Opinion
No. 2016QN009031.
07-08-2016
The PEOPLE of the State of New York, Plaintiff, v. Raimundo O. NIEVES, Defendant.
Richard A. Brown, District Attorney, Kew Gardens (Graham Amodeo of counsel), for the People. The Legal Aid Society, Kew Gardens (Peter Shapiro of counsel), for the defendant.
Richard A. Brown, District Attorney, Kew Gardens (Graham Amodeo of counsel), for the People.
The Legal Aid Society, Kew Gardens (Peter Shapiro of counsel), for the defendant.
ALTHEA E. DRYSDALE, J.
Defendant is charged with reckless driving (Vehicle and Traffic Law § 1212 ), operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[3] ); overtaking a Vehicle on the left (Vehicle and Traffic Law § 1163–c) and an equipment violation of not having at least two headlights lit (Vehicle and Traffic Law § 375[2][a] [1] ).
Under Vehicle and Traffic Law § 375(2)(a)(1), every motor vehicle “driven upon a public highway during the period from one-half hour after sunset to one-half hour before sunrise ... shall display ... at least two lighted head lamps on the front, one on each side, having light sources of equal power.”
On June 27, 2016, a Mapp/Cruz/Dunaway /Refusal hearing was held before this court. Police Officer James Droge testified. Based on his credible testimony, the court makes the following findings of fact.
Findings of Fact
On February 26, 2016, at around 3:30am Police Officer James Droge of the New York Police Department was in uniform in a marked police vehicle. The officer observed a red SUV Nissan Pathfinder driving without headlights. The officer pulled behind the subject vehicle and noticed that the vehicle did not have any lights lit anywhere. The officer observed the subject vehicle overtaking slower vehicles from the left side. In order to pass those slower vehicles, the subject vehicle had to swerve over the double yellow line. The officer pulled over the subject vehicle. The officer approached the vehicle on the driver's side. The defendant was the only person in the vehicle. The officer asked the defendant for his license and registration and through the open window smelled alcohol on the defendant's breath. Additionally, that the defendant had bloodshot, blurry eyes and his speech was slurred. The defendant was asked to exit the vehicle and the officer noticed that the defendant was unsteady on his feet. The defendant was given a portable breath test. The device used had not been calibrated in months. Nevertheless, the defendant registered over a 0.1 blood alcohol content (BAC). The defendant was transported to the Intoxicated Drivers Testing Unit of the 112 precinct.
During the hearing, a video that memorialized the defendant's encounter with the testing officer was played. The entire exchange took place in about two minutes: the officer announced the start time as 5:43 am and the ending time as 5:45am. When the defendant was asked if he was consenting to a breath test, the defendant shook his head side-to-side and stated: “Until I speak to my lawyer, not—.” The officer interrupted and asked the defendant if he was consenting: “yes or no.” The defendant replied: “I am saying no because I don't have a lawyer—.” The officer interrupted again and then quickly read a lengthy warning pertaining to the consequences of refusing to take a breath test. The officer again asked the defendant: “I will ask you again, will you take this breath test?” The defendant replied: “I will say no because I don't have a lawyer and I don't know what to do—.” Again the defendant was cut off.
The officer then asked the defendant if he would take a physical coordination test. The defendant shook his head and said: “I am not taking anything until I get a lawyer.”
The defendant was administered the Miranda warnings by another officer. When asked if he understood his right to remain silent and that the statement could be used in court, the defendant replied to each question: “Yes sir.” When it came to the question pertaining to his right to consult an attorney, the defendant stated: “Yes sir, that is what I was saying for a while ago, for a lawyer.” When finally asked if he wanted to waive these rights and answer questions, the defendant stated: “Not unless I have a lawyer .” The video then ends.
Conclusions of Law
The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The fourth amendment prohibits “unreasonable searches,” and case law establish that the administration of a breath test is a search (Birchfield v. North Dakota, ––– U.S. ––––, 2016 WL 3434398 [2016] ; Missouri v. McNeely, 569 U.S. ––––, 133 S Ct 1552, 1558 [2013] ; Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616–17 [1989] ; Schmerber v. California, 384 U.S. 757, 767 [1966] ; People v. Kates, 53 N.Y.2d 591, 594–95 [1981] ).
The first issue is the stop of the vehicle. In People v. Guthrie (25 NY3d 130 [2015] ), the Court held:
“A traffic stop is a seizure and is permissible under the Fourth Amendment and article I, § 12 of the State Constitution when a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation' ([ People v.] Robinson, 97 N.Y.2d [341,] ... 349 [1997]; see Whren v. United States, 517 U.S. 806, 809–810 [1996] ). Probable cause, in turn, does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place' (People v. Bigelow, 66 N.Y.2d 417, 423 [1985] [emphasis added]; see Ornelas v. United States, 517 U.S. 690, 696 [1996] ). Thus, [a] police officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a [traffic] stop' (Robinson, 97 N.Y.2d at 353–354 ).”
Here, the defendant's violation of the law requiring lit car lights after dark, passing vehicles on the left and swerving over the double yellow line gave the police officer reasonable cause (see People v. Gill, 37 Misc.3d 24 [App Term, 2d Dept, 9th & 10th Jud Dists 2012] ). Accordingly, the Officer's initial stop of the defendant's vehicle was justified.
The next issue is whether the police had probable cause to arrest the defendant for driving while intoxicated. Probable cause is defined as the body of information available to a police officer “which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed.” (People v. McRay, 51 N.Y.2d 594, 602 [1980] ; see also CPL 70.10[2] ). After lawfully stopping the vehicle, Officer Droge observed that the defendant had a strong odor of alcohol on his breath, bloodshot and blurry eyes. Additionally, the defendant failed a field sobriety test and was unsteady on his feet. Based upon these facts, the officer had probable cause to arrest the defendant for driving while intoxicated (see People v. Vargas, 123 AD3d 1149 [2d Dept 2014] [defendant's appearance combined with the smell of alcohol emanating from him and his failure of a field sobriety test gave officer probable cause to arrest for driving while intoxicated]; People v. Tieman, 112 AD3d 975 [2d Dept 2013] [glassy eyes combined with odor of alcohol emanating from defendant's breath combined with erratic driving gave the police probable cause to arrest the defendant for violating Vehicle and Traffic Law § 1192 ] ).
CPL 710.10[2] : “Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay.”
Lastly, with respect to the defendant's refusal to take the blood alcohol test, the defendant argues that the refusal must be suppressed because the defendant was denied his right to counsel. The Court of Appeals has recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases (People v. Washington, 23 NY3d 228 [2014] ; People v. Smith, 18 NY3d 544 [2012] ; People v. Gursey, 22 N.Y.2d 224 [1968] ). Based on the refusal warning procedure set forth in Vehicle and Traffic Law § 1194(2) :
“if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand' “ (Washington, 23 NY3d at 232, quoting People v. Smith, 18 NY3d 544, 549 [2012], quoting Gursey, 22 N.Y.2d at 227 ).
If the defendant requests counsel, he is to be afforded the opportunity to contact counsel (see Smith, 18 NY3d at 549 ). However, this opportunity cannot unduly delay the administration of the chemical test (id. ). The denial of this opportunity will result in the suppression of the refusal (Washington, 23 NY3d at 232 ).
A defendant's request for an attorney “must be specific and unequivocal in order to invoke this right” (People v. Borst, 49 Misc.3d 63 [App Term, 2d Dept, 9th & 10th Jud Dists 2015], citing People v. Hart, 191 A.D.2d 991 [4th Dept 1993] ). In the instant case, the court notes that the speed of the interaction between the defendant and the officer who talked to the defendant was rapid. The People argue that at no point did the defendant request a specific attorney or provide the officer with a telephone number of the attorney. The court has had the opportunity to view the video several times since the hearing. It was very hard to determine what exactly the defendant said at the end of his sentences because he was summarily cut-off nearly all of the time. In other words, the defendant was never afforded the opportunity to provide the officer with complete sentences.
Nevertheless, upon analyzing the defendant's responses, it is clear that his responses pertained to counsel:
“Until I speak to my lawyer, not—.
“I am saying no because I don't have a lawyer—..
“I will say no because I don't have a lawyer and I don't know what to do—.”
Later, during the issuance of the Miranda warnings, when it came to the question pertaining to his right to consult an attorney, the defendant stated: “Yes sir, that is what I was saying for a while ago, for a lawyer.”
The court finds that the defendant specifically and unequivocally requested counsel prior to refusing to take the chemical test. The defendant's multiple requests were sufficiently specific to indicate that the defendant wanted to consult with an attorney prior to making his decision to refuse or consent to chemical testing (see People v. Sanciu, 49 Misc.3d 430 [Crim Ct, Kings County 2015] ). The testing officer did not afford the defendant the opportunity to contact his lawyer (see People v. Keener, 138 AD3d 1162 [3d Dept 2016] ).
Therefore, the testing officer, without justification, prevented access between the criminal accused and his lawyer, available in person or by immediate telephone communication (see Smith, 18 NY3d at 549 ).
The court must now determine whether the opportunity would have unduly delayed the administration of the chemical test (see Smith, 18 NY3d at 549 ). Alcohol dissipates rapidly in the body and therefore a breath test is time sensitive (Gursey, 22 N.Y.2d at 229 ). However, the process of consultation need not be a lengthy process: “As we explained in Gursey, the right to seek the advice of counsel—typically by telephone—could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure” [emphasis added] (People v. Smith, 18 NY3d at 549–550, citing Gursey, 22 N.Y.2d 224 ). “If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel” (Gursey, 22 N.Y.2d at 229 ; see Smith, 18 NY3d at 550 ).
Here, the officer ignored what the defendant was saying or attempting to say pertaining to counsel (see People v. Mora–Hernandez, 77 AD3d 531 [1st Dept 2010] ). Therefore, the officer never took any steps to enable the suspect to attempt to promptly reach an attorney.
Accordingly, the People cannot demonstrate that giving the defendant the opportunity would have caused an undue delay.
The defendant's motion to suppress the refusal is granted.
The foregoing constitutes the opinion, decision and order of the court. IT IS SO ORDERED.