People v McLean

[*1] People v McLean 2009 NY Slip Op 51239(U) [24 Misc 3d 1203(A)] Decided on June 12, 2009 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2009
Supreme Court, Bronx County

The People of the State of New York,

against

Jamal McLean, Defendant.



31187C-07



Robert Soshnick, Esq.

For the Defendant

Jaimee Nadell

Tara Ladd

Assistant District Attorneys

For the People

Richard L. Price, J.

The defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law 1192 [3] and [1]) and moves to suppress any evidence or testimony at trial concerning his alleged refusal to submit to a chemical breath analysis including the videotape recording of those events claiming that his arrest was made without the requisite probable cause. For the same reason, defendant further seeks suppression of the arresting officer's observations of the defendant preceding his arrest as well as any statements he allegedly made to the arresting officer.

The District Attorney contends that evidence and testimony concerning the defendant's alleged refusal, alleged statements and the arresting officer's observations are admissible because his arrest was lawfully made based upon the requisite probable cause.

On March 19, 2009, this court commenced a hearing on the issue of whether the People should be permitted to introduce evidence and elicit testimony concerning the defendant's alleged refusal to submit to a blood alcohol content (BAC) or Intoxilyzer test at trial, as well as whether the arresting officer's stop of the defendant's vehicle was justified. This hearing was continued on March 19 and April 2, 2009. After hearing oral argument from both the defendant and the People on April 2 of 2009, and viewing the videotape recording, defendant's motion is denied in its entirety.

Findings of Fact [*2]

At the hearing, the People called three witnesses, New York City Police Officer Robert Regnier and Sergeant Angel Torres of the Bronx Anti-Crime Unit (H: 4, 73, respectively), and Officer Manuel Vargas of the Housing Bureau Bronx at Viper 9 in the Bronx (H: 94). Defendant called no witnesses. This court finds the officers' testimony credible to the extent indicated herein. Officer Regnier and Sergeant Torres stated that on May 17, 2007, they were assigned to the 47th precinct, and were out on patrol in plainclothes in an unmarked vehicle (H: 5-6, 73-74). At approximately 12:55 a.m. they spotted a black Mercedes with New Jersey dealer plates parked on the side of the road with the engine running. The Officers observed the vehicle as having dark tinted windows that, based on their experience and training, appeared to be over the legal limit.[FN1] The officers pulled their vehicle behind the Mercedes, and then approached on foot. Officer Regnier approached on the passenger side, while Sergeant Torres approached on the driver's side. Sergeant Torres asked the defendant, who was sitting in the driver's seat, to lower his windows (H:7). Upon the defendant lowering his windows, Officer Regnier smelled alcohol emanating from the vehicle. Sergeant Torres then asked the defendant to produce his driving license and vehicle registration (H: 76). The defendant responded by stating, "I didn't do shit, I don't have to give you my fucking license" (H:8, 76). Sergeant Torres reiterated his request for the defendant's driving license and vehicle registration after which the defendant, while continuing to curse at the officers, reached toward the glove compartment area and attempted to open the glove compartment with a button located on the dashboard (H:8, 77). After struggling to open the glove box, the defendant pulled out a mini-shield and stated, "My brother's a cop in White Plains, this is a real fucking badge, yours ain't shit." At that time, Sergeant Torres smelled alcohol, and observed the defendant to have bloodshot eyes. Believing the defendant to be intoxicated, Sergeant Torres then asked him whether he had been drinking (H:77). As the defendant continued to yell and scream, Sergeant Torres asked the defendant to exit the vehicle, observed the defendant having difficulty standing up, and placed him in handcuffs (H:78).[FN2]

Sergeant Torres and Officer Regnier then transported the defendant to the 45th Precinct for the purpose of administering an Intoxilyzer breath test. Officer Manuel Vargas, who at the time was assigned to the Highway One Unit of Highway Patrol, offered the defendant an opportunity to submit to an Intoxilyzer breath test to which he replied that he would not (H:95-96). Officer Vargas then advised the defendant of the consequences of refusing to submit to an Intoxilyzer, which the defendant again refused. Officer Vargas then offered the defendant the opportunity to demonstrate his mechanical skills by performing several physical coordination tests, which he also refused. The defendant then stated, "I don't have to answer your questions; this is entrapment" (H:97). Viewing the videotape recording of that proceeding, the court finds that the defendant was provided with clear and unequivocal warnings as to the consequences of refusing to submit to either physical testing or a blood alcohol analysis. The videotape also [*3]clearly reflects that the defendant persistently refused to submit to an Intoxilyzer test.

Conclusions of Law

Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable cause to show the legality of the police conduct (People v Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v Berrios, 28 NY2d 361 [1971]; People v Baldwin, 25 NY2d 66 [1969]). Here, the People have presented sufficient evidence that the "stop" and approach of defendant's vehicle was proper based upon reasonable suspicion that the defendant's car windows were tinted beyond the legal limit (see People v Ingle, 36 NY2d 413 [1975]).Upon approaching the vehicle, the officers observed the defendant seated behind the steering wheel, with the keys in the ignition and the engine running. Sergeant Torres smelled a strong odor of alcohol and observed him to have bloodshot, watery eyes. In addition, after initially refusing to produce his driver's license and vehicle registration, the officers witnessed the defendant struggle, and eventually fail, to open his glove compartment. At that point, Sergeant Torres had reasonable suspicion to believe that the defendant was intoxicated and was justified in directing him out of the vehicle (see People v DeBour, 40 NY2d 210, 223 [1976]). Upon observing that defendant was unsteady on his feet, the officers had probable cause to arrest the defendant for operating a motor vehicle while intoxicated (see People v Bigelow, 66 NY2d 417, 423 [1985]; People v Goodell, 164 AD2d 321, 323-324 [4th Dept 1990]; aff'd, 79 NY2d 869 [1992]; People v Farrell, 89 AD2d 987, 988 [2d Dept. 1982]). Accordingly, the challenge to the legality of defendant's stop and arrest fails.

Regarding defendant's alleged refusal, the People bear the burden of establishing that the defendant refused to submit to a chemical test (People v Camagos, 160 Misc 2d 880, 881 [Sup Ct, Qns County 1993, Yellen, J]). To meet this burden, however, the People are not required to disprove every possible fact that might weigh in favor of suppression (People v Womack, 18 Misc 3d 1135 [A] [Crim Ct, NY County, 2008, Whiten, J]).

Vehicle and Traffic Law 1194 (2) (f) provides:

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.Courts have permitted the People to use evidence of a refusal to submit to a chemical test as consciousness of guilt evidence where a defendant charged with driving while intoxicated was warned of the consequences of doing so in clear and unequivocal language (People v Reynolds, 133 AD2d 499 [3rd Dept 1987]; People v Coludro, 166 Misc 2d 662 [Crim Ct, Kgs County 1995, Ruchelsman, J]). Here, the refusal warnings administered to the defendant were indeed clear and unequivocal, as was his subsequent refusal.

Finally, there is also no basis for suppressing the statements made by the defendant at the scene of his arrest and at the precinct. The pre-Miranda statements made by defendant at the scene of his arrest were spontaneous and not the product of custodial interrogation (see, People v Zapata, 41 AD3d 109 [1st Dept. 2007]; People v Garcia, 19 AD3d 200 [1st Dept. 2005]). The [*4]statements made by the defendant to the police officer who was to administer the breathalyzer and coordination tests at the precinct are also admissible. Such tests need not be preceded by Miranda warnings, and, a videotape of such tests, including any colloquy between the test giver and the defendant not constituting custodial interrogation, is admissible (see People v Jacquin, 71 NY2d 825 [1988]). Having viewed the videotape in this case, this court finds that the colloquy between the test giver and the defendant did not constitute custodial interrogation. As such, defendant's motion to suppress his statements to law enforcement authorities is denied as well.

Accordingly, this court finds that viewing the evidence in the light most favorable to the People (see People v Williams, 84 NY2d 925 [1994]; see also People v Contes, 60 NY2d 620 [1983]), they have satisfied their burden of demonstrating by a preponderance of the evidence that the stop and subsequent arrest of the defendant was lawful, that the defendant was given a warning in clear and unequivocal language of the consequences of refusing to submit to a chemical test and that he persistently refused, and that any statements he allegedly made were lawfully obtained. Defendant's motion to suppress any evidence or testimony of the defendant's

alleged refusal is therefore denied.

This constitutes the decision and order of the court.

Dated:June 12, 2009

ENTER

Richard Lee Price Footnotes

Footnote 1: It should be noted that Officer Regnier placed a tint mete on the glass of the defendant's vehicle and determined that there was a 14% light transmittal and the legal limit is a 70% light transmittal.

Footnote 2: In addition to the defendant, there was a passenger inside the vehicle who was also ordered out of the vehicle and arrested. However, that individual was charged with unlawful possession of a gravity knife after the officers observed it in his pocket (H:22).