Opinion
17–2725
04-26-2018
PEOPLE of the State of New York, Plaintiff, v. William SMALL, Defendant.
Westchester County District Attorney, Mount Vernon branch, David I. Rifas, Esq., 271 North Avenue, Suite 1009, New Rochelle, NY 10801, Attorney for Defendant.
Westchester County District Attorney, Mount Vernon branch, David I. Rifas, Esq., 271 North Avenue, Suite 1009, New Rochelle, NY 10801, Attorney for Defendant.
A Dunaway/Huntley hearing was held in this proceeding where the defendant is charged with Driving While Intoxicated in violation of VTL § 1192(2), Driving While Intoxicated in violation of VTL § 1192(3), and Leaving the Scene of a Motor Vehicle Accident in violation of VTL 600(1)(a). After receiving testimony the Court finds as follows:
Findings of Fact :
At the hearing, Police Officer Charles Rizzo testified that he has been a member of the Mount Vernon Police Department for approximately twenty months. While on duty on October 6, 2017 at approximately 3:15am, he was dispatched to the vicinity of 625 South 5th Avenue in Mount Vernon in response to a report of a motor vehicle accident and the driver of the vehicle leaving the scene. The description of the alleged man leaving the scene was a black male with braids in his hair wearing a blue shirt. Officer Rizzo testified that he was in uniform, driving a marked police car and did not have a partner with him at the time he responded to the location. Upon arriving on South 5th Avenue, about a block and half away from the reported accident, he observed the defendant, a black male with braids wearing a blue shirt, crossing the intersection. The officer testified that the defendant walked in front of his police vehicle. Officer Rizzo exited his vehicle and approached the defendant and asked him "where are you headed?". The defendant responded that he was heading back to the bar to get his wrist watch. Officer Rizzo smelled alcohol emanating from defendant and observed that the defendant had slurred speech and was swaying back and forth. Officer Rizzo asked the defendant if he had been drinking. Defendant voluntarily responded affirmatively and that he had "three Absolute(vodka) and cranberries". Officer Rizzo then asked the defendant if he had been involved in a motor vehicle accident a block away. Defendant informed Officer Rizzo that he was involved in an accident. Officer Rizzo then asked the defendant if he could return back to the scene of the accident. He testified that the defendant was very cooperative and he voluntarily got in the back seat of the car, although he used language that "he placed him into the back of the police car". He did not handcuff the defendant and he said the Defendant was not under arrest. On cross-examination, Officer Rizzo testified that once defendant advised him that he was involved in an accident, he was not "free to leave" but he never communicated this to the defendant.
When the officer arrived at the scene of the automobile accident, he observed a gray Chevy Tahoe on top of one parked car and two other parked cars were damaged that were next to it. The officer then asked the defendant who was still seated in the back seat of the patrol car, if he was operating that vehicle referring to the Chevy Tahoe. Defendant responded yes. After the defendant advised the officer that he was driving the grey Chevy Tahoe, several field sobriety tests were conducted on the defendant across the street from the scene of the accident, which included the gaze nystagmus, walk and turn and one leg stand field sobriety tests. Officer Rizzo testified that defendant failed all three tests. During the horizontal gaze nystagmus test the defendant had a problem following instruction and followed with his head and not his eyes. During the walk and turn he missed several heel to toe steps. A blood alcohol breath test was administered to the defendant with a result B.A.C. of 0.149%. Defendant was then placed under arrest. He was never read his Miranda rights prior to arrest.
Conclusions of Law :
The Court finds that P.O. Rizzo had reasonable suspicion to stop and detain the defendant based upon the contents of the police dispatcher's radio broadcast which provided a general description of the person walking away from the scene of the car accident, which matched the defendant, the close proximity of the defendant to the site of the crime, the short passage of time between the crime and the observation of the defendant and the fact that the defendant was walking from the direction of the site of the crime ( People v. Green , 10 AD3d 664 (2d Dept 2004) ; People v. Gilyard , 32 AD2d 1046 (2d Dept 2006) ).
With respect to the defendant's CPL 710.30 statements to P.O. Rizzo when he first encountered the defendant a block and half away from the scene of the accident, the Court finds that the defendant was not in custody when he advised the officer in sum in substance that he was headed back to the bar to get his watch, had been drinking three absolute and cranberry beverages, and was involved in an accident. Threshold crime scene inquiries designed to clarify the situation and questions that are purely investigatory in nature do not need to be preceded by Miranda warnings ( People v. Mayerhofer , 283 AD2d 672 (3d Dept 2001) ; see also People v. Huffman , 41 NY2d 29 (1976) ). Thus, these portions of the defendant's noticed statement are admissible.
However, the remainder of the defendant's noticed statement wherein he informed the officer that he had been operating the Chevy Tahoe, which according to the credible hearing testimony, was made after he got into the back of the police car, went back to the scene of the accident, and was asked by P.O. Rizzo, "if he was operating that motor vehicle", requires a closer examination of whether the this noncustodial situation was transformed into a custodial one prior to defendant's inculpatory oral admission.
An individual is deemed to be in custody when he has been "deprived of his freedom of action in any significant way" ( People v. Turkenich , 137 AD2d 363 (2d Dept 1988) citing Miranda v. Arizona , 384 US 436 ). In deciding whether the accused was in custody prior to being interrogated, the subjective beliefs of the accused are not determinative in deciding whether the accused was in custody prior to being interrogated. People v. Clark , 540 NYS2d 328(2d Dept.1989). Likewise, the law enforcement officer's subjective, and undisclosed view concerning whether a person being interrogated is or is not a criminal suspect is irrelevant to the assessment of whether the person is in custody and thus entitled to Miranda warnings. (see People v. Ealy , 799 N.Y.S.2d 346 (4th Dept. 2005), Stansbury v. California , 511 U.S. 318, 114 S. Ct. 1526, 128 L.Ed 2d 293 (1994). Indeed, the fact that the defendant may have been a suspect at that time is not, in and of itself, proof that the Defendant was in custody. ( People v. Basso , 140 AD2d 448 (2d Dept. 1988). The appropriate test is "what a reasonable [person], innocent of any crime, would have thought had he been in the [accused's] position" ( People v. Yukl, 25 NY2d 585, 589 (1969) ; People v. Harris , 48 NY2d (1976) ). The factors to be weighed include the amount of time the defendant spent with the police, the manner, if any, in which his freedom was restricted, the location and atmosphere of his questioning, the degree of cooperation which he exhibited, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (see People v. Coggins , 234 AD2d 469 (2d Dept 1996) : People v. Bailey , 140 AD2d 356, 358 (2d Dept 1988) ). Generally, the determination of whether an interrogation is custodial is an issue of fact ( People v. Williamson , 51 NY2d 801 (1980) ; People v. McIntyre , 138 AD2d 634 (2d Dept 1988) ). It has been held that a custodial situation is not created by the fact that a defendant is questioned in a police vehicle ( People v. Mack , 131 AD2d 784 (2nd Dept. 1987)
Based upon the foregoing factors the Court finds that the defendant was not in custody when in the backseat of P.O. Rizzo's patrol car. Accordingly, the Court finds that his statement was voluntary and therefore should not be suppressed (see People v. Mathis 523 N.Y.S.2d 915 (2d Dept. 1988). It must be noted that both elements of policy custody and police interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda (see People v. Huffman , 41 NY2d 29 (1976).
The proof adduced at the hearing demonstrates that the defendant voluntarily entered the patrol car to accompany P.O. Rizzo to the accident scene. At that point P.O. Rizzo was still investigating the matter. The fact that the defendant had indicated a few minutes earlier that he was involved in an accident a block and a half away, did not conclusively mean that he was operating the motor vehicle or that P.O. Rizzo did not have further investigation to perform, i.e was the Defendant a passenger in this automobile accident?, was he sitting in one of the parked cars that was damaged?, etc. Applying the factors, as to the amount of time the defendant spent with P.O. Rizzo, the credible evidence establishes that it was only minutes from the time the defendant was first observed matching the description and asked to go back to the scene of the automobile accident. In terms of the manner if any in which his freedom was restricted, while the defendant was asked to accompany P.O. Rizzo back to the scene of the accident, same was done without coercion or demand and was voluntary. The fact that P.O. Rizzo stated "he was placed in the back seat of the patrol car" does not make the interaction custodial; the defendant went voluntarily, was not handcuffed and there is no evidence that P.O. Rizzo's question was threatening or coercive (see People v. Mack , 517 N.Y.S2d 72 (2d Dept. 1987). As to cooperation, P.O. Rizzo testified that the defendant was completely cooperative, cordial and answered questions freely. The fact that P.O. Rizzo testified that the defendant was not free to leave after the defendant had told him that he was involved in a motor vehicle accident a block and a half away, does not matter when evaluating whether someone must be Mirandized. The final question P.O. Rizzo asked at the scene of the car accident "whether the defendant had been operating the car" could be perceived to be accusatory, however, this Court finds that the Defendant was not in custody and that P.O. Rizzo was still engaged in clarifying whether the right suspect was apprehended. It should also be noted that P.O. Rizzo had yet to administer the standard field sobriety tests (SFSTs) to the defendant. Thus, P.O. Rizzo was under no obligation to mirandize the defendant.
The Court further finds that P.O. Rizzo's observations of the defendant, which included that he had slurred speech, swayed when he stood, and failed three sobriety tests, coupled with defendant meeting the radio description of the observed leaving the scene of the accident, defendant observed walking a block and half away from the accident scene, damage to at least two parked vehicle, and defendant's admission that he was involved in a motor vehicle accident, provided probable cause to place the defendant under arrest for being in violation of VTL § 1193(3) and VTL § 600(1)(a). Defendant's subsequent chemical breath test result indicating a BAC of .149% provided probable cause to place defendant under arrest for being in violation of VTL § 1192(2).
This constitutes the Decision and Order of this Court.