People v Oleksiyiv

[*1] People v Oleksiyiv 2008 NY Slip Op 52334(U) [21 Misc 3d 1133(A)] Decided on November 20, 2008 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2008
District Court of Nassau County, First District

The People of the State of New York,

against

Ihor Oleksiyiv, Defendant.



2007NA000079



Hon. Kathleen Rice, Nassau County District Attorney

Attorneys for Defendant: Raiser & Kenniff, P.C.

Andrew M. Engel, J.

The Defendant is charged with driving while intoxicated and driving on the wrong side of the road, pursuant to VTL §§ 1192(3) and 1120(a), respectively.

The Defendant's initial omnibus motion was granted to the extent of directing a hearing be held to determine whether the Defendant's alleged statements were involuntarily made within the meaning of CPL § 60.45, whether the arresting officer lacked reasonable cause to believe the Defendant was operating his vehicle in violation of any subdivision of VTL § 1192, and whether any tangible evidence and testimony of any police officers pertaining to their observations of the Defendant should be suppressed, pursuant to Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961)and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979). Before that hearing was held, and following Defendant's motion to reargue, an order was issued expanding the scope of the hearing to include "whether the Defendant actually consented to having his blood drawn, and if not, whether it was drawn within two hours of his arrest." (Order 11/28/07, p. 3) On October 30, 2008 the matter was referred to this court (Engel, J.) to conduct a hearing in accordance with these orders, which hearing was held on that date.

At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); [*2]People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

The People attempt to meet their burden through the testimony of Sgt. Daniel Portmore, a Patrol Supervisor on the Highway Patrol of the Nassau County Police Department and P.O. Jerry Cooksey, an officer with the Highway Patrol of the Nassau County Police Department. The Defendant did not call any witnesses. After listening to and observing the demeanor of Sgt. Portmore and P.O. Cooksey, the court finds their testimony to be credible and makes the following findings of fact:

On January 1, 2007 Sgt. Portmore was working the 6:30 p.m. to 6:30 a.m. tour, which began on December 31, 2006. While on patrol he was alone in an unmarked car and in uniform. At approximately 2:50 a.m. on January 1, 2007 Sgt. Portmore was heading eastbound on Hempstead Turnpike, in East Meadow, New York, when he observed the car immediately in front of him, a white Nissan Ultima, make a left hand turn heading northbound on Merrick Avenue, fully in the lane furthest to the left, for what would otherwise accommodate southbound traffic. Sgt. Portmore turned in behind the vehicle and activated his lights and siren in an attempt to get the vehicle to either stop or move to the correct side of the road. The Nissan initially traveled on the wrong side of the road for approximately two hundred (200') feet and continued for another three hundred (300') to four hundred (400') feet as it pulled over into the northbound lanes, and then came to a stop alongside the northbound curb.

Sgt. Portmore pulled his vehicle behind the Nissan, and approached the driver's side on foot. The driver, who Sgt. Portmore identified as the Defendant, rolled down his window, at which point the Sargent smelled alcohol coming from the car. Sgt. Portmore also observed the Defendant to have glassy, red and watery eyes. Sgt. Portmore asked the Defendant if he realized that he was driving on the wrong side of the road. The Defendant did not respond. Sgt. Portmore then asked the Defendant if he had had anything to drink, to which the Defendant responded that he was coming from a party in Uniondale and stated, "I had a couple can't you let me go?" Sgt. Portmore observed the Defendant's speech to be slurred and also noted that the Defendant, who stated that he was born in the Ukraine, spoke with a heavy accent, but had no difficulty speaking or understanding English. The Sargent asked the Defendant for his license and registration, and observed the Defendant remove his license from his wallet without trouble, but have difficulty pulling his registration out of the plastic folder in which it was held. The Defendant was then asked out of his car and was told that Standardized Field Sobriety Tests ("SFST's") were going to be administered. As the Defendant exited his vehicle and walked to the sidewalk he was observed to stagger and be unsteady on his feet. Sgt. Portmore then performed SFSTs, as well as a finger to nose test, which were positive for a number of clues indicating intoxication. Sgt Portmore also administered a portable breath test, during which there was a problem getting the Defendant to blow properly, with the Defendant giving only "short puffs, but from which a reading of .19 was obtained.

Based on the manner in which the Defendant had been operating his vehicle, the Defendant's demeanor, the odor of alcohol from the Defendant's breath, the Defendant's [*3]bloodshot and glassy eyes, poor dexterity in retrieving his registration, and poor balance, as well as the results of the SFSTs, Sgt. Portmore was of the opinion that the Defendant was intoxicated. The Sargent then placed the Defendant under arrest and prepared to take him to Central Testing for a chemical test.

Officer Cooksey arrived at Merrick Avenue in East Meadow at approximately 3:15 a.m. The Defendant had already been placed under arrest and was sitting in Sgt. Portmore's vehicle. When Officer Cooksey first saw the Defendant he observed that the Defendant had glassy, bloodshot eyes, slurred speech and was unsteady on his feet. Officer Cooksey took the Defendant from Sgt. Portmore's vehicle to his own vehicle and transported the Defendant to Central Testing.

Approximately twenty (20) minutes after arriving at Central Testing, at around 4:35 a.m., Officer Cooksey asked the Defendant to submit to a chemical breath test and read the warnings contained in form PDCN 38 to the Defendant, without deviation. The Defendant indicated his consent to the breath test by first signing his name in the space provided for the word "consent or refuse," and then writing "consent" and signing his name in the appropriate space. A breath technician then took the Defendant into a back room, out of the sight of Officer Cooksey, for testing. Shortly thereafter, the Defendant was returned to Officer Cooksey, who was advised that the Defendant gave an insufficient sample and that the Defendant would have to be taken to the hospital for a chemical blood test, whereupon, at around 5:15 a.m., Officer Cooksey transported the Defendant to the Nassau University Medical Center ("NUMC").

Offficer Cooksey met another highway patrol officer, with a blood kit, at NUMC; and, at 6:00 a.m. Officer Cooksey again read the Defendant the warnings contained on form PDCN 38, without deviation, in English only, as follows:

You are requested to submit to a chemical test of your breath blood to determine whether or not you are intoxicated or your ability is impaired by the consumption of alcohol. The results of such test may be used for or against you in court. You may refuse to permit a test to be taken, however, refusal to submit to chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or driving privilege whether or not you are found guilty of the charge for which you were arrested. In addition, if you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced in evidence against you at any trial, proceeding, or hearing resulting from this arrest. You may notify a physician of your choosing to administer a chemical test in addition to the test you are now being requested to submit to. Will you submit to a breath blood?"

After these warnings were read the Defendant requested to speak to an attorney. The Defendant was given a telephone and he placed his call, only to receive an answering machine. At approximately 6:05 a.m. the Defendant gave his consent to the blood test by, again, first signing his name in the space provided for the word "consent or refuse," and then writing "consent" and signing his name in the appropriate space. At this time there was medical staff and three (3) police officers in the area.

REASONABLE SUSPICION AND PROBABLE CAUSE

"A police officer is authorized to stop a motor vehicle on a public highway when the officer observes or reasonably suspects a violation of the Vehicle and Traffic Law (citations omitted)." [*4]People v. Schroeder, 229 AD2d 917, 645 NYS2d 217 (4th Dept.1996) See also: Liebel v. Jackson, 261 AD2d 474, 690 NYS2d 94 (2nd Dept.1999); People v. Riggio, 202 AD2d 609, 609 NYS2d 257 (2nd Dept. 1994) Sgt. Portmore's observation of the Defendant operating his vehicle northbound in the southbound lane of Merrick Avenue for more than two (200') feet provided the Sargent with a sufficient basis for stopping the Defendant's vehicle.

Following this lawful stop, the manner in which the Defendant's vehicle was operated, his slurred speech, his unsteady gait, the odor of alcohol, the Defendant's glassy and bloodshot eyes, his admission that he had been drinking and his inability to perform various SFSTs provided Sgt. Portmore with probable cause to believe that the Defendant had been driving while intoxicated. See: People v. Ball, 141 AD2d 743, 529 NYS2d 840 (2nd Dept.1988); People v. Troche, 162 AD2d 483, 556 NYS2d 403 (2nd Dept.1990); People v. Schmitt, 262 AD2d 588, 692 NYS2d 656 (2nd Dept.1999)

VOLUNTARINESS OF STATEMENTS

It is well established that a temporary roadside detention pursuant to a routine traffic stop is not custodial in nature. People v. Myers, 1 AD3d 382, 766 NYS2d 581 (2nd Dept. 2003) lv. den. 1 NY3d 631, 777 NYS2d 30 (2004); People v. Parris, 26 AD3d 393, 809 NYS2d 176 (2nd Dept. 2006) lv. den. 6 NY3d 851, 816 NYS2d 757 (2006); People v. Gutierrez, 13 AD3d 268, 787 NYS2d 266 (1st Dept. 2004) It is equally well established that after stopping a vehicle for an alleged Vehicle and Traffic Law violation a police officer may conduct a reasonable initial interrogation attendant to a roadside investigation. People v. Harris, 186 AD2d 148, 587 NYS2d 425 (2nd Dept.1992); People v. Kearney, 288 AD2d 398, 733 NYS2d 460 (2nd Dept. 2001) That is what occurred in this matter.

The Defendant's alleged statement, that he was coming from a party in Uniondale and "I had a couple can't you let me go?" was voluntarily made in response to a proper roadside investigation. There was no testimony offered, however, concerning the second statement allegedly made by the Defendant at Central Testing, as disclosed on the People's 710.30 notice. Accordingly, this latter statement is suppressed.

CHEMICAL BLOOD TEST

Vehicle and Traffic Law § 1194, provides, in pertinent part:

2. Chemical tests. (a) When authorized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer:

(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for any such violation; ..., (b) Report of refusal. (1) If: (A) such person having been placed under arrest; ... and having thereafter been requested to submit to such chemical test and having been informed that the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked,... , shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is [*5]arrested or detained, refuses to submit to such chemical test or any portion thereof, ... , the test shall not be given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made.

(f) Evidence. Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.

Relying principally on People v. Brol, 81 AD2d 739, 438 NYS2d 424 (4th Dept. 1981), the Defendant argues, in part, that the results of the chemical blood test, having been administered more than two (2) hours after his arrest, are inadmissable. The Defendant's reliance on Brol, id., is misplaced. While the court in Brol, id. set forth a bright line evidentiary rule holding that "[u]nless the test is taken within the two-hour limit, [See: VTL § 1194] ..., the results are not competent evidence and may not be received in evidence against the operator (citations omitted)[,]" that decision has been overruled, sub silentio, by the Court of Appeals and subsequent Fourth Department decisions.

In People v. Atkins, 85 NY2d 1007, 1009, 630 NYS2d 965, 966 (1995) the Court of Appeals recognized that "Defendant's contention that the two-hour limitation in section 1194(2)(a) was intended by the Legislature to be an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver's consent, is unpersuasive." Harkening back to People v. Ward, 307 NY 73, 120 NE2d 211 (1954), which drew a distinction between driver's who were deemed to have consented to a chemical test and those who voluntarily agree to take the test, the court held, "the two-hour limitation contained in Vehicle and Traffic Law § 1194(2)(a) has no application ... where, ... , defendant expressly and voluntarily consented to administration of the blood test." People v. Atkins, supra . at 1009, 630 NYS2d 965, 966 (1995) In People v. Zawacki, 244 AD2d 954, 665 NYS2d 172 (4th Dept.1997), citing Atkins, supra ., the Fourth Department altered its holding in Brol, supra ., recognizing "that the two-hour limit is inapplicable to chemical tests administered pursuant to defendant's actual consent (citation omitted)." The Fourth Department reiterated this holding in People v. Hoffman, 283 AD2d 928, 725 NYS2d 494 (4th Dept. 2001) It is worth noting that here in the Second Department, nine (9) years before the Court of Appeals' decision in Atkins, supra ., the Appellate Division held "The requirement that the blood sample be obtained within two hours after arrest, ... , is relevant only with regard to blood samples obtained in cases where no express consent has been given." People v. Mills, 124 AD2d 600, 601, 507 NYS2d 743, 744 (2nd Dept.1986) This holding has been reiterated time and again in this department. See: People v. Dixon, 149 AD2d 75, 543 NYS2d 993 (2nd Dept. 1989); People v. Stelmach, 191 AD2d 733, 595 NYS2d 509 (2nd Dept.1993); People v. Casimiro, 308 AD2d 456, 764 NYS2d 198 (2nd Dept. 2003 app. den. 1 NY3d 539, 775 NYS2d 244 (2003)

The Defendant argues that his consent to the chemical blood test was not knowingly and voluntarily given. Specifically, the Defendant argues that refusing to submit to a chemical test to be administered more than two (2) hours after one's arrest will not result in a license suspension or revocation pursuant to VTL § 1194 and that Officer Cooksey's reading the warnings regarding [*6]license suspension and revocation for refusing to submit to the chemical blood test to the Defendant was erroneous and coercive. The court does not agree.

In People v. Morales, 161 Misc 2d 128, 130, 611 NYS2d 980, 981 (Crim.Ct. Queens Co.1994) the court noted that "Subdivision (2)(c) of this statute [VTL § 1194] enumerates the issues which are the subject of an administrative hearing to determine whether a driver's license should be revoked after a refusal to take a chemical test." The court then went on to hold that "[r]evocation does not require an affirmative finding that the chemical test was offered within two hours of the driver's arrest." People v. Morales, supra . at 130, 611 NYS2d 980, 981 (Crim.Ct. Queens Co.1994) Similarly, in People v. Coludro, 166 Misc 2d 662, 667 634 NYS2d 964, 968 (N.Y.City Crim.Ct.,1995) the court held that "the defendant's refusal should not be suppressed merely because the refusal occurred more than two hours after arrest (citation omitted)." It logically follows that if evidence of a defendant's refusal is admissible, although the warnings of suspension and revocation were given more than two (2) hours after a defendant's arrest and his refusal was likewise more than two (2) hours thereafter, then the reading of those warnings after the expiration of two (2) hours is not coercive. Consistent with this finding is the fact that VTL § 1194(2)(f), which provides for the evidentiary use of a defendant's refusal, makes no mention of a time limitation, two (2) hours or otherwise, and only requires "a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." As noted in People v. Ward, 176 Misc 2d 398, 673 NYS2d 297 (Sup. Ct. Richmond Co.1998), to find otherwise would render "[t]he offer of the chemical test sanctioned by Atkins ... a mere gesture."

Based upon the foregoing, it is the finding of this court that the Defendant knowingly and voluntarily consented to the chemical blood test performed. This finding, however, should in now way be taken as a determination by this court of the reliability of a chemical test administered more than two (2) hours after the Defendant's arrest. "Even though a BAC test administered after two hours may be admissible under Atkins, the scientific relevancy of the test may still be challenged ...." People v. Holbrook, 20 Misc 3d 920, 864 NYS2d 726 (Sup. Ct. Bronx Co. 2008) As noted in People v. Victory, 166 Misc 2d 549, 551, 631 NYS2d 805, 807 (Crim.Ct. Kings Co.1995), "[t]he Two Hour Rule ... creates a presumption that the BAC test results are admissible. Absent such a rule the prosecutor would need to establish by expert testimony the scientific relevancy of the test in every drunk driving prosecution." Where the test is administered in excess of two (2) hours after the Defendant's arrest, or the performance of a breath test pursuant to VTL § 1194(1)(b), no such presumption of reliability exists. "Consent to taking a test which may lead to unscientific results should not make the test results competent or relevant." People v. Victory, id. at , 631 NYS2d 805, (Crim.Ct. Kings Co.1995)

In the matter sub judice, unlike People v. Holbrook, supra ., the hearing did not address the question of the reliability of the chemical blood test performed on the Defendant more than two (2) hours after his arrest; nor did the People have any reason to believe that such testimony would be necessary at the hearing. As previously indicated, this hearing was limited to the issue of "whether the Defendant actually consented to having his blood drawn, and if not, whether it was drawn within two hours of his arrest." (Order 11/28/07, p. 3) Having found that the Defendant consented to the chemical blood test, the fact that the test was performed in excess of tow (2) hours after his arrest, shall not, per se, result in the suppression of the test results. This ruling, however, is without prejudice to the Defendant raising the issue of the tests reliability in the trial part. [*7]

This constitutes the decision and order of the court.

Dated: Hempstead, New York

November 20, 2008

___________________________

Andrew M. Engel

J.D.C.