Opinion
12-280
07-10-2013
The People of the State of New York, v. Richard Wilkins, Defendant.
The People by Janet DiFiore, District Attorney (Nicholas DiCostanzo, Assistant District Attorney) Defendant by Bruce P. Bendish, Esq., Goodrich & Bendish, Elmsford, NY
The People by Janet DiFiore, District Attorney (Nicholas DiCostanzo, Assistant District Attorney)
Defendant by Bruce P. Bendish, Esq., Goodrich & Bendish, Elmsford, NY
Joseph L. Latwin, J.
Defendant was charged with Aggravated Driving while Intoxicated (Vehicle & Traffic Law ("VTL") 1192-2(A)(a)) and Driving while Intoxicated (VTL 1192-3). A jury trial was held from May 1 to May 3, 2013. At the conclusion of the trial, the jury returned unanimous verdicts of guilty on both counts.
At the trial, the first witness testified that she left her home on Cedar Street in Rye with her son at about 11:00 a.m. on August 1, 2012. When she left, no vehicle was parked blocking her driveway. She returned before 1:00 p.m., and noticed a car with the engine running blocking her driveway. She identified the car as a silver/gray late model Mercedes-Benz. She noticed a man slumped over the wheel and telephoned Rye Police headquarters concerned that the man slumped behind the wheel of the Mercedes might be either sick or drunk. Her son also testified that he saw the same man in a beige Mercedes and that the engine was off. He also observed the man as he exited the vehicle and noted he was off balance.
Sgt. Larkin, the first Rye police officer on scene, testified. He identified the defendant as the man in the vehicle. When Sgt. Larkin arrived on the scene at 12:54 p.m., he found the defendant slumped over at the wheel of the silver/gray Mercedes. The engine was running. Sgt. Larkin looked through the window to make sure the vehicle was not in gear before tapping on the window. Awaking, the defendant lowered the window and Sgt. Larkin reported a strong odor of alcohol coming from the vehicle. Sgt. Larkin said the defendant was unsteady upon exiting the vehicle and had to lean on it for support.
P.O. Cancel testified that he was present when P.O. Klein read the defendant Miranda warnings and when defendant refused to take a BAC breath test at 1:35 p.m. P.O. Cancel was also present when the defendant was offered a second opportunity to take the test. P.O. Cancel observed the defendant for 20 minutes from 2:41 p.m. to 3:12 p.m. and a minute later took a breath sample.
The defendant stipulated to the accuracy of the testing device and that the reading on the device was accurate and was .21 percent of alcohol in the blood.
P.O. Klein testified about the defendant's arrest. He described his administration of the standard field sobriety tests and the defendant's performance of them. After administering the SFSTs, P.O. Klein transported defendant to Rye Police headquarters and took defendant's pedigree information.
The County Toxicologist, Elizabeth Spratt testified as to the number of drinks defendant would have had to have to reach a .21 reading at 3:15 p.m. Her testimony was that defendant would have had to have drunk between 11 and 15 drinks.
Before the trial, the Court held a pretrial conference at which the parties were offered the opportunity to submit proposed Jury charges and indicated the Court would otherwise use the standard CJI charges. The People submitted proposed charges that used the CJI charges but added the name of the defendant, the date of the offense and the County where it was alleged to have occurred. Several days before the trial, the Court sent proposed charges, using the CJI charges to the parties. Before the jury was charged, defendant requested that the Court add to the standard CJI charges, language indicating the time when the violations were alleged to have occurred. Over the People's objection, the Court indicated that it would add to the standard charge language "between 11:00 a.m. and 12:55 p.m." to limit the times the jury should consider. The Court felt that the defendant was not charged with driving from Rye to White Plains the evening before, nor charged with driving from White Plains to Rye earlier on the morning of August 1, and that by adding the time period, the jury would not improperly consider events outside of the relevant time period. Thereafter, the People requested that the time limit language be amended to "sometime between approximately 11:00 a.m. and 12:55 p.m." Over defendant's objection, the Court ruled that it would adopt further amended time limit language since it felt that its original language might mislead the jury to believe it must find the defendant operated the motor vehicle while drunk for the entire period from 11:00 a.m. to 12:55 p.m. whereas the changed language only required the jury to find the defendant was driving drunk at some time between the stated hours.
The BAC test
The defendant argued that the Police Officer who performed the Breathalyzer test failed to identify the defendant as the person to whom he administered the test. At trial, P.O. Cancel could not identify the defendant as the person who was the subject of the DWI investigation. (Trial transcript at p.24, lines 16-20). P.O. Cancel was the only Breathalyzer operator at the time of defendant's arrest. Id. at p. 26, lines 6-9. P.O. Cancel never explicitly testified that it was the defendant that gave the breath sample for the test. He did say that he observed the defendant while he was being given Miranda and DWI warnings, but had to leave to respond to another call. After responding to the call P.O. Cancel returned to headquarters and observed the defendant. He then administered the breath test and recited the procedures he went through. During this testimony he refers to "Mr. Wilkins" or "the defendant" but never says defendant was the one who gave the breath sample. P.O. Cancel said that he "couldn't identify Rich [the defendant] as being the guy who [he] gave the test to." Id. at 53-54.
There is no case law addressing what happens when officers at trial cannot identify who took a Breathalyzer test. There is, however, case law on blood samples and their chain of custody, in particular what happens when the chain of custody has not been maintained, or even established. The chain of custody of any blood sample must be established and the failure to do so may be excused only where the circumstances provide reasonable assurances of the identity and unchanged condition of the sample. Amaro v. City of New York, 40 NY2d 30, 35, 386 NYS2d 19 [1976]; & People v. Arthur, 99 AD2d 595, 471 NYS2d 412, 413 [3rd Dept 1984]. Under the so-called chain of evidence approach "it is necessary to establish a complete chain of evidence, tracing the possession of the exhibit * * * to the final custodian, and * * * if one link in the chain is entirely missing, the exhibit cannot be introduced' or made the basis for the testimony or report of an expert or officer. People v. Connelly, 35 NY2d 171, 174, 359 NYS2d 266 [1974].
The Breathalyzer test results are inadmissible. The People failed to establish that the defendant gave the Breathalyzer test sample. They lack the very first link in the chain of custody. The undisputed facts are that defendant was in custody at the time and the police have Breathalyzer test results that contain defendant's pedigree information. The People argue that defendant must have been the one to take the Breathalyzer test. This might be a rational conclusion but it is not a factual necessity or certainty, nor the only possible conclusion, The People failed to establish that the person who sat down and blew into the Breathalyzer was actually the defendant.
The officer who administered the test could not identify defendant as the person to whom he administered the test. The arresting officer did not testify that he was present when the test was administered. Nor did he state that he identified defendant for the P.O. who administered the test. Either would have sufficiently established the necessary evidentiary foundation for the Breathalyzer test. The burden of proving the reliability of the evidence, i.e. who took the Breathalyzer test, is on the People. They failed to establish the original source of the breath sample provided for the Breathalyzer test was defendant. Therefore, the results of the Breathalyzer test is inadmissible against defendant and without the results of a Breathalyzer test cannot be used to establish BAC. Without the results of the Breathalyzer tests, the People could not prove that the defendant's blood alcohol test was .18 of one percent or more as required as an element of VTL 1192-2A(a). Therefore the Court must direct a not guilty verdict on the VTL 1192-2A(a) charge.
Operation
To convict a defendant of driving while intoxicated, the People must establish at trial the defendant's operation of the vehicle beyond a reasonable doubt. However, to obtain such a conviction, there is no requirement that the defendant be observed driving the vehicle; instead, operation of a vehicle can be proven by circumstantial evidence. In People v. Blake, 5 NY2d 118, 120, 180 NYS2d 775 [1958], the defendant, when found by the police officers, was seated alone in a drunken state in his automobile which was damaged and halted against a guardrail, with the engine running, on the Bronx River Parkway in Westchester County.The Court found the "obvious conclusion that the defendant drove the vehicle to the place where it was found, and that at that time he was intoxicated. The facts established point logically to the defendant's operation of the automobile while intoxicated, even though there is no direct proof that he drove into the guardrail. It is conceivable that some one else drove the car against the guardrail, but that is a possibility often present in many circumstantially proven criminal cases. Nevertheless, in this case, we are convinced that the proof in the record satisfies the test for circumstantial evidence to a degree sufficient in law to sustain the conviction." The Court of Appeals found this proof separate and apart from the defendant's admission.
An established line of authority in New York and elsewhere holds that for purposes of offenses for driving while intoxicated under the Vehicle and Traffic Law, operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion. (People v Alamo, 34 NY2d 453, 358 NYS2d 375 [1974];People v. Marriott, 37 AD2d 868; 325 NYS2d 177 [3rd Dept 1971]; & Matter of Prudhomme v. Hults, 27 AD2d 234, 278 NYS2d 67 [3rd Dept 1967].
Within the last two years the Appellate Term for the 9th Judicial District consistently followed this jurisprudence. Under the doctrine of stare decisis, a lower court must follow a decision of an Appellate Term to which an appeal from the former lies. 28 NYJur2d Courts and Judges § 220. Thus, the Rye City Court is bound by the decisions of the Appellate Term for the 9th Judicial District- the court to which appeals from it lie.
In People v. Turner, 34 Misc 3d 159[A], 950 N.Y.S.2d 725 [App Term, 9th & 10th Jud Dists 2012], the police received a 911 call by a non-testifying informant to the effect that a light-colored minivan was being operated on the Long Island Expressway in a fashion that suggested that the driver was intoxicated, and that the van had come to a stop beside the expressway between specified exits. An investigating officer discovered defendant's vehicle parked at the reported location, with defendant sleeping in the driver's seat. Although the key was in the ignition, the engine and vehicle lights were turned off. Affirming the conviction, the Appellate Term said, "The element of operation can be proven by circumstantial evidence, that is, without the necessity of eyewitness testimony that defendant operated his or her vehicle."
In People v. Salerno, 36 Misc 3d 151[A], 960 NYS2d 52 [App Term, 9th & 10th Jud Dists 2012], defendant was found asleep, slumped over the steering wheel of vehicle with the engine running, shortly after that vehicle had been observed being driven erratically and causing an accident, approximately a mile away. Although there was no eyewitness testimony identifying defendant as the operator of the vehicle, there was no one else in the vehicle when the police arrived. The arresting officer testified that, when awakened, defendant demonstrated various indicia of intoxication. The Appellate Term found that the evidence was legally sufficient to establish defendant's guilt of driving while intoxicated beyond a reasonable doubt.
Just last month, the Appellate Term restated the rule described above in People v. Murray, n.o.r., 2013 WL 2915711, 2013 NY Slip Op 23190 [App Term 9th & 10th Jud Dists June 4, 2013]. The Appellate Term said, "Being asleep in the driver's seat of a vehicle while the engine is running has been held to constitute the operation of a vehicle within the meaning of section 1192 of the Vehicle and Traffic Law absent evidence that the engine was running for some reason other than with the intent of placing the vehicle in motion, such as to use the vehicle's heater or air conditioner [citations omitted]." As here, the defense offered no evidence regarding defendant's lack of intent to place the vehicle into motion by explaining why the engine was otherwise running other than counsel's statements during argument. Compare with People v. DeSantis, 5/21/90 NYLJ 32 at col. 4 [App Term 9th & 10th Jud Dists] (where the defendant explained he went for drinks, was unable to drive and started the vehicle solely to turn the heater on in an effort to keep warm and fell asleep).
Here, there was sufficient circumstantial evidence from which the jury may have found operation. Defendant's vehicle was not present at about 11 a.m. but was there, when defendant was found in it around 1:00 p.m. The engine running. Defendant was slumped over the wheel of the vehicle. In keeping with the above cited cases from the Appellate Term, 9th Judicial district cited above, this is sufficient circumstantial evidence from which the jury could have inferred that the defendant operated the vehicle on August 1, 2012 between 11:00 a.m. and 12:55 p.m. Defendant offered no evidence that another drove the vehicle in Rye, that the vehicle was pushed or propelled through Rye by animal or human muscular power, was placed there by Divine intervention, was airlifted or towed there, appeared as the result of a magic trick or illusion, or was teleported down from space to Cedar Street. Other than the defendant driving there, there was no explanation (rational or otherwise) or any evidence from which any other inference could be drawn of how the defendant's vehicle got to Cedar Street in Rye - a block away and around the corner from Kelly's Sea Level Bar.
There was no evidence that the Starship Enterprise was in the vicinity of Rye at the time - the original Star Trek having aired from 1966 to 1969. Scotty passed away in 2005.
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The Court has considered the other issues raised on the motion and finds them without merit.
Accordingly, the Court will not disturb the jury's verdict of guilty on the charge of violating VTL 1192-3, and it is
ORDERED that the VTL 1192-2A(a) charge is dismissed.
The Clerk shall order a pre-sentence report and the parties shall appear at the Court for sentencing October 8, 2013 at 900 a.m..
The foregoing constitutes the opinion, decision and order of this Court.
Dated: July 10, 2013
Rye, NY
______________________
Joseph L. Latwin, J.C.C.
Papers:
Memorandum of Law of Bruce Bendish dated June 3, 2013;
Affirmation of Bruce Bendish dated July 9, 2013; and Affirmation and Memorandum of Law of Nicholas W. DiCostanzo dated July 2 , 2013.