People v Ryan

[*1] People v Ryan 2005 NY Slip Op 51132(U) Decided on July 14, 2005 District Court, Nassau County Kluewer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2005
District Court, Nassau County

The People of the State of New York, Plaintiff,

against

George Ryan, Defendant.



NA 04109/05



Honorable Denis E. Dillon, District Attorney

240 Old Country Road

Mineola, NY 11501, for plaintiff.

Daniel Conti, Esq.

230 Hilton Avenue

Hempstead, NY 11550, for defendant.

Susan T. Kluewer, J.

Defendant's motion for an order suppressing statements made to police as "involuntary," suppressing tangible and other evidence as the product of an illegal search or seizure, suppressing evidence of his refusals to submit to a "breath and chemical test" on the ground that his refusals were unknowing and not persistent, directing that the People turn over Brady material, directing that the People turn over the names, addresses and telephone numbers of all witnesses, and for Sandoval relief, is granted to the extent that: 1. the issues of whether evidence should be suppressed on account on an unlawful stop of Defendant's vehicle, whether statements Defendant made to police should be suppressed [*2]as the product of coercion, or improper promises, or on account of a failure to observe the requirements of Miranda v. Arizona (384 US 436, 444 [1966]), whether Defendant was properly advised of the consequences of refusals to submit to a chemical test of his breath or urine, and if so, whether he nonetheless persisted in those refusals, are set down for a combined pre-trial hearing; and2. the permissible scope of cross-examination of Defendant concerning his past, should he elect to testify at trial, shall be determined at a hearing to be conducted immediately before trial, upon which the People shall notify Defendant of all specific instances of prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use at trial for impeachment purposes.

Defendant stands accused, by seven simplified traffic informations, of driving while intoxicated, driving while ability impaired by drugs, driving an uninsured vehicle, driving with an open container of alcohol in the vehicle, driving a vehicle without being licensed to do so, driving a vehicle with a fractured windshield, and driving "with headlamps of unequal power" (see Vehicle and Traffic Law §§ 1192[3], 1192[4], 319[1], 1227[1], 509[1], 375[22] and 375[2][a][1]). He is further charged by long form information of aggravated unlicensed operation of a vehicle in the third degree (see Vehicle and Traffic Law § 511[1]). All charges are joined under one docket, and all arise from an incident allegedly occurring on February 27, 3005 at 7:30 p.m. By a "DUI/DWI SUPPORTING DEPOSITION AND BILL OF PARTICULARS" that is annexed to the accusatory documents, Police Officer Gary Schmitt attests that, among other things, he was on "stationary patrol" when he observed a red "Suzuki Samuri" traveling north with a "broken left head lamp," that he followed the vehicle and stopped it, that upon approaching the vehicle, Defendant "was asked" to produce his license and registration, that Defendant produced his registration and an insurance card, that the insurance card was expired, that Defendant stated that his license was suspended, that he (Officer Schmitt) observed that Defendant had a strong odor of alcohol on his breath, slurred speech and glassy eyes, that Defendant "was asked" to step out of his vehicle, that Defendant performed "SFST . . . with positive clues," that a "PBT" produced a reading of ".08," that Defendant refused to submit to a test of his breath at "2126 hrs," that he refused to submit to a chemical test of his urine at "2143hrs," that while being transported, Defendant stated that he "takes methadone," that Defendant's vehicle was impounded, and that a search of the vehicle "incident to arrest" revealed an open 12-ounce Budweiser. There is no indication that the People specially served any "710.30" notice, but "VDFS" served on March 31, 2005 include a "710.30" notice indicating the People intend to offer at trial evidence that Defendant stated, in effect, that his license is suspended, that he had a few beers, and that he takes methadone. These documents further indicate that Defendant made these statements after the stop of his vehicle but before his formal arrest, even though the last is said to have been made "while being transported." Also included are notes about Defendant's performance on the standard field sobriety tests. They indicate that, on the walk and turn test, Defendant "missed heel-toe," stepped off the line, raised his arms, and refused to continue after three steps, that, on the one-leg stand, he swayed while balancing, used his arms to balance, hopped, put his foot down and said he "can't do test," and that he failed the "HGN" test. [*3]

In support of that branch of his motion which is for suppression of his statements as "involuntary," and citing both CPL 60.45 and People v. Weaver (49 NY2d 1012, 429 NYS2d 399 [1980]), Defendant urges, first, that because of the exception specified in CPL 710.60(3), he need not come forward with factual allegations that raise an issue as to whether his statements are the product of an illegal seizure. He nonetheless asserts that he was neither intoxicated nor impaired, denies that he was driving with a broken headlamp, sets forth that he "only found the headlight broken after the police released the vehicle from their impound facility," posits that he is not charged with driving a vehicle with a broken head lamp, and urges that there was thus no basis for the stop of his vehicle. Defendant makes no specific mention of any other bases for suppressing his statements, although he does assert that there should be a hearing to determine "all theories that are implicated by the definition of involuntariness." Defendant makes no other factual assertions, and interposes no specific challenge to police conduct after the stop of his vehicle, including the apparent search of it. He instead urges that all other evidence including Department of Motor Vehicle records establishing the status of Defendant's license (but see People v. Moya, 4 Misc 3d 101, 782 NYS2d 499 [AppTerm, 2d Dept., 2004]; People v. Sajous, 180 Misc2d 693, 695 NYS2d 471 [AppTerm, 2d Dept. 1999]) is the product of an illegal "seizure." With regard to the "breath and chemical test" refusals, an apparent reference to both the urine and blood tests, he asserts police failed to adequately warn him of the consequences of his refusals and that he did not persist in them. He declines to address those branches of his motion which are for an order directing the People to turn over Brady material and directing them to disclose the names, addresses and telephone numbers of witnesses, but he does address his request for Sandoval relief.

The People, who otherwise essentially oppose Defendant's motion, consent to what they call a "voluntariness" hearing, which they define as one exploring whether a statement is the product of "classic coercion." They posit that Defendant has failed to come forward with factual allegations sufficient to raise an issue about whether his statements were obtained in violation of the requirements of Miranda v. Arizona (supra ), and that he has failed to come forward with factual allegations sufficient to warrant a hearing to determine whether any evidence, including his statements, should be suppressed as the product of an unlawful seizure. They make similar assertions with respect to Defendant's request for a hearing to determine whether his refusals to submit to chemical tests were knowing and persistent. They acknowledge their continuing duty to turn over Brady material, consent to Sandoval hearing, and, with respect to Defendant's unaddressed request for an order directing the turnover of witnesses' names, addresses and telephone numbers, they offer the unhelpful statement that they will make available to Defendant "all information to which Defendant is entitled regarding witnesses . . . at the time which is specified by the applicable section of the Criminal Procedure Law."

What is meant by the term "voluntariness hearing," sometimes also referred to as a [*4]as a "Huntley hearing," has been the source of much confusion in this court. A confession, admission or other statement may not be admitted at trial if it is "involuntarily made" (see CPL 60.45[1][a]), and a statement is statutorily defined as "involuntarily made" if it is obtained by any person from a defendant by means of threats of physical force or other improper pressure or conduct (see CPL 60.45[2][a]), or if it is obtained by a public servant from a defendant by means of a promise which creates a substantial risk of false incrimination (see CPL 60.45[2][b][I]]), or if it is obtained from a defendant by a public servant "in violation of such rights as the defendant may derive from the constitution of this state or the United States" (CPL 60.45[2][b][ii]). If a defendant challenges the admissibility of any evidence as unlawfully obtained, he or she must make a written motion to suppress (see CPL Article 710) supported by sworn allegations of fact made either by the defendant or another person (see CPL 710.60[1]). A court "may" summarily deny the motion if the sworn allegations of fact do not as a matter of law support the ground alleged, except that, insofar as is here pertinent, a court may not summarily deny the motion on account of the absence of appropriate sworn allegations of fact where what is at issue is a statement that is involuntarily made "within the meaning of [CPL] 60.45" (see CPL 710.60[3][b]; see also CPL 710.20[3]).

Inasmuch as the right to be free of unreasonable searches and seizures is a constitutional one (see US Const, 4th Amend; NY Const, art I § 12), and inasmuch as a statement that is the product of a violation of that right is as suppressible as tangible evidence (see Wong Sun v. United States, 371 US 471 [1963]; Dunaway v. New York, 442 US 200 [1979]), the plain language of CPL 710.60 and 710.20 suggests that a statement that is the product of an unlawful seizure is "involuntarily made" within the meaning of CPL 60.45 and thus that an application to suppress it, as Defendant urges, need not be supported by sworn allegations of fact. Appellate courts have ruled otherwise, however (see e.g. People v. Walker, 15 AD3d 902, 789 NYS2d 780 [4th Dept. February 4, 2005]; People v. Toxey, 220 AD2d 204, 631 NYS2d 846 [1st Dept. 1995]; People v. Huntley, 259 AD2d 843, 687 NYS2d 747 [3d Dept. 1999]; People v. Murray, 192 Misc2d 336, 746 NYS2d 226 AppTerm, 2d Dept. 2002]; cf. People v. Mendoza, 82 NY2d 415, 422, 604 NYS2d 922, 924 [1993]). And the Court of Appeals case to which Defendant points to support his assertion People v. Weaver (supra ) does not require a different result.

It is true that, in Weaver, a case decided after the enactment CPL 60.45 and CPL Article 710 (see L.1970, c.996, §1), after the issuance of Wong Sun v. United States, after the issuance of Dunaway v. New York, and thus against the backdrop of each, the Court of Appeals did state that "there must be a [suppression] hearing whenever defendant claims his statement was involuntarily made no matter what facts he puts forth in support of that claim [emphasis in original]" (49 NY2d at 1013, 429 NYS2d at 399). But while the Weaver Court did not define the term "involuntarily made," it is otherwise clear that the Weaver defendant did not challenge the statements at issue as products of an unlawful search or seizure, and instead attacked them as products of unlawful conditions arising [*5]after the seizure was effectuated (see People v. Weaver, supra at 65 AD2d 936, 410 NYS2d 434 [4th Dept. 1978]). More importantly, the Weaver Court noted that to rule that sworn allegations of fact are required to avoid summary denial of a claim that a statement is involuntary "would be to shift the burden of proof of voluntariness from the People to the defendant" (49 NY2d at 1013, 429 NYS2d at 399).

It is well-settled that, where a defendant challenges the use of a statement as the product of classic coercion, as the product of custodial interrogation without the procedural safeguards necessary to secure the jealously guarded privilege against self incrimination, or without a knowing and intelligent waiver of that privilege, the People must prove beyond a reasonable doubt that the statement is "voluntary" (see People v. Anderson, 42 NY2d 35, 396 NYS2d 625 [1977]; People v. Jackson, 41 NY2d 146, 391 NYS2d 82 [1976]; People v. Pugh, 70 AD2d 664, 416 NYS2d 832 [2d Dept. 1979]; cf. Miranda v. Arizona, supra ). In contrast, where a statement is challenged on unlawful seizure grounds, it is the defendant who bears the ultimate burden of proof (cf. People v. Barrios, 28 NY2d 361, 321 NYS2d 884 [1971]; see People v. Ventura, 196 Misc2d 989, 768 NYS2d 279 [Crim Ct, New York County, 2003, Weinberg, J.]; see also Preiser, Practice Commentaries, CPL 710.60). It is thus obvious that a statement can be voluntary for Fifth Amendment purposes but nonetheless remain inadmissible involuntary for Fourth Amendment purposes (see Dunaway v. New York, supra at 217; Dickerson v. Unites States, 530 US 428, 440 [2000]); cf. People v. Anderson, supra ; and see People v. Rosa, 65 NY2d 380, 386, 492 NYS2d 542, 547). Given this recognized distinction, and given the announced rationale for its decision, it is clear that the Weaver Court was concerned with statements taken in violation of the Fifth Amendment to the United States Constitution (see also NY Const art I, §6) and not those obtained in violation of the Fourth Amendment (see also NY Const art I, §12). I thus cannot agree that Weaver works to relieve a defendant from the obligation of coming forward with sufficient sworn factual allegations where suppression is sought on search and seizure grounds simply because the evidence at issue is a statement rather than an item of property (see CPL 710.60[3][b]; cf. People v. Mendoza, supra ; see People v. Walker, supra ; People v. Toxey, supra ; People v. Huntley, supra ; People v. Murray, supra ). But neither can I agree with the People that the "sworn allegations" requirement is also to be imposed where a defendant seeks suppression of a statement on account of a failure to comply with the requirements of Miranda v. Arizona.

When the Court of Appeals ruled in People v. Huntley (15 NY2d 72, 255 NYS2d 838 [1965]) that a defendant is entitled to a pretrial hearing to determine the "voluntariness" of a confession or statement, and that the People bear the burden of proving "voluntariness" beyond a reasonable doubt (id. at 78, 255 NYS2d at 843-844), it did so as a matter of procedure and in response to dictates of Jackson v. Denno (378 US 368 [1964]). What made a statement voluntary or involuntary was not the Court's focus, but because Jackson v. Denno involves claims of coercion violative of the privilege [*6]against self-incrimination and the right to due process (see US Const, 5th, 14th Amends), "classic coercion" may indeed have been the original underpinning of the so-called "Huntley hearing." But the United States Supreme Court issued Miranda v. Arizona one year after our Court of Appeals issued People v. Huntley precisely because of the inherently coercive nature of custodial interrogations (see Miranda v. Arizona, supra ; see also Dickerson v. United States, supra ). And when the legislature thereafter enacted CPL 60.45 and CPL Article 710.60 (see L. 1970, c. 996, §1) nine years before the Supreme Court ruled in Dunaway v. New York that a Mirandized statement is suppressible on search and seizure grounds it included in the definition of "involuntary statement" one that is taken by a public servant in violation of a defendant's constitutional rights (see CPL 60.45[2][b][ii]) precisely because of the Miranda decision (see People v. Graham, 55 NY2d 144, 447 NYS2d 918 [1982]; see also Preiser, Practice Commentaries, CPL 60.45). Indeed, while there is apparently ongoing judicial debate about which side bears the burden of proving whether a defendant is in custody so as to trigger the requirement that the procedures set forth in Miranda v. Arizona be observed (see People v. Colon, 5 Misc 3d 365, 784 NYS2d 316 [Sup Ct, New York County, 2004, Kahn, J.]; People v. Mitchell, 5 Misc 3d 263, 781 NYS2d 196 [Sup Ct, Kings County, 2004, McKay, J.]; cf. People v. Alls, 83 NY2d 94, 608 NYS2d 139 [1993]), it is otherwise clear that, as a general rule, where the Fifth Amendment interests protected by Miranda are implicated, the People bear the burden of proof (People v. Anderson, supra ; People v. Jackson, supra ; cf. People v. Rosa, supra ). To rule, as the People tacitly urge, that Miranda issues do not bring an application to suppress a statement within the exception to the "sworn allegations" requirement of CPL 710.60(3)(b) would not only work to improperly shift the burden of proof (see People v. Weaver, supra ), it would also require that I ignore the reason for legislative enactment of that part of the definition of "involuntarily made" (CPL 60.45[2][b][ii]) that has generated so much confusion in this court (see People v. Graham, supra ; People v. Rosa, supra ; see also McKinney's Statutes §§ 92, 111, 141, 143).

All this being said, I find, somewhat ironically, that, in light of Officer Schmitt's assertion that he pulled Defendant's car over because of a broken head lamp, Defendant's specific denial that the head lamp was broken, and the fact that, in issuing the pertinent simplified traffic information, Officer Schmitt described Defendant's offense as driving with "headlamps of unequal power" rather than as failing to have two lighted head lamps (see Vehicle and Traffic Law § 375[2][a][1]), a question is properly presented about whether police had reasonable cause to believe Defendant had committed a Vehicle and Traffic Law violation so as to justify the stop of his car (see generally People v. Robinson, 97 NY2d 341, 741 NYS2d 147 [2001]). And inasmuch as determining whether tangible or other evidence should be suppressed as the fruit of an unlawful stop will involve some of the same constitutional questions that frame a determination about whether a statement is voluntary (cf. CPL 60.45[2][b][ii]; see Dickerson v. United States, [*7]supra ), inasmuch as the People consent to what they call a "voluntariness" hearing, and inasmuch as the threshold for obtaining a hearing to determine Miranda and coercion issues is, as noted above, relatively easy to meet (CPL 710.60[3][b]; cf. People v. Huntley, supra ; People v. Toxey, supra ), whether Defendant's statements are the product of coercion, improper promises or were obtained in violation of the requirements of Miranda v. Arizona should also be explored, notwithstanding Defendant's mere reference to "all theories that are implicated by the definition of involuntariness" (cf. People v. Mendoza, supra ). In light, however, of the available information about Defendant's claimed condition at the scene of his arrest, his performance on the standard field sobriety tests, and the results of the portable breath test, Defendant's conclusory denials about intoxication and impairment are insufficient to raise an issue concerning whether police had probable cause to thereafter make an arrest (see CPL 710.60[3][b]; People v. Mendoza, supra ). Finally, apart from any constitutional basis for suppression of evidence, it is common practice in this and other courts to conduct a hearing, akin to that for exploring whether Miranda rights have been knowingly waived, to determine if a defendant was properly advised of the consequences of a refusal and nonetheless persisted in that refusal (see People v. Robles, 180 Misc2d 512, 691 NYS2d 697 [N.Y.C. Criminal Court, Bronx County, 1999, Greenberg, J.]; cf. People v. McGovern, 179 Misc2d 159, 683 NYS2d 822 [District Court, Nassau County, 1998, Alonge, J.]; and see People v. Araujo, District Court, Nassau County, Docket No. 27064/98, 1999, Hart, J.]). The combined pretrial hearing on the issues noted above is thus called for.

Inasmuch as the People's affirmative duty to disclose Brady material within their possession or control exists regardless of any order confirming it, inasmuch as it also exists regardless of the People's good or bad faith concerning the disclosure, inasmuch as the People acknowledge their continuing duty to disclose that material, and inasmuch as Defendant identifies no specific material that is to be the subject of the requested order, Defendant's application for an order directing the People to turn over Brady material is denied as unnecessary (cf. People v. Morgan, 178 Misc02d 595, 682 NYS2d 533 [County Court, Fulton County, 1998, Giardino, J.]; People v. Jackson, 154 Misc2d 718, 593 NYS2d 410 [Supreme Court, Kings County, 1992, Slavin, J.]).

Defendant's request for an order directing that the People disclose the names, addresses and telephone numbers of witness is denied as unaddressed. Defendant's application for Sandoval relief is granted to the extent noted above (CPL 240.43; see People v. Matthews, 68 NY2d 118, 506 NYS2d 149 [1986]; People v. Sandoval, 34 NY2d 371, 357 NYS2d [1974]; see also People v. Simpson,109 AD2d 461, 492 NYS2d 609 [1985]).

So Ordered.