People v Gelaj

[*1] People v Gelaj 2008 NY Slip Op 52105(U) [21 Misc 3d 1120(A)] Decided on October 22, 2008 Supreme Court, Bronx County Fabrizio, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2008
Supreme Court, Bronx County

The People of the State of New York

against

Vasel Gelaj, Defendant.



47315C-2007



APPEARANCES:

For Defendant:

Rocco F. D'Agostino

445 Hamilton Avenue

White Plains, New York 10601

For the People:

Akane Fujiwara

Office of the District Attorney

Bronx County

215 East 161st Street

Bronx, New York 10451

Ralph A. Fabrizio, J.

Earlier this year, in People v. Palazzo, 20 Misc 3d 1107 (A) (Sup. Ct. Bronx County 2008), this Court addressed the question of whether that defendant's unequivocal request to consult with his named attorney before making a decision about taking an Intoxilyzer test would result in the suppression of the defendant's subsequent refusal to take that test, where the police took no steps to help the defendant track down that lawyer's telephone number. In that case, the answer was yes. Here, this Court is asked to resolve the question of whether a defendant who has requested to speak with "my lawyer" and is denied access to his cellphone, which is in police custody and has the lawyer's number stored in its memory, requires suppression of his refusal to take the same kind of test. The defendant's qualified right to have the assistance of his own counsel before deciding whether to take an Intoxilyzer test was violated in this case, and [*2]evidence of the defendant's refusal to take the test is ordered suppressed. However, all police officer observations, as well as the videotape showing the defendant's performance during coordination tests conducted at the precinct, are not suppressed, and neither is a custodial statement that the People wish to introduce into evidence.

The defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol, in violation of VTL §§ 1192(3) and 1192(1). On September 19, and September 24, 2008, this Court presided over a pretrial hearing to determine whether there was probable cause for the defendant's arrest, and whether physical evidence, police officer observations, evidence of the defendant's refusal to take an Intoxilyzer test, and a post arrest statement, should be suppressed. The People called three witnesses, Police Officer Kevin Driscoll, Police Officer Dennis Vickery, and Police Officer Rick Wiley. The Court credits their testimony only to the extent specifically mentioned in its written findings of fact.

FINDINGS OF FACT

On August 1, 2007, at about 3:50 a.m., Officer Driscoll of the 44th Precinct was stationed in the vicinity of the Major Degan Expressway, on the southbound side, near the exit for East 153rd Street. He had a radar gun, and was looking for speeding motorists. At about that time, the defendant was driving his vehicle southbound past Officer Driscoll. The officer estimated that the defendant was traveling in excess of 80 miles per hour. He confirmed that belief by aiming his radar gun at the defendant's vehicle, which showed that the defendant's car was speeding along at 82 miles per hour. The speed limit on the Major Degan is 50 miles per hour. Officer Driscoll got into his vehicle, alone, and caught up with the defendant's vehicle. Using the police vehicle's turret lights, Officer Driscoll asked the defendant to pull over at the highway's shoulder in the vicinity of 161st Street. The defendant complied immediately. Officer Driscoll did not observe the defendant have any trouble pulling his vehicle over to the side of the road.

Officer Driscoll got out of his vehicle, alone, and approached the driver's side of the defendant's stopped vehicle. For safety reasons, during this car stop, Officer Driscoll stood just behind the driver's side door. He told the defendant, in substance, that he was speeding, and asked the defendant for his driver's license. The defendant complied. Meanwhile, Police Officers Wiley and Vickery, members of the Highway Unit, were also driving southbound on the Major Degan and observed Officer Driscoll pulling over the defendant's car. They decided to investigate, and pulled their vehicle over as well. Officer Wiley approached the passenger side of the defendant's vehicle, as Officer Driscoll was asking the defendant for his license and registration; Officer Vickery remained by his own patrol car and never approached the defendant's vehicle. After Officer Driscoll left and went back to his car to write up a summons, Officer Wiley walked around to the driver's side of the defendant's vehicle. Officer Wiley asked the defendant to step out of the car. The defendant was a bit unsteady as he walked. Officer Wiley detected an odor of alcohol coming from the defendant.[FN1] After Officer Driscoll returned to give the defendant his speeding ticket, Officer Wiley placed the defendant under arrest and charged him with driving while under the influence of alcohol. He took the defendant back to his [*3]vehicle, where Officer Vickery had been waiting, and placed the defendant inside, leaving the defendant's own car on the side of the highway. The time was 3:57 a.m..

Officers Wiley and Vickery drove the defendant to the 45th Precinct, the location of the Intoxicated Driver's Testing Unit. The trip took less than 10 minutes. At about 4:10 a.m., a police video technician began recording the interaction between the defendant and Officer Wiley. The officer informed the defendant that he had been placed under arrest for operating a vehicle while under the influence of alcohol, and asked the defendant if he would take a breath test. The defendant answered, "No." The officer then told the defendant, in substance, that if he refused to take the test, his driver's license would be suspended, and evidence of his refusal could be used against him in court, and asked the defendant once again if he would take the test. The defendant again answered, "No."

Officer Wiley then explained to the defendant that the driver's license suspension would be for a minimum of 12 months if he did not take the test. The defendant replied, "Twelve months. That's a long time." The officer asked the defendant once again if he wanted to take the test, and the defendant said, "I will not take the test without my lawyer." The officer asked the defendant if he had his lawyers's telephone number, and the defendant replied that he wanted to call his wife. Officer Wiley told the defendant, in substance, that this was a different issue, and asked the defendant once again if he had his lawyer's phone number. The defendant replied, in substance, that he did have the number stored in his cellphone, which was still in his car. Officer Wiley repeated, in substance, that the defendant did not have the telephone number "on him," and asked the defendant once again if he wanted to take the test. The defendant said that he would not take the test without his lawyer being present. The time was approximately 4:12 a.m.

The defendant then agreed to take a series of coordination tests, all of which were videotaped. For one test, Officer Wiley asked the defendant to close his eyes, tilt his head back, and stand. The defendant did this. Officer Wiley told the defendant to close his eyes, and the defendant replied that he had done so. Officer Wiley told the defendant that he could still see the defendant's eyes, and the defendant responded, "I have big eyes."

CONCLUSIONS OF LAW

The evidence at the hearing established that Officer Driscoll had ample probable cause to stop the defendant. He personally observed the defendant speeding along the Major Degan Expressway, and confirmed his own visual estimate that the defendant was driving well in excess of the speed limit by using a radar gun. See People v. Ingle, 36 NY2d 413 (1975); People v. Robinson, 97 NY2d 341 (2001). Officer Wiley had the authority to ask the defendant to exit the car for a brief period during the car stop. See People v. Robinson, 74 NY2d 773, 774 (1989). When he did, he detected an odor of alcohol coming from the defendant, and saw that defendant was somewhat unsteady as he walked at that point. These observations, combined with the defendant's unsafe operation of the vehicle while speeding, gave Officer Wiley probable cause to arrest the defendant for operating a motor vehicle while under the influence of alcohol. See e.g. People v. Goodell, 164 AD2d 321, 323 - 24 (2nd Dept. 1982), aff'd, 79 NY2d 869 (1992); People v. Farrell, 89 AD2d 987, 988 (2nd Dept. 1982). Accordingly, none of the evidence obtained in this case is subject to suppression as the fruits of an illegal arrest. [*4]

The People also established that the defendant's refusal to submit to the Intoxylizer exam in this case was persistent. The defendant was asked at least four times to submit to a chemical test to determine his blood alcohol content, and advised that the consequences of such a refusal would include admission of the fact of his refusal into evidence at trial. The defendant refused to take the test. As such, the refusal comported with this part of the requirements of VTL § 1194(2)(f); People v. Thomas, 46 NY2d 100, 108(1978).

Nonetheless, the evidence of the defendant's refusal is not admissible in this case, because there was no attempt to reasonably accommodate the defendant's request to consult with his own attorney before making a decision about whether to take the Intoxilyzer test. "[A] defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests the assistance of counsel." People v. Shaw, 72 NY2d 1032. 1034 (1988). The police are required to take reasonable steps to try to reach that attorney for at least a telephone consultation, as long as no danger of delay exists that could affect the legitimacy of the results of the test. See People v. Gursey, 22 NY2d 224, 229 (1968); People v. Kearney, 261 AD2d 638 (2nd Dept. 1999). If the police do not take reasonable steps to help a defendant contact his or her attorney after that defendant makes an unequivocal request to consult counsel, the results of an Intoxylizer test, or the refusal to take one, may be suppressed. See Palazzo, 20 Misc 3d 1107(A); People v. Cole, 178 Misc 2d 166 (Justice Court, 1998).

Here, the defendant unequivocally requested the assistance of his attorney in connection with making a decision about whether he would take the Intoxilyzer test. He said he wanted to speak with his attorney, and even told Officer Wiley where he kept that attorney's telephone number stored in the memory of his cellphone which was still in his car. At that moment, Officer Wiley was required to take reasonable steps to help the defendant retrieve that number so that he could contact the defendant's lawyer. But, he took no such step. He never even asked the defendant for his lawyer's name. More important, Officer Wiley had only left the defendant's vehicle about 10 minutes earlier, parked on the shoulder of the Major Degan Expressway. He made no attempt to radio Officer Driscoll and ask him to bring him the cellphone to the precinct, or made any other attempt to even try to locate the car. Officer Wiley testified that he believed the car had already been towed, testimony which the Court does not credit, especially given the extremely short period between the time the officer left the car and the time the defendant told him that his lawyer's telephone number was in his cellphone in that same car. Significantly, the officer made no attempt to check whether the car had actually been towed, a step that would have been completely reasonable if the officer were truly interested in accommodating the defendant's request, repeated twice, to be able to speak with his lawyer.

However, even assuming that, in the 10 minute period that elapsed between the defendant's arrest and his request to speak with his lawyer, a police tow truck had been dispatched, had come to the scene, had hooked up the defendant's car, and had towed it away, the car, and the cellphone, would still have been in police custody. There is nothing in the record to suggest that the cellphone was completely inaccessible to Officer Wiley, or any other police officer, and since it was in police custody, it was obviously so accessible. Given the fact that the police had sole custody at that point of the one place the defendant was sure would contain his lawyer's telephone number, and Officer Wiley did nothing to facilitate the phone's return to the [*5]defendant, the police actually denied the defendant access to his lawyer. See People v. Croft, 28 NY2d 274, 278 (1971).

Moreover, the officer's decision to deny the defendant access to his attorney is rendered all the more unreasonable since the defendant was asked to take the test only about 10 minutes after he left his car on the side of the road. Time was hardly of the essence at 4:10 a.m. the police have at least two hour after an arrest to obtain a breath sample in this type of case .See People v. Stone, 128 Misc 2d 1009, 1013 (Crim. Ct. Richmond County 1985). The People argue, however, that the police are not under any duty at any time to try to assist a defendant in contacting his or her attorney in a situation where, as here, the defendant makes an unequivocal request to consult with counsel before deciding to take an Intoxilyzer test. That flies in the face of settled law in this area. Shaw, 72 NY2d at 1034; Gursey, 22 NY2d at 228 - 29. It is true that a defendant does not have an "absolute" right to the presence of an attorney at the precinct, if the administration of the chemical test will be unreasonably delayed by waiting for the lawyer. See People v. O'Rama, 162 AD2d 727 (2nd Dept. 1990), rev'd on other grounds, 78 NY2d 270 (1991). But, the right to consult with a lawyer in New York in this type of situation, involving an arrest for "drunk driving" and the defendant's request to speak with his own lawyer prior to making a decision about whether to take an Intoxylizer test, requires that the police take reasonable steps to arrange for at least a telephone communication between attorney and client, as long as that minimal step does not unreasonably delay the testing. Gursey, 22 NY2d at 229.

In the alternative, the People argue that Officer Wiley did all that was "necessary" because he asked the defendant "multiple times if he had his lawyer's phone number and was advised numerous times that defendant may call him if he wished." First of all, that is not at all what happened, and this characterization dehors the record. The defendant first said that he wanted to call his wife when the officer asked the defendant how he could get the lawyer's telephone number, and the officer told the defendant that he was not going to let him call his wife. After that, when the defendant told the officer that his lawyer's telephone number was in his cellphone in his car, all the officer did was state the obvious by saying, "So, you don't have it on you." The defendant could not have called his lawyer, and that fact is clear, because he did not have the number in his personal possession. Officer Wiley did not let the defendant call his wife so that he could get the lawyer's number or have his wife call the lawyer. And Officer Wiley never even attempted to try to track down the cellphone. Put simply, the officer did next to nothing to help the defendant retrieve his own attorney's telephone number, so that he could call his lawyer, as he had so clearly requested.

In Gursey, 22 NY2d at 227, Judge Breitel noted that the Court's unanimous decision recognizing a defendant's right to consult with an attorney prior to deciding whether to agree to take what was then called a "drunkometer" test was made "[i]n light of current recognition of the importance of counsel in criminal proceedings affecting significant legal rights." [FN2] As a result, the Court clearly held that a police officer may not "prevent access between a criminal accused and his lawyer, available in person or by immediate telephone communication, if such action does not interfere unduly with the matter at hand." Id. The People's arguments seem to completely ignore [*6]this well-established, bright-line rule. In this case, the officer did prevent access between the defendant and his attorney, by not taking any kind of steps to help the defendant, who was isolated at 4:00 a.m. at a precinct without his own cellphone, contact that lawyer. Under all the circumstances, evidence of the defendant's refusal to submit to the Intoxylizer exam is ordered suppressed.

The observations made by the police of the defendant taking various coordination tests, memorialized on tape, are not subject to suppression on right to counsel grounds. The defendant had, as noted, unequivocally requested his attorney, and the police could therefore not interrogate the defendant in the absence of counsel. But, the coordination tests the defendant agreed to take are not testimonial in nature. People v. Hager, 69 NY2d 141 (1987). Therefore, the defendant had no right to consult with an attorney before being asked, and agreeing, to take those tests.

Finally, the statement evidence which the People do wish to introduce into evidence is not suppressed. The defendant's statement, "I have big eyes," was clearly made while he was in custody, and after he invoked his right to counsel. Since the defendant had asked for the assistance of his attorney, Officer Wiley could not deliberately elicit any statements from him. See Massiah v. United States, 377 U.S. 201, 206 (1980); People v. Glover, 87 NY2d 838 (1995); People v. West, 81 NY2d 370, 373 (1993); People v. Cunningham, 49 NY2d 203, 207 (1980). A court is required to examine all the facts and circumstances in determining whether questioning or conduct of a police officer "was designed to elicit information;" if so, the defendant's right to counsel was violated. See People v. West, 237 AD2d 315 (2nd Dept. 1997).

Officer Wiley did not "deliberately elicit" the statement the People seek to admit. He was merely giving the defendant instructions about how to conduct himself during that particular coordination test. Telling someone to close their eyes, and keep them closed, and commenting on the fact that you can still see their eyes is hardly conduct or questioning designed to "elicit information." The defendant's response to the officer's instructions and observations was not made as a result of police conduct aimed at violating his right to counsel.

The foregoing constitutes the decision and order of the Court.

Dated:October 22, 2008____________________________

Bronx, New YorkRALPH FABRIZIO

A.J.S.C. Footnotes

Footnote 1:Neither Officer Driscoll nor Officer Vickery were asked if they detected an odor of alcohol on the defendant's breath.

Footnote 2: That decision was made as the law in the "right to counsel" area was evolving in light of the decision of the Supreme Court two years earlier in Miranda v. Arizona, 384 U.S. 436 (1966).