People v Borgella

[*1] People v Borgella 2009 NY Slip Op 51226(U) [24 Misc 3d 1202(A)] Decided on May 28, 2009 Criminal Court Of The City Of New York, Kings County Yearwood, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 2009
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Bonnard Borgella, Defendant.



2007KN096761



FOR THE MOTION

Scott G. Cerbin, Esq.

Attorney for Defendant

26 Court St., Suite 810

Brooklyn, NY 11242

(718) 596-1829

UNOPPOSED

Hon. Charles J. Hynes

District Attorney, Kings County

For the People

Renaissance Plaza

350 Jay Street

Brooklyn, NY 11201-2908

(718) 250-3000

Alvin M. Yearwood, J.

Defendant's April 7, 2009 motion for an order granting suppression of a chemical test pursuant to Vehicle and Traffic Law § 1194(2)(a)(1), People v Victory, 166 Misc 2d 549 (Crim Ct, NY County, 1995) and CPL § 710.25, or in the alternative for a pre-trial hearing, is denied for the following reasons.

Defendant is charged with operation of a motor vehicle under the influence of alcohol (VTL 1192[1,2,3]) and leaving the scene without reporting (VTL 600[1][a]). According to the accusatory instrument, at approximately 4:20 am on December 29, 2007 at State and Smith Streets in Kings County, defendant allegedly collided with a parked police vehicle and then drove away without reporting the accident. When stopped approximately a block away from the collision, he allegedly exhibited signs of intoxication. A chemical test some four hours later, showed a blood alcohol concentration level (BAC) of .148%. [*2]

Relying on People v Ayala, 89 NY2d 874 (1996) and People v Krebs, 195 AD2d 696 (3d Dept, 1993), the defense argues that the admissibility of the chemical test results may be litigated at a pre-trial suppression hearing. Defendant argues that such hearing, and ultimate suppression, must be granted in the instant case on three grounds. First and second, counsel alleges that he, "believes that the results of the chemical (and field sobriety) tests administered herein are inaccurate, for a variety of reasons. Including but not limited to the arresting/testing officer's failure to comply with New York State Department of Health Rules and Regulations § 59.5(b) - which mandates a 15 minute observation period - and a violation of the two-hour rule' contained in VTL 1194(2)." (Emphasis supplied).

Third, counsel alleges that he, "viewed the video tape of the chemical test in this case. While the test was clearly given more than two hours after arrest, the police erroneously advised the defendant that if he refused the breath test his license would be suspended and subsequently revoked."

Counsel further argues, in an accompanying Memorandum of Law, that a pre-trial hearing is required to avoid the potential for prejudice if the issue of admissibility is litigated during trial in the jury's presence.

Preliminarily, the Court notes that although the People have not responded in opposition, their failure to do so does not warrant a conclusion that defendant's arguments have been conceded and that the relief requested must be granted. The Court finds that the defense arguments relate to questions of law and that to the extent the defense conjectures certain facts, those facts have not been explicitly alleged and supported by sworn, non-hearsay, factual assertions. In particular, counsel's "belief", that the chemical tests administered were inaccurate because a particular Department of Health rule was violated, is factually unsupported.

Counsel's other arguments relate to questions of law with respect to the validity of a chemical test administered more than two hours after arrest and the effect of warnings given by the police regarding the consequences of a failure to submit to the test. A review of the central authorities cited in support of defendant's motion demonstrates that the relief sought is not warranted.

With respect to pre-trial suppression, counsel unjustifiably extends the specific holding in People v Ayala, 89 NY2d 874 (1996) to argue that a violation of the two-hour rule of VTL 1194(2)(a) requires suppression of the test results. Ayala simply held that where a trial court granted suppression on those grounds, the People had a right to appeal that ruling. The Court finds unwarranted the defense extrapolation from that holding to a conclusion that the Court of Appeals held that a test administered more than two hours after arrest [*3]must be suppressed. That leap is not logically justified. The other main authority cited by the defense, People v Krebs, 195 AD2d 696 (3d Dept, 1993), stands for the proposition that where sufficient facts have been alleged, a pre-trial suppression may be held. In the instant case, as noted supra, factual assertions are presented as mere belief.

With respect to the admissibility of a chemical test administered more than two hours after an arrest, this Court also respectfully declines to follow the holding in People v Victory, 166 Misc 2d 549 (Crim Ct, NY County, 1995). Rather, absent specific appellate mandate to the contrary, this Court relies upon the holding in People v Atkins, 85 NY2d 1007 (1995). Atkins held that where a defendant expressly and voluntarily consented to the administration of a chemical test (the drawing of a blood sample), the requirements of VTL 1194(2) were not violated even though the test was conducted more than two hours after the arrest. The Court of Appeals rejected the defense contention that, "[t]he 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,..." (People v Atkins, supra, 85 NY2d 1007, 1009).

In the instant case, counsel makes no factual allegation that defendant did not consent, within or beyond the two-hour limit, to administration of the chemical test. The fact remains that the defendant did submit to the test. In this Court's view, and at this juncture, with respect to the timing of consent and administration, the test results are admissible. The weight of the test results, given the People's allegations, is to be determined by the trier of fact following the laying of a sufficient, evidentiary foundation by the People. With respect to the related defense argument that the police "erroneously advised the defendant that if he refused the breath test his license would be suspended and subsequently revoked", that argument, and the defense implication that defendant was somehow coerced into consenting to the test, are both without merit since the statute clearly provides for the police to so inform the arrestee (VTL 1192[2][b][1]).

Lastly, with respect to the defense contention regarding alleged violations of 10 NYCRR § 59.5, entitled "Breath analysis; techniques or methods", the applicability of that rule has been held to relate to weight and not admissibility (See, People v Schuessler, 14 Misc 3d 30 (App Term, 9th & 10th Jud Dists 2006).

With respect to potential prejudice during trial related to admission of test results, assuming the case will be tried before a jury, the Court will be able to fashion, with input from counsel, a procedure to determine admissibility before testimony or documents are admitted with respect to the ultimate question of the extent of [*4]defendant's BAC. Concerns about prejudicing the jury are also premature in that the People may choose to reduce the charges and proceed via a bench trial. In order to facilitate resolution of the instant case, the People shall advise Court and counsel whether they intend to reduce the charges and proceed to trial without a jury.

In conclusion, the Court finds the defense has failed to set forth an adequate factual and legal basis to warrant suppression of the chemical test results or to hold a pre-trial hearing. Under these circumstances, defendant's motion for that relief is denied. The foregoing constitutes the Court's decision and order. The clerk shall provide a copy hereof to counsel.

Alvin Yearwood

CRIMINAL COURT JUDGE