People v Passalaqua

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[*1] People v Passalaqua 2006 NY Slip Op 52023(U) [13 Misc 3d 1227(A)] Decided on October 25, 2006 Criminal Court Of The City Of New York, Richmond County Nadelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2006
Criminal Court of the City of New York, Richmond County

THE PEOPLE OF THE STATE OF NEW YORK

against

Joseph A. Passalaqua



2006RI001848



For the People: Daniel M. Donovan,Jr.

For the Defendant: John Orlando

Eileen N. Nadelson, J.

Motion to Suppress

A hearing was held to determine whether statements made by Defendant as well as the results of a field sobriety test, and his refusal to take a breathalyzer test should be suppressed at the eventual trial.

Defendant was allegedly observed driving a car that was weaving back and forth over a double yellow line, at one point almost hitting a parked car. The incident occurred on a clear, cold and dry evening. The police officers who observed the occurrence had followed Defendant for approximately one mile before pulling him over. The two officers approached the car, one on the driver's side and one on the passenger side, and asked Defendant to step out of the vehicle. One of the police officers testified that he "could smell a strong odor of alcohol coming from the car." (Tr. 6) This officer further testified that he observed Defendant walking in an unstable fashion and that Defendant had bloodshot eyes and a strong smell of alcoholic beverage. (Tr. 6)

The police officer testified that Defendant stated that he had had a couple of drinks, (Tr. 7) which Defendant corroborated in his testimony in which he stated that he had had two beers between 10.30 and 11 PM. (Tr. 52) Defendant also said that he was pulled over within ten minutes of finishing his last beer. (Tr. 42)

Defendant was asked to take a roadside sobriety test, which he agreed to do. The results of that test indicated a blood alcohol level of .138 (Tr. 7) Defendant was arrested, and while he was being taken to the police station for booking Defendant was given his Miranda warnings. (Tr. 8) The police officer stated that he made no threats to Defendant, and after the Miranda rights were read to Defendant he did not ask Defendant any questions. Defendant volunteered that he was worried that he would not make the closing on a house that he was selling. (Tr. 10)

When Defendant and the police officers arrived at the police station, the police attempted [*2]to question Defendant about the evening, using questions from PD-244, a police form used for such interrogations. Defendant answered the first two questions from the form, that he was driving the vehicle and that he was on his way home, and then refused to answer further questions. Defendant also refused to take a breathalyzer (intoxilizer) test. (Tr. 12-13)

At the hearing, Defendant testified that he was driving carefully, but that the road in question is extremely serpentine and that it is impossible not to cross the yellow lines because of the angle of the curves. Although Defendant testified at length regarding his opinion of the curvature of the road, the only other evidence of the condition of the road were photographs of the scene taken after the date and time of the occurrence and which are not indicative of a driver's ability to avoid crossing the double yellow lines.

Defendant further testified that the police officers advised him not to take the breathalyzer test at the police station, which is why he refused. (Tr. 41, 45) Defendant confirmed that his Miranda rights were read, and when questioned about feeling intimidated causing him to refuse to take the breathalyzer test, Defendant responded by stating "no one forces me to do anything." (Tr. 53-54) Defendant vehemently asserted that he would have taken the breathalyzer test if the police officers had not advised him not to do so. (Tr. 56)

Defendant moves to suppress his statement, the results of the roadside sobriety test, and evidence of his refusal to take the breathalyzer test on the following grounds:

a) the police had no legitimate right to stop the car, and so the statement, sobriety test and the refusal are all excludable as fruit of the poisonous tree or, in the alternative,

b) the refusal to take the breathalyzer test should be suppressed because the police officers advised Defendant not to take the test.

An arbitrary stop of an automobile constitutes a seizure and is impermissible unless the police officer reasonably suspects a violation has been committed. People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67 (1975). Any evidence obtained as a result of an unlawful stop, including physical tangible evidence as well as statements and identifications, must be suppressed as being the result of an unconstitutional seizure. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). However, if a suppression hearing is held, the People have the burden of showing probable cause for stopping the vehicle in question and if the stop is deemed reasonable under the circumstances, evidence obtained as a result of that stop may be admitted at trial. People v. Robinson, 97 NY2d 341, 741 N.Y.S.2d 147 (2001), People v. Smith, 170 Misc 2d 486, 649 N.Y.S.2d 313 (New York County 1996).

In the instant case, Defendant was observed swerving back and forth over a double yellow line, a fact to which Defendant admits. Defendant's argument that the nature of the road in question made such driving inevitable is unpersuasive with respect to the issue of probable cause for the stop. Although mitigating circumstances might eventually be deemed an appropriate [*3]defense to the charge of driving while intoxicated (assuming no intoxication could be proven), it does not negate the fact that the manner of his driving did give the police officers sufficient cause to stop the vehicle. Since all the testimony affirms that Defendant was driving over the yellow lines, the court concludes that the police did have probable cause to stop Defendant's car.

Based on the foregoing, Defendant's first argument, that all the evidence must automatically be suppressed as fruit of the poisonous tree must be denied. Therefore, the court must now consider Defendant's alternative proposition that refusal to take the breathalyzer test should be excluded at trial.

Defendant argues that his refusal to take the breathalyzer test should be suppressed because his refusal was based on the police officers advising him that it was in his best interest not to take the test.

Subdivision 4 of section 1194 of the Vehicle and Traffic Law states that evidence of a defendant's refusal to submit to a chemical test to determine the alcohol content of his blood shall be admissible in any trial based on a violation of section 1192 of the Vehicle and Traffic Law, provided he was given sufficient warning, in clear and unequivocal language, of the effect of such refusal.

In People v. Thomas, 46 NY2d 100, 412 N.Y.S.2d 845 (1978), a case cited by Defendant, the court said that a defendant's refusal to take a chemical analysis (breathalyzer) test should be admitted into evidence provided that it can be evidenced that the defendant was under no compulsion of any sort to refuse to take the test. In order to determine whether a defendant was acting under any compulsion, he must be advised of the consequences of such refusal (license revocation and/or admissibility of such refusal at trial, section 1194 of the Vehicle and Traffic Law) in clear and unequivocal language.

Defendant testified at the hearing that he only refused to take the test because he was so advised by the police officers. The People introduced into evidence a videotape of Defendant's refusal to take the breathalyzer test, which the court has viewed.

The tape lasts approximately ninety seconds. The video shows the police officer who testified at the hearing asking Defendant if he would take the breathalyzer (intoxilizer) test, which Defendant adamantly refused to do. At this point the officer explained to Defendant that his refusal to take the test could result in the revocation of his driver's license and evidence of the refusal could be used as evidence against him in a court of law. Defendant was then asked again if he would take the breathalyzer (intoxilizer) test, which he again refused. At this point the officer asked Defendant if he would take a coordination test, which was also refused. Defendant's comportment on the videotape does not demonstrate that he was acting under any form of compulsion or duress, and the court finds that his manner does not appear to be consistent with Defendant's assertions that the police advised him to decline the tests. [*4]

Based on that videotape and the testimony elicited at the hearing, the court concludes that Defendant's refusal to take the breathalyzer test was voluntary and knowing, and that the police adequately informed Defendant of the consequences of a refusal to take the breathalyzer test. Therefore, the court concludes that evidence of Defendant's refusal to take the breathalyzer (intoxilizer) test is admissible at trial.

This constitutes the opinion of the court.

Dated: October 25, 2006

__________________________

EILEEN N. NADELSON, J.C.C.

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