Opinion
CR 03554-2004.
Decided July 1, 2005.
Defendant was charged with Driving at an Unreasonable Speed, a violation of Section 1180a of the New York State Vehicle and Traffic Law, as well as Driving While Intoxicated, a violation of Section 1192.3 of the New York State Vehicle and Traffic Law. It was alleged that on November 28, 2004, defendant was operating a vehicle that spun out at a high rate of speed on Park Avenue in Long Beach. When the defendant was stopped, the police officer detected a strong odor of alcoholic beverage on the defendant's breath, his eyes were observed to be reddened and glassy, his speech was slurred and he swayed in the roadway. Defendant was then issued a summons for Unreasonable Speed as well as charged with Driving While Intoxicated and refusing to submit to the chemical (sobriety) test.
In the matter at hand, the People of the State of New York are represented by Assistant District Attorney Susan Fleming, of counsel to the Hon. Denis Dillon, District Attorney for the County of Nassau, State of New York, and the defendant is now presently represented by David P. Galison, Esq.
On May 6, 2005, defendant made an Omnibus Motion. It should be noted that in said motion, there were no sworn allegations of fact by either defendant or others supporting the Motion to Suppress nor were there Affirmations by defendant denying that he committed the offenses charged. On May 20, 2005, the People submitted its Affirmation in Opposition to defendant's Motion. On June 10, 2005, defendant submitted a further Reply Affirmation in support of the relief he requested.
Included in the relief that defendant now petitions for in his Omnibus Motion are the following:
(1) pursuant to CPL § 710.20, to suppress all evidence obtained from the arrest on the grounds that the arrest was without probable cause, or, in the alternative, for a Dunaway hearing on the issue of probable cause;
(2) pursuant to CPL § 710.20(3), CPL § 710.70(1) and CPL § 60.45, to suppress any statements obtained during the stop on the grounds that the statement was taken:
(a) involuntarily,
(b) in violation of the accused's right against self-incrimination,
(c) in violation of the defendant's right to counsel,
(d) without the effective assistance of counsel,
(e) while the defendant was detained without probable cause to arrest,
(f) without adequately advising the defendant of his Miranda rights prior to questioning, and/or
(g) in the absence of a knowing voluntary, or intelligent waiver by the defendant of his rights prior to questioning, or, in the alternative, for a Huntley hearing to determine the admissibility of any such statements;
(3) pursuant to VTL § 1194, to suppress defendant's alleged refusal to submit to a chemical test, or, in the alternative, for an order directing that a pretrial hearing be held to determine the admissibility of the refusal evidence;
(4) pursuant to CPL § 710.20(1) and CPL § 710.60(4), to suppress any statements made by the defendant after the stop, any testimony pertaining to any observations of the defendant made by the police, and the refusal to take a chemical test as all such evidence stemmed from an illegal stop, or in the alternative, for a Mapp Hearing to determine the admissibility of any such evidence;
(5) pursuant to CPL § 240.43, for a Sandoval hearing to determine the admissibility of any past uncharged acts that the people will be using at trial to impeach the defendant.This Court, in its decision, will concern itself only with the matters that it deems relevant at this time and the motion will be decided as follows:
Dunaway Hearing
A Dunaway hearing is a suppression of evidence hearing to determine the issue of whether an arrest was supported by probable cause. A Dunaway hearing must be held if the Court refuses to summarily grant or deny a defendant's motion to suppress evidence obtained from an arrest on the grounds that the arrest was without probable cause ( see People v. Mendoza, 82 NY2d 415). Defendant's request for a Dunaway hearing will be granted if the motion papers raise an issue of fact as to probable cause for the arrest ( see People v. Toro, 300 AD2d 86 [1st Dept 2002], appeal denied 100 NY2d 543).
In the matter at hand, defendant contends that he did not commit any Vehicle and Traffic Law Violations when he was stopped by the police officer. More specifically, that he did not operate his vehicle at an unreasonable speed or while intoxicated and that the stop was without probable cause.
It is evident that a police officer may approach and stop a vehicle where the officer has reasonable suspicion that a violation of the law is involved.
An investigatory stop of a vehicle is permissible if based upon reasonable suspicion that a motorist is engaged in conduct which is in violation of the law, including the commission of a traffic infraction. The factual basis required to support a stop of an automobile is minimal. An actual violation of the Vehicle and Traffic Law need not be detectable. All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant [the] intrusion. (citations omitted).
( People v. Kehley, 166 Misc 2d 846, 848-849 [Crim Ct, Richmond County 1995]; citing Terry v. Ohio, 392 US 1, 21 [1968])
In his Supporting Deposition, the police officer stated his observation that the defendant's vehicle "spun out on the pavement and proceeded westbound at a high rate of speed" (Officer Kenneth Apple's Supporting Deposition [Nov. 28, 2004]). Here, the accusatory instrument articulates that the defendant's vehicle spun out while navigating a turn and proceeded at a high rate of speed. While the erratic manner in which the defendant operated his vehicle might be enough in itself to give the police officer reasonable grounds to suspect the defendant of driving while intoxicated, it most certainly provided the officer with the factual predicate required to support a stop for unreasonable speed ( Kehley, 166 Misc 2d at 849).
Although, this Court would not normally grant a Dunaway hearing under the present circumstances, nevertheless, as a Dunaway hearing can easily be held in conjunction with the Huntley and Breathalyzer Refusal hearings consented to by the people, defendant's request for a Dunaway hearing is granted.
Huntley Hearing
The purpose of a Huntley hearing is to determine the voluntariness of a confession ( People v. Nieves, 205 AD2d 173, 184 [1st Dept 1994]). Defendant argues that his statement made at the time of the stop was taken involuntarily due to the improper conduct on the part of the police officer. To determine whether a defendant was in custody prior to receiving his warnings, "[t]he test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" ( People v. Yukl, 25 NY2d 585, 589). Although, "temporary roadside detentions pursuant to routine traffic stops have been held to be noncustodial and reasonable initial interrogation attendant thereto has been held to be merely investigatory" ( Kehley, 166 Misc 2d at 850; see also People v. Mason, 157 AD2d 859 [2nd Dept 1990]; People v. Mathis, 136 AD2d 746 (2nd Dept 1988]). Defendant's initial statement, "I was drinking earlier" was made at the scene and prior to his being placed under arrest (CPL § 710.30 Notice [Nov. 28, 2004]). Thus, it must be held here that the police officer's questioning at the scene was not custodial in nature ( see People v. Yukl, 25 NY2d 585; Kehley, 166 Misc 2d 846; People v. Stone, 2001 NY Slip Op 40361[U] [2001]). Therefore, the defendant's request for a Huntley hearing is granted.
Breathalyzer Refusal Hearing
The purpose of a Breathalyzer Refusal hearing is to determine whether evidence of the defendant's refusal to submit to a chemical (sobriety) test will be admissible at trial. The hearing focuses on four issues to determine admissibility: (i) whether the police officer had reasonable grounds to believe that the defendant was driving in violation of any subdivision of Vehicle and Traffic Law § 1192, (ii) whether the police officer made a lawful arrest of the defendant, (iii) whether the defendant was given sufficient warnings, in clear and unequivocal language, prior to the defendant's refusal to submit to the test, and (iv) whether the defendant refused to submit to a chemical test or any portion thereof (Taheri, Ten Tips for Winning(?) a Refusal Hearing, 69 NY St BJ 58 [July/Aug. 1997]).
Defendant contends that he was not properly advised of the consequences of his refusal to take the chemical test, and as such, his refusal to submit to a chemical test should be suppressed and be inadmissible at trial. Defendant also contends that he did not persist in his choice not to take the test as required by VTL § 1194. New York State Vehicle and Traffic Law § 1194(4) authorizes the admission at trial of defendant's refusal to take a breathalyzer test only upon a showing that defendant was given sufficient warning, "in clear and unequivocal language, of the effect of such refusal and that the person persisted in his refusal." ( People v. Cruz, 134 Misc 2d 115, 116 [Crim Ct, New York County 1986]; Vehicle Traffic Law § 1194).
The refusal is admissible upon a showing that (1) the police had reasonable cause to believe that the defendant was driving while intoxicated, (2) within two hours of arrest, a request was made that defendant submit to the test, (3) defendant was told that his refusal would result in immediate mandatory suspension as well as subsequent revocation of his driver's license, and (4) defendant was warned that evidence of his refusal could be introduced at a subsequent trial ( Cruz, 134 Misc 2d at 116; Vehicle Traffic Law § 1194; see also People v. Brol, 81 AD2d 739 [4th Dept 1981], mod 89 AD2d 813 [4th Dept 1982]; People v. Philbert, 110 Misc 2d 1042 [Crim Ct, Queens County 1981]; People v. Boudreau, 115 AD2d 652 [2nd Dept 1985]; People v. Boone, 71 AD2d 859 [2nd Dept 1979]).
It is clear that "where the defense makes a timely request, alleging that the police did not comply with the requirements of Vehicle and Traffic Law § 1194(4), there must be a pre-trial determination as to whether evidence of defendant's refusal will be admitted at trial" ( Cruz, 134 Misc 2d at 117; see Brol, 81 AD2d 739; Boone, 71 AD2d 859). As for that which constitutes a persistent refusal varies with the specific facts of each case ( People v. Stone, 2001 NY Slip Op 40361[U] [2001]). It would appear that the Courts which have ruled on this issue have held that two refusals are sufficient to satisfy the requirement of a persistent refusal. People v. Stone, 2001 NY Slip Op 40361[U] at **6; citing People v. Nigohosian, 138 Misc 2d 843 [Nassau Dist Ct 1988]). Here, the defendant twice refused to submit to the test. However, a preliminary question of whether a proper foundation has been established to warrant the admission of the refusal evidence exists that must be determined prior to jury selection ( Cruz, 134 Misc 2d at 120). Therefore, defendant's request for a Breathalyzer Refusal hearing is granted.
Mapp Hearing
A Mapp hearing is a hearing to suppress the admissibility of evidence obtained pursuant to a search or seizure by police officers. Mapp v. Ohio ( 367 US 643) extended to the states the requirement to apply the exclusionary rule to evidence procured by law officers and government officials through unreasonable search and seizure in violation of the Fourth Amendment to the U.S. Constitution ( Sackler v. Sackler, 33 Misc 2d 600, 601, revd 16 AD2d 423 [2nd Dept 1962], affd 15 NY2d 40). Where the search or seizure violates an individual's constitutional rights, the seized matter cannot be used against the individual at trial ( People v. Bertrand, 28 Misc 2d 1084, 1085). "A defendant has no right to have evidence excluded as violative of Fourth Amendment rights unless the rights violated were his own" ( People v. Smith, 113 Misc 2d 176, 177; citing Rakas v. Illinois, 439 US 128; People v. Ponder, 54 NY2d 160). "While a defendant does not have to establish that he owns the premises or property subject to the search, he must show an invasion of his legitimate expectation of privacy" ( Smith, 113 Misc 2d at 177; citing Katz v. United States, 389 US 347).
In the matter at hand, the People argue that since the defendant "did not submit to a breath test, there was nothing `seized' from the defendant that would warrant a Mapp hearing" (A.D.A. Fleming Affirmation In Opposition p2 ¶ 5 [May 19, 2005]).
The doctrine of the `fruit of the poisonous tree' . . . is not limited to suppression of physical tangible evidence which flows from the illegal seizure and search, such as verbal statements, identifications, tests performed upon the defendant, and testimony at trial as to matters observed during the unlawful intrusion ( People v. Thomas, 164 Misc 2d 721, 724 [Crim Ct, New York County 1995] {emphasis added}).
Defendant requests a Mapp Hearing to determine the admissibility of any observations made by the police during the stop. "A violation of the Vehicle and Traffic Law is `a legitimate reason for police to justifiably stop a motorist'" ( People v. Barreras, 253 AD2d 369, 372 [1st Dept 1998], citing People v. Ingle, 36 NY2d 413). "A traffic stop constitutes a limited seizure of the person of each occupant." ( Barreras, 253 AD2d 369). The test is whether the officer's actions in stopping the vehicle were justified at their inception and whether those actions were "reasonably related in scope to the circumstances which justified the interference in the first place." ( United States v. Sharpe, 470 U.S. 675, 682). The first part of this test seems to be duplicative of the Dunaway hearing which seeks a determination on whether there was an articulable factual predicate for the stop in the first place. Here, the stop was predicated on the defendant's unreasonable speed. Then, during the routine traffic investigation, the police officer noted a strong odor of alcohol, slurred speech, and reddened and glassy eyes. The police officer requested that the defendant exit the vehicle and noted that the defendant swayed as he stood in the roadway. Contrary to the People's argument that since the defendant did not submit to a breath test that there was nothing "seized" that would warrant a Mapp hearing, these are the very observations that the defendant seeks to preclude the officer from testifying to at trial.
However, this Court recognizes the People's contention that defense counsel's motion purports to rely upon an affidavit by the defendant while no affidavit was submitted by the defendant or anyone else except defense counsel himself. Nonetheless, given that the factual basis for determining the admissibility of any observation evidence is so intertwined with the other admissibility hearings already granted, this Court sees no reason not to conduct a Mapp hearing in conjunction with the Dunaway, Huntley, and Breathalyzer Refusal hearings. Defendant's request for a Mapp hearing is granted.
Sandoval Hearing
The purpose of a Sandoval hearing is to determine the scope of cross examination of the defendant regarding prior criminal, vicious or immoral acts should he testify at trial ( People v. Stevens, 7 Misc 3d 1005(A), 2004 NY Slip Op 51866[U] [2004]). Defendant's request for a Sandoval hearing is granted and will be held on the eve of trial.
Discovery
The People have agreed to supply audio tapes to the defendant when he furnishes to the District Attorney's office blank tapes on which to make copies. Any additional discovery shall be conducted in accordance with CPL § 240.40.
Bill of Particulars
If a party believes an adversary's pleading to be deficient in particularity, that party may demand or move for a bill of particulars. "The defendant is entitled to a bill of particulars only `of such particulars as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged', but not `stating items of evidence'" ( People v. Spina, 14 AD2d 505, [4th Dept 1961], quoting NY Code Crim Pro § 295-h). "The defendant has a statutory right to discovery of any written or recorded statement made by him to law enforcement personnel" ( People v. Utley, 77 Misc 2d 86, 89).
Brady Hearing
The People have a continuing obligation under Brady v. Maryland ( 373 US 83) to disclose material evidence, that if withheld, would deny defendant a fair trial. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution" ( Brady v. Maryland 373 US at 87). "The People must disclose evidence which is favorable to the accused and material to either guilt or punishment; that is, exculpatory evidence ( People v. Buckley, 131 Misc 2d 744, 745-746, affd 147 AD2d 898 [4th Dept 1989], lv granted 73 NY2d 1012, affd 75 NY2d 843).
710.30 Notice
The defendant has been provided with CPL § 710.30 Notice, in accordance with this statute, advising him of the statement which the people seek to use against him at trial.
In summation, defendant's request for Dunaway hearing, Huntley hearing,
Breathalyzer Refusal hearing, Mapp hearing and Sandoval hearing are hereby granted.
This constitutes the decision and Order of this Court. All parties are to appear for conference on July 29, 2005 at 2 p.m.
So ordered.