Opinion
2014NA008748
03-30-2015
The People of the State of New York, v. Tony McClam, Defendant.
Hon Madeline Singas, Acting Nassau County District Attorney Michael Degarabedian, Esq, Attorney for Defendant
Hon Madeline Singas, Acting Nassau County District Attorney Michael Degarabedian, Esq, Attorney for Defendant
The Defendant is charged with two (2) counts of criminal possession of marijuana in the fifth degree, driving while ability impaired by a drug, driving while ability impaired by the combined influence of drugs and/or alcohol and three (3) counts of failing to stop at a stop sign, in violation of PL § 221.10(2) and VTL §§ 1192(4), 1192(4a) and 1172(a), respectively.
On March 9, 2015, pursuant to a stipulation of the parties, this court (Engel, J.) conducted a Mapp/Dunaway/Huntley/refusal hearing, to determine issues involving probable cause for the Defendant's arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, suppression of statements allegedly made by the Defendant and the Defendant's refusal to submit to a chemical test of his blood.
Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979); People v. Huntely, 15 NY2d 72, 255 N.Y.S.2d 838 (1965)
At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 AD3d 866, 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 N.Y.S.2d 696 (2006) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, supra.; People v. Valeruis, 31 NY2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625 (1977). Once the prosecution has met this burden, the Defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) Similarly, before evidence of the Defendant's refusal to submit to a chemical test will be admissible at trial, the People bear the burden of establishing that the Defendant "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." VTL §§ 1194(2)(f)
The People attempt to meet their burden through the testimony of Police Officer Bobby G. Ford, Police Officer Michael LaSalla and Police Officer Gregory Nicholson. The court has had the opportunity to listen to the testimony of these witness, view their demeanor on the witness stand and to view a dash cam video recording of the police interaction with the Defendant at the time of the stop of his vehicle. Having the benefit of the on scene recording, the court is able to see that Office Ford's recollection of the sequence and/or happening of certain events is inconsistent with some of the events which occurred at the time of the stop of the Defendant's vehicle. These instances notwithstanding, the court finds no reason to question the veracity of any of the officers, and makes the following findings of fact based upon the evidence which the court finds credible.
FINDINGS OF FACT
Officer Ford has been employed by the Village of Freeport Police Department for the past nine (9) years and four (4) months. Prior thereto, he was a member of the New York City Police Department for almost twelve (12) months. Officer Ford's training at both the New York City and Nassau County Police Academies included training in the identification of narcotics and marijuana, including their appearance and packaging, as well as the signs and detection of impairment caused by these substances. In his career as a police officer Officer Ford has made over one thousand (1,000) arrests for the possession of marijuana and has been involved in more than twenty (20) driving while intoxicated or driving while ability impaired investigations.
On May 3, 2014, at approximately 8:50 p.m. Officer Ford was on patrol, in uniform, alone in a marked police vehicle, in the vicinity of Hamilton Street and Miller Avenue, in the Village of Freeport. Office Ford was facing westbound on Hamilton Street approximately fifty (50) feet from the corner of Hamilton Street and Miller Avenue. At that time Officer Ford observed a tan vehicle traveling northbound on Miller Avenue fail to stop at the stop sign located on that corner. Officer Ford turned northbound onto Miller Avenue and followed the tan vehicle, approximately one-half (½) block behind.
As testified to by Officer Ford, and confirmed by the dash cam video, the tan vehicle proceed on Miller Avenue, failing to stop for a stop sign at Miller Avenue and Adams Street, and again failing to stop at a stop sign at Miller Avenue and Front Street. At this latter intersection the video recording clearly shows the driver of the tan vehicle applying the brakes as the vehicle approached the intersection, coming to what is colloquially referred to as a "rolling stop," but never actually stopping the vehicle. It is at this point Office Ford activated his forward overhead lights and siren, signaling the tan vehicle to pull over. Although there was room for the tan vehicle to pull over to the right, it first came to a stop in the middle of Miller Avenue. After stopping, the tan vehicle then suddenly pulled forward a few feet and slightly to the right; although, it did not pull over to the right curb.
Officer Ford approached the tan vehicle from the driver's side, where he observed the Defendant, the lone occupant of the vehicle, in the driver's seat, behind the steering wheel. Officer Ford asked the Defendant for his license, registration and insurance card. As observed on the video recording, the Defendant handed four (4) different documents to the officer, one (1) at a time, over the course of approximately forty five (45) seconds. During this time, Officer Ford smelled the strong odor of marijuana and saw a few zip lock bags, with a brown leafy substance, which appeared to him to be marijuana, on the Defendant's lap. He also observed the Defendant to have bloodshot watery eyes, dried white lips and to appear to be unsure that Officer Ford was a police officer or what was going on. Upon observing the zip lock bags on the Defendant's lap, Officer Ford asked the Defendant, "Am I being punked? What's the deal with this." Consistent with this testimony, on the video recording, Officer Ford can be seen twice gesturing at or into the driver's window towards the Defendant. In response, the Defendant stated that he had smoked marijuana and that the marijuana was for personal use. Officer Ford then told the Defendant to stay where he was and returned to his police vehicle to call for assistance.
In response to Officer Ford's call for assistance Sargent Rahn arrived on the scene about three (3) minutes later. Officer Ford and Sgt. Rahn approached the driver's side of the Defendant's vehicle and told the Defendant to get out of the vehicle. The Defendant did so, without assistance, and stood in front of Officer Ford. At that time Officer Ford smelled the strong odor of marijuana coming from the Defendant. He did not smell an alcoholic beverage on the Defendant. Officer Ford further observed the Defendant to have watery bloodshot eyes and "dry mouth." At approximately 9:00 a.m., Officer Ford immediately reached into the Defendant's left front jacket pocket, recovering a bag of marijuana, and then had the Defendant turn around so that he could be handcuffed. A bag of marijuana was also recovered from the Defendant's sleeve at that time. Officer Ford asked the Defendant if there was anything else in the vehicle. The Defendant did not respond. Officer Ford asked the Defendant if he would submit to standardized field sobriety tests ("SFSTs"); and, the Defendant said no. Officer Ford then placed the Defendant in the rear of his police vehicle.
Sgt. Rahn called for additional units to respond to the scene. Three (3) to four (4) other officers arrived in response. Officer Ford and some of the other officers searched the interior and trunk of the Defendant's vehicle. At that time Officer Ford found a "brick" of cash totaling approximately fifteen thousand ($15,000.00) dollars in the center console of the vehicle and suitcases, boxes and bags in the trunk. Officer Ford did not open these last three (3) items. The Defendant was then moved to a different patrol vehicle and, at approximately 9:40 p.m., driven first to the station house in Freeport and, shortly thereafter, to the central testing section ("CTS") of the Nassau County Police Department headquarters, arriving there just after 10:00 p.m.
At approximately 9:40 p.m., shortly after the Defendant was removed from the scene, Officer LaSalla, a member of the Highway Patrol K-9 Unit, and his partner, "Jax," arrived on the scene. Beginning at the front driver's side fender of the Defendant's vehicle, Officer LaSalla commanded Jax to "find drugs," and Jax began sniffing under the exterior of the Defendant's vehicle. When he reached the driver's door Jax's behavior began to change, he stood and put his head in the passenger's window on the driver's side and then went into a "passive alert" by sitting. Officer LaSalla opened the vehicle's door and sent Jax into the vehicle. Jax, after entering the vehicle, gave an "alert" signal at the rear of the gear shift. Officer LaSalla then removed Jax from the vehicle's interior, notified other officers on the scene, and had Jax continue to examine the vehicle. At the trunk Jax stood into the trunk, placed his nose on one of the black bags in the trunk and signaled to Officer LaSalla, who advised the other officers on the scene. Jax then finished his examination of the Defendant's vehicle without incident.
After putting Jax back in his vehicle, a search of the gear shift area revealed a hidden compartment which contained a clear zip lock bag containing a brown leafy substance believed to be marijuana. A search of the black bag in the trunk revealed approximately $18,000.00 in United States currency.
At approximately 10:00 p.m., at CTS, Officer Ford read the Defendant his Miranda rights. When asked if he understood those rights, the Defendant would neither respond nor sign the card from which the rights were read. When asked if he was willing to answer questions the Defendant again would neither respond nor sign the rights card.
At approximately 10:20 p.m., at CTS, Officer Nicholson, a Drug Recognition Expert, became involved in this investigation. At approximately 10:39 p.m. the Defendant asked Officer Nicholson why he, the Defendant, was at CTS. Officer Nicholson explained that in a few minutes he, the Defendant, would be asked to submit to a breath test to test for alcohol, if the Defendant agreed. The Defendant then stated, "I smoked four (4) hours ago."
At approximately 10:45 p.m. Officer Ford, in the presence of Officer Nicholson, asked the Defendant if he would submit to a chemical test of his breath. The Defendant stated, "Yes" and, thereafter, provided a breath sample. The chemical test of the Defendant's breath resulted in a reading of the Defendant's blood alcohol concentration as .03%. Following that test, at approximately 11:02 p.m. the Defendant was asked if he would submit to a chemical test of his blood. In response, the Defendant said "No," wrote "No" and signed his name on the request form. At approximately 11:03 p.m. Officer Ford read the Defendant a warning concerning the consequences of refusing to submit to the test, as follows:
You have been asked to submit to a chemical test. If you refuse to submit to the test, or any portion thereof, it will result in the immediate suspension and subsequent one year minimum revocation of your driver's license or operating privilege whether or not you are found guilty of the charges for which you have been arrested. In addition, your refusal to submit to a test, or any portion thereof, can be introduced as evidence against you at any trial proceeding or hearing resulting from the arrest.
At approximately 11:04 p.m. Officer Ford again asked the Defendant if he would submit to a chemical test of his blood. In response, the Defendant again wrote "No" and signed his name on the request form.
INTIAL STOP OF VEHICLE
It is well established that "the stopping of an automobile by the police constitutes an impermissible seizure (citations omitted)." People v. Sobotker, 43 NY2d 559, 563, 402 N.Y.S.2d 993, 996 (1978); See also: People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67 (1975) "For a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception ...." People v. Banks, 85 NY2d 558, 562, 626 N.Y.S.2d 986, 988 (1995) cert. den. 516 U.S. 868, 116 S.Ct. 187 (1995); See also: People v. Moore, 6 NY3d 493, 814 N.Y.S.2d 567 (2006) As noted in People v. Washburn, 309 AD2d 1270, 1271, 765 N.Y.S.2d 76, 77 (4th Dept. 2003):
[T]he Court of Appeals has made it abundantly clear' (Sobotker, 43 NY2d at 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218) that police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' ( People v. Spencer, 84 NY2d 749, 753, 622 N.Y.S.2d 483, 646 N.E.2d 785, cert. denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192; see People v. May, 81 NY2d 725, 727, 593 N.Y.S.2d 760, 609 N.E.2d 113) or where the police have probable cause to believe that the driver * * * has committed a traffic violation" ( People v. Robinson, 97 NY2d 341, 350, 741 N.Y.S.2d 147, 767 N.E.2d 638).
See also: People v. Davis, 103 AD3d 810, 962 N.Y.S.2d 174 (2nd Dept. 2013); People v. Sluska, 15 AD2d 421, 798 N.Y.S.2d 55 (2nd Dept. 2005); People v. Allen, 89 AD3d 742, 932 N.Y.S.2d 142 (2nd Dept. 2011) app. dis. 19 NY3d 993, 951 N.Y.S.2d 468 (2012)
The court finds Officer Ford's testimony that the Defendant proceeded northbound on Miller Avenue and failed to stop at three (3) stop signs credible. Moreover, the officer's testimony is corroborated by the dash cam video which was activated after the Defendant failed to stop at a stop sign at the intersection of Miller Avenue and Hamilton Avenue, and clearly shows the Defendant failing to stop at two (2) additional stop signs. Based thereon, there is no question that Officer Ford had probable cause to believe that the Defendant violated the Vehicle and Traffic Law, and lawfully stopped the Defendant's vehicle.
PROBABLE CAUSE TO ARREST
"Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense (citations omitted)." People v. Wright, 8 AD3d 304, 306, 778 N.Y.S.2d 59, 62 (2nd Dept.2004); See also: CPL § 70.10; People v. Attebery, 223 AD2d 714, 637 N.Y.S.2d 194 (2nd Dept.1996) From the evidence presented it "need merely appear more probable than not that a crime has taken place and that the one arrested is its perpetrator (citation omitted)." People v. Hill, 146 AD2d 823, 824, 536 N.Y.S.2d 566, 568 (3rd Dept.1989) lv. den. 73 NY2d 1016, 541 N.Y.S.2d 770 (1989); See also: People v. Gingras, 22 Misc 3d 22, 871 N.Y.S.2d 812 (App.Term 9th & 10th Jud. Dists. 2008) Probable cause does not require the same quantum of proof as needed to obtain a conviction. People v. McRay, 51 NY2d 594, 435 N.Y.S.2d 679 (1980); People v. Mercado, 68 NY2d 874, 508 N.Y.S.2d 419 (1986); People v. Rivera, 166 AD2d 678, 561 N.Y.S.2d 268 (2nd Dept.1990) The required quantum of proof does not even rise to the level necessary to establish a prima facie case. Villalobos v. County of Nassau, 15 Misc 3d 135(A), 839 N.Y.S.2d 437 (App.Term 9th & 10th Jud. Dists. 2007); People v. Wright, supra., People v. Hill, supra.; People v. Gingras, supra.
Drug Possession
The court credits Officer Ford's testimony to the effect that when he approached the Defendant's vehicle he observed zip lock bags of marijuana on the Defendant's lap. The court does not find such testimony to be "incredible, patently tailored to nullify constitutional objections, or otherwise unworthy of belief (citations omitted)." People v. Jarvis, 117 AD3d 969, 970, 985 N.Y.S.2d 889, 890 (2nd Dept. 2014) "Nothing about the officer's testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self-contradictory (citations omitted)." People v. James, 19 AD3d 617, 618, 798 N.Y.S.2d 483, 484 (2nd Dept. 2005); See also: People v. Glenn, 53 AD3d 622, 861 N.Y.S.2d 781 (2nd Dept. 2008)
Although it may seem counterintuitive to us, sitting in the comfort of our office chairs, for a police officer to leave a suspect sitting alone in a vehicle, with marijuana on his lap, while the officer returns to his patrol vehicle for a few minutes to call for and to await the arrival of assistance, under the circumstances presented it was not unreasonable for Officer Ford to place his safety above the possibility that the Defendant would flee or destroy evidence. While waiting two (2) to three (3) minutes for backup to arrive the Defendant remained in front of Officer Ford and visible to him, should the Defendant attempt to leave the scene or toss the marijuana out of the vehicle. At the same time, Officer Ford was able to make sure that the situation remained calm and did not escalate while he was alone on a dark street with the Defendant. Additionally, while one might logically think that the Defendant would have attempted to secrete the marijuana on his lap as Officer Ford approached, his failure to do so may reasonably be explained by the general aloofness or malaise displayed by the Defendant, among other signs of possible impairment.
Based upon the foregoing, Officer Ford had probable cause to arrest the Defendant for possession of marijuana. See: In the Matter of Tonay C., 119 AD3d 560, 987 N.Y.S.2d 893 (2nd Dept. 2014); People v. Mitchell, 125 AD3d 790, ___ N.Y.S.2d ___ (2nd Dept. 2015); People v. Condon, 100 AD3d 920, 954 N.Y.S.2d 212 (2nd Dept. 2012)
Driving While Impaired by a Drug
The absence of SFSTs do not preclude a finding that Officer Ford also had probable cause to arrest the Defendant for driving while ability impaired by a drug. Indeed, in countless cases involving arrests for violations of VTL § 1192 probable cause to arrest has been properly found based upon an officer's observations and a defendant's admissions, without SFSTs having been conducted. See: People v. Cruz, 48 NY2d 419, 423 N.Y.S.2d 625 (1979) [constitutionality of the statute upheld and matter remanded based upon erratic driving, passing a red light, the strong odor of an alcoholic beverage, watery bloodshot eyes, slurred speech, and an admission to having consumed alcohol]; People v. Shapiro, 141 AD2d 577, 529 N.Y.S.2d 186 (2nd Dept. 1988) lv. den. 72 NY2d 1049, 534 N.Y.S.2d 949 (1988) [erratic driving, dilated pupils, disheveled hair, mussed clothing and fidgety behavior sustained probable cause to arrest for driving while ability impaired by a drug]; People v. Blajeski, 125 AD2d 582, 509 N.Y.S.2d 648 (2nd Dept. 1986) [police officer's observations of bloodshot eyes, slurred speech and odor of alcohol on the defendant's breath provided probable cause]; People v. Robbins, 132 Misc 2d 653, 504 N.Y.S.2d 1006 (Justice Ct. Town of Greenburgh 1986) [defendant's failure to stop at a stop sign, glassy red eyes, unsteadiness on feet, odor of an alcoholic beverage and slurred speech sufficient to sustain charge of driving while ability impaired]; Clancy v. Kelly, 7 AD2d 820, 180 N.Y.S.2d 923 (3rd Dept. 1958) [observation of subject's voice, speech, eyes, breath and gait provided reasonable grounds to believe subject was intoxicated]; People v. Troche, 162 AD2d 483, 556 N.Y.S.2d 403 (2nd Dept. 1990) lv. den. 76 NY2d 897, 561 N.Y.S.2d 559 (1990) [erratic operation, bloodshot eyes, slurred speech and the odor of an alcoholic beverage on defendant's breath provided probable cause to arrest]; People v. Tieman, 112 AD3d 975, 978 N.Y.S.2d 67 (2nd Dept. 2013) lv. den. 23 NY3d 1043, 993 N.Y.S.2d 257 (2014) [erratic operation, bloodshot eyes, slurred speech and the odor of an alcoholic beverage on defendant's breath provided probable cause to arrest]; People v. Poje, 270 AD2d 649, 706 N.Y.S.2d 733 (3rd Dept. 2000) [defendant's impaired speech, needing assistance to stand and the smell of alcoholic beverage on his breath provided probable cause to arrest]; People v. Gingras, 22 Misc 3d 22, 871 N.Y.S.2d 812 (App. Term 9th & 10th Jud. Dists. 2008) [open containers of alcohol in the defendant's vehicle, slurred speech, bloodshot eyes and the odor of an alcoholic beverage on the defendant's breath provided probable cause to arrest for driving while ability impaired]; People v. Rich, 25 Misc 3d 126(A), 901 N.Y.S.2d 909 (App. Term. 9th & 10th Jud. Dists. 2009) [observations of defendant's impaired motor coordination, the strong odor of an alcoholic beverage, slurred speech and admission to having consumed beer justified the defendant's arrest for driving while ability impaired]
The result in the matter sub judice is the same. Officer Ford has extensive training and experience through the New York City Police Department, the Nassau County Police Department Police Academy and the Freeport Police Department in the identification, packaging, enforcement and effects of narcotics and marijuana. This expertise, along with his observations of the Defendant driving through three (3) stop signs, smelling of the strong odor of marijuana, having what appeared to be bags of marijuana on his lap, admitting to having smoked marijuana earlier, displaying bloodshot watery eyes and dried white lips, and appearing to be aloof and unsure of what was going on provided Officer Ford with probable cause to believe that the Defendant operated his motor vehicle while impaired by a drug.
SEARCH
"The same circumstances that furnished the probable cause to arrest the defendant also provided the officer with probable cause to believe that the car might contain more marijuana. Thus, the officer acquired the right to conduct a warrantless search of the entire car, including the trunk. (citations omitted)." People v. Morgan, 10 AD3d 369, 781 N.Y.S.2d 652, 653 (2nd Dept. 2004) [after vehicle stop for parking violation, the odor of marijuana emanating from the defendant's vehicle, the observation of marijuana cigarettes and admission to having smoked marijuana provided probable cause to search the defendant's vehicle]; See also: People v. Hughes, 68 AD3d 894, 890 N.Y.S.2d 121 (2nd Dept. 2009) [strong odor of marijuana emanating from vehicle, observation of some green vegetation on the defendant's passenger's shirt, and defendant's admission to having smoked marijuana earlier provided probable cause to search the defendant's vehicle, including the trunk]; People v. George, 78 AD3d 728, 910 N.Y.S.2d 508 (2nd Dept. 2010) [detection of the odor of burnt marijuana emanating from the defendant's vehicle and the defendant's admission to having smoked marijuana earlier provided probable cause for the warrantless search of the Defendant's vehicle]; People v. Cirigliano, 15 AD3d 672, 791 N.Y.S.2d 584 (2nd Dept. 2005) lv. den. 5 NY3d 827, 804 N.Y.S.2d 41 (2005) [arresting officer's extensive experience in the detection of marijuana, along with the odor of marijuana coming from the vehicle provided probable cause for the search of the vehicle]; People v. Cosme, 70 AD3d 1364, 893 N.Y.S.2d 791 (2010) lv. den. 14 NY3d 886, 903 N.Y.S.2d 775 (2010) [following lawful traffic stop, the officer's detection of the odor marijuana provided probable cause for the warrantless search of the vehicle]; People v. John, 119 AD3d 709, 988 N.Y.S.2d 885 (2nd Dept. 2014) [following lawful traffic stop, the officer's detection of the odor marijuana and observation of clear plastic bag in ashtray provided probable cause for the warrantless search of the vehicle]
"Similarly, a warrant is unnecessary to search the operator of the vehicle where there is probable cause to believe that he is guilty of a crime, rather than merely a simple traffic infraction' (citation omitted)." People v. Chestnut, 43 AD2d 260, 351 N.Y.S.2d 26, 28 (3rd Dept. 1974) aff'd 36 NY2d 971, 377 N.Y.S.2d 564 (1975) See also: People v. Virges, 118 AD3d 1445, 987 N.Y.S.2d 783 (4th Dept. 2014) ["When the police officer smelled marihuana, he had probable cause to search defendant and the vehicle for contraband (citations omitted)."]; People v. Black, 59 AD3d 1050, 1051, 872 N.Y.S.2d 791, 972 (4th Dept. 2009) ["once the officers smelled marihuana, they had probable cause to search the vehicle and its occupants for drugs"]; People v. Hanson, 5 Misc 3d 67, 69, 785 N.Y.S.2d 825, 827 (App. Term 9th & 10th Jud. Dists. 2004) ["It is well settled that the smell of marijuana alone is sufficient to provide trained and experienced police officers in the area of narcotics probable cause to search a vehicle and its occupants"]
STATEMENTS
It is well established that "both the elements of police custody' and police interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda." People v. Huffman, 41 NY2d 29, 33, 390 N.Y.S.2d 843, 846 (1976); See also: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966); People v. Berg, 92 NY2d 701, 685 N.Y.S.2d 906 (1999)
At the time Officer Ford approached the Defendant's vehicle and observed bags of marijuana on the Defendant's lap, the Defendant had just been stopped for committing three (3) traffic infractions. At this juncture the stop was nothing more than a temporary roadside detention pursuant to a routine traffic stop, which is well recognized not to be custodial in nature. People v. Myers, 1 AD3d 382, 766 N.Y.S.2d 581 (2nd Dept. 2003) lv. den. 1 NY3d 631, 777 N.Y.S.2d 30 (2004); People v. Parris, 26 AD3d 393, 809 N.Y.S.2d 176 (2nd Dept. 2006) lv. den. 6 NY3d 851, 816 N.Y.S.2d 757 (2006); People v. Gutierrez, 13 AD3d 268, 787 N.Y.S.2d 266 (1st Dept. 2004)
Following this lawful traffic stop, even if Officer Ford's rather spontaneous question posed to the Defendant, "Am I being punked; what's the deal with this," referring to the marijuana on the Defendant's lap, is deemed an interrogation, in the absence of custody at that time, there was no requirement that the Defendant have been advised of his Miranda rights before the question was posed. Moreover, there is nothing in this record to suggest that, in responding to that question, " the defendant's will [was] overborne and his capacity for self-determination critically impaired,' (People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318 [1977], quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed. 1037 [1961])." People v. White, 10 NY3d 286, 293, 856 N.Y.S2d 534, 538 (2008) To the contrary, the Defendant's response to Officer Ford was voluntarily made, without any coercion or provocation by the police.
Similarly, while there is no question that the Defendant was in custody at the time he made the statement to Officer Nicholson, "I smoked four (4) hours ago," this statement was not the result of any interrogation. The statement was spontaneously made by the Defendant, without any coercion or provocation, when, in response to his own inquiry, he was informed that he was going to be asked to submit to a chemical test of his breath to test for alcohol. "Additionally, since the search of the defendant's vehicle and his arrest were lawful, [this] subsequent statement to the police cannot be deemed the fruit of the poisonous tree subject to the exclusionary rule." People v. John, supra. at 710, 988 N.Y.S.2d 885 (2nd Dept. 2014); See also: People v. George, supra.
While the People notified the Defendant, pursuant to CPL § 710.30, that they intend to offer at the time of trial statements allegedly made to a Lieutenant Lewis at CTS, at 5:35 a.m., the People failed to produce any evidence concerning these statements or the circumstances under which they were allegedly made.
REFUSAL
The Defendant raises two (2) arguments as to why, in his opinion, his refusal to submit to a chemical test of his blood should be suppressed. The first is that he was not requested to submit to a chemical test of his blood until more than two (2) hours after his arrest. The second is that the warnings read to him pursuant to VTL § 1194(2)(f), before he was requested a second time to submit to a chemical test of his blood, only made reference to a request to submit to a single chemical test, not multiple tests; and, he had already submitted to a chemical test of his breath.
The Defendant's first argument is without merit. The fact that the Defendant was not requested to submit to a chemical test of his blood until more than two (2) hours had passed since the time of his arrest does not affect the admissibility at trial of evidence of the Defendant's refusal. Vehicle and Traffic Law § 1194, provides, in pertinent part:
2. Chemical tests. (a) When authorized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer:
(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for any such violation; ..., (b) Report of refusal. (1) If: (A) such person having been placed under arrest; ... and having thereafter been requested to submit to such chemical test and having been informed that the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked,... , shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested or detained, refuses to submit to such chemical test or any portion thereof, ... , the test shall not be given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made. (f) Evidence. Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.
In 1981 the Appellate Division, Fourth Department, in People v. Brol, 81 AD2d 739, 740, 438 N.Y.S.2d 424 (4th Dept. 1981), set forth a bright line evidentiary rule holding that "[u]nless the test is taken within the two-hour limit, [ See: VTL § 1194] ..., the results are not competent evidence and may not be received in evidence against the operator (citations omitted)." The Defendant's argument seeks to extend this rule to refusals to submit to chemical tests requested after the two hour limit has expired. As will be discussed hereinafter, however, the bright line rule set down in Brol, id. has been overruled, sub silentio, by the Court of Appeals and subsequent Fourth Department decisions.
In People v. Atkins, 85 NY2d 1007, 1009, 630 N.Y.S.2d 965, 966 (1995) the Court of Appeals recognized that "Defendant's contention that the two-hour limitation in section 1194(2)(a) was intended by the Legislature to be an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver's consent, is unpersuasive." Harkening back to People v. Ward, 307 NY 73, 120 N.E.2d 211 (1954), which drew a distinction between driver's who were deemed to have consented to a chemical test and those who voluntarily agree to take the test, the court held, "the two-hour limitation contained in Vehicle and Traffic Law § 1194(2)(a) has no application ... where, ... , defendant expressly and voluntarily consented to administration of the blood test." People v. Atkins, supra. at 1009, 630 N.Y.S.2d 965, 966 (1995) In People v. Zawacki, 244 AD2d 954, 665 N.Y.S.2d 172 (4th Dept.1997), citing Atkins, supra., the Fourth Department altered its holding in Brol, supra., recognizing "that the two-hour limit is inapplicable to chemical tests administered pursuant to defendant's actual consent (citation omitted)." The Fourth Department reiterated this holding in People v. Hoffman, 283 AD2d 928, 725 N.Y.S.2d 494 (4th Dept. 2001) It is worth noting that here in the Second Department, nine (9) years before the Court of Appeals' decision in Atkins, supra., the Appellate Division held "The requirement that the blood sample be obtained within two hours after arrest, ..., is relevant only with regard to blood samples obtained in cases where no express consent has been given." People v. Mills, 124 AD2d 600, 601, 507 N.Y.S.2d 743, 744 (2nd Dept.1986) This holding has been reiterated time and again in this department. See: People v. Dixon, 149 AD2d 75, 543 N.Y.S.2d 993 (2nd Dept. 1989); People v. Stelmach, 191 AD2d 733, 595 N.Y.S.2d 509 (2nd Dept.1993); People v. Casimiro, 308 AD2d 456, 764 N.Y.S.2d 198 (2nd Dept. 2003) app. den. 1 NY3d 539, 775 N.Y.S.2d 244 (2003)
Consistent with the foregoing is the fact that VTL § 1194(2)(f), which provides for the evidentiary use of a defendant's refusal, makes no mention of a time limitation, two (2) hours or otherwise, within which the warnings must be read, and only requires "a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." Given the fact that Atkins, supra. permits the evidentiary use of the results of a chemical test given more than two (2) hours after arrest, as noted in People v. Ward, 176 Misc 2d 398, 403, 673 N.Y.S.2d 297, 301 (Sup. Ct. Richmond Co.1998), to find a refusal made more than two (2) hours after an arrest inadmissible would render "[t]he offer of the chemical test sanctioned by Atkins ... a mere gesture." Similarly, in People v. Coludro, 166 Misc 2d 662, 667, 634 N.Y.S.2d 964, 968 (N.Y.City Crim.Ct., 1995) the court held that "the defendant's refusal should not be suppressed merely because the refusal occurred more than two hours after arrest (citation omitted)." Likewise, in People v. Robinson, 82 AD3d 1269, 920 N.Y.S.2d 162, 163 (2nd Dept. 2011) lv. den. 17 NY3d 800, 929 N.Y.S.2d 108 (2011) the court clearly held:
There is no merit to the defendant's contention that evidence of his refusal to submit to a blood test, which occurred more than two hours after his arrest, was improperly admitted into evidence. Where, as here, the person is capable, but refuses to consent, evidence of that refusal, as governed by Vehicle and Traffic Law § 1194(2)(f), is admissible into evidence regardless of whether the refusal is made more than two hours after arrest (citations omitted).
The Defendant's second argument is equally without merit. As previously indicated, VTL § 1194(2)(a) provides, in pertinent part, "Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, ...." Additionally, the refusal warnings provided for in VTL § 1194(2)(f) need only be read to a defendant when he or she refuses a request to submit to any of the enumerated chemical tests.
In the matter sub judice, in accordance with the protocol of the Nassau County Police Department, the Defendant was initially requested to submit to a chemical test of his breath. The Defendant consented to this test; and, there was no reason for him to have been advised of the warnings provided for in VTL § 1194(2)(f) prior to that test's completion.
Following completion of the chemical test of the Defendant's breath, he was asked to submit to a chemical test of his blood. In response to this request the Defendant stated and wrote "No," and then signed his name. It was at this point, for the first and only time, the Defendant was read the warnings provided for in VTL § 1194(2)(f). Thereafter, the Defendant again stated and wrote "No," and signed his name to that refusal form.
Under these circumstances the court finds it incredible to believe that the Defendant thought that the refusal warnings read to him after he consented to a breath test, and when he was being asked to submit to a blood test, referred to anything other than the chemical test of his blood. The court finds "that the defendant was given clear and unequivocal warning of the effect of his refusal to submit to a [chemical test of his blood], and that he persisted in his refusal to take [that] test (citations omitted)." People v. Cousar, 226 AD2d 740, 741, 641 N.Y.S.2d 695 (2nd Dept. 1996) lv. den. 88 NY2d 983, 649 N.Y.S.2d 389 (1996); See also: People v. O'Rama, 78 NY2d 270, 574 N.Y.S.2d 159 (1991) To the extent that the Defendant seeks to offer the fact that he was requested to submit to two (2) different chemical tests as his "innocent explanation" for refusing the second test, he is free to so argue at the time of trial. See: People v. Thomas, 46 NY2d 100, 412 N.Y.S.2d 845 (1978)
Based upon all of the foregoing, the Defendant's motion to suppress is granted to the limited extent of suppressing the statements allegedly made by the Defendant to a Lieutenant Lewis at CTS, at 5:35 a.m, as disclosed in the noticed served by the People pursuant to CPL § 710.30, and is denied in all other respects.
This constitutes the decision and order of the court.
Dated: Hempstead, New York
March 30, 2015
___________________________
ANDREW M. ENGEL