience-reasonably believed that the use of Narcan probably suggested impairment by a listed drug. Recall: what is relevant is "the sum of the [objective] information known to the police at the time of the warrantless arrest and without the benefit of hindsight." (Farquharson, 202 A.D.3d at 926 [internal quotation marks omitted] [emphasis added]). Even if the court delved into a factfinding mission outside the record (which it cannot do), answering the question of what drugs or class of drugs Narcan is usually used for would do nothing to indicate whether this officer possessed that particular knowledge.
This is not to say that an officer's observation of ambulance personnel administering Narcan could never sustain a V.T.L. § 1192[4] arrest. It is to say that to sustain such an arrest upon that observation, the People must provide a sufficient record as to what the police knew. (See id.). An officer must explain why, based on their training and experience, they thought the use of Narcan indicated a driver was probably impaired "from the ingestion of a drug listed in Public Health Law § 3306"-and not merely from any drug. (Levine, 72 Misc.3d at 7-8). It is only upon that record that the court could determine whether the officer reasonably believed that the driver probably violated V.T.L. § 1192[4]. Here, the People failed to provide that record.
Accordingly, the People failed to meet their burden of establishing that the police arrested Mr. Gonzalez upon probable cause of violating V.T.L. § 1192. Therefore, the fruits of that arrest-including the C.P.L. § 710.30 noticed statements, police observations after the arrest, and the blood draw at the hospital-must be suppressed.
The remaining issues and motions are moot. Nonetheless, the court notes that it would have alternatively suppressed the first alleged statement and the blood test results under other theories of law, as well. As the People concede, Mr. Gonzalez's alleged statements in the ambulance were the product of un- Mirandized custodial interrogation and so must be suppressed. Moreover, the People failed to establish that the blood draw was carried out in conformity with V.T.L. § 1194. Under that statute, only some persons are "authorized to draw blood." (V.T.L. § 1194[4][a][1]). Those are:
(i) a physician, a registered professional nurse, a registered physician assistant, a certified nurse practitioner, or an advanced emergency medical technician as certified by the department of health; or (ii) under the supervision and at the direction of a physician, registered physician assistant or certified nurse practitioner acting within his or her lawful scope of practice, or upon the express consent of the person eighteen years of age or older from whom such blood is to be withdrawn: a clinical laboratory technician or clinical laboratory technologist licensed pursuant to article one hundred sixty-five of the education law; a phlebotomist; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law.(Id.). Here, the People failed to elicit any testimony whatsoever about who drew Mr. Gonzalez's blood. As such, they failed to establish it was drawn by an authorized person. If it were not moot, the remedy there would be suppression, as well. (E.g., People v. Miller, 17 A.D.3d 708 [3d Dep't 2008]; People v. Reynolds, 307 A.D.2d 391 [3d Dep't 2003]; People v. Ebner, 195 A.D.2d 1006 [4th Dep't 1993]).
The foregoing constitutes the decision and order of the court.