People v Velasquez
Annotate this CaseDecided on August 28, 2009
District Court of Suffolk County, First District
The People of the State of New York,
against
Elmer Y. Velasquez, Defendant.
2008SU33852
Matthew Fleischer
Attorney for Defendant
176 Mineola Blvd.
Mineola, NY 11501
THOMAS M. SPOTA, III
Suffolk County District Atty.
400 Carleton Avenue
Central Islip, NY 11722
By: Karen E. Seidler
Assistant District Attorney
Salvatore A. Alamia, J.
The defendant is charged with Driving While Intoxicated in violation of VTL 1192(3), Unlicensed Operation in violation of VTL 509(1), and Failing to Yield Right of Way in violation of VTL 1141. On April 29 and May 1, 2009, a Dunaway, Huntley and refusal hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including evidence of statements allegedly made by the defendant and evidence of the defendant's refusal to submit to a breath test. The parties were given the opportunity to submit written closing statements, which have now been deemed waived and the matter submitted for determination.
Two witnesses, Suffolk County Police Officers Robin Cohen and Luis Mangual, testified on
behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes
the following findings of fact and conclusions of law.
Findings of Fact
On June 27, 2008, at approximately 9:40 p.m., Officer Cohen was on patrol in the area of Greenlawn, Town of Huntington, County of Suffolk, driving northbound on Broadway, a two-lane roadway. As the officer approached the intersection of Broadway and Lawn Street, two vehicles suddenly drove out from Lawn Street without stopping at the stop sign and turned southbound onto Broadway, cutting her off and forcing her to swerve her patrol car into the oncoming lane of traffic and back into the northbound lane to avoid striking each of the vehicles.
Officer Cohen lost sight of the first vehicle but made a [*2]u-turn, called for assistance, and was able to pull over the second vehicle which she had kept in her sight. After the first unit arrived to assist, Officer Cohen approached the stopped vehicle and asked the driver for his license, registration and proof of insurance. The driver, whom she identified as the defendant, did not have a driver's license but produced a passport as identification, together with the vehicle registration showing that the vehicle was registered to another person. Officer Cohen observed that the defendant had an odor of alcohol on his breath and that his eyes were bloodshot and glassy. The officer had trouble communicating with the Spanish-speaking defendant, who was not proficient in English.
Officer Cohen had the defendant exit his vehicle for field performance tests and observed that he was unsteady on his feet. By this time at least three additional officers had arrived to assist. Officer Larkin, one of the assisting officers, spoke some Spanish and administered a horizontal gaze nystagmus (HGN) test to the defendant in Officer Cohen's presence. Officer Cohen did not understand what was said, however, and no further testimony was taken regarding the field tests. The defendant was placed under arrest for Driving While Intoxicated and transported to the Second Precinct for processing.
Police Officer Luis Mangual, a Spanish-speaking officer, was at the Second Precinct when Officer Cohen arrived with the defendant at 9:56 p.m. and was asked for his assistance in translating. Officer Mangual testified at the hearing that he explained to the defendant in Spanish that he had been arrested for Driving While Intoxicated, and the defendant responded that he did not know why he had been arrested, that she (Officer Cohen) had pulled him over for no reason, and that he didn't have a license but there was no reason for her to pull him over. The defendant also stated that he'd had a couple of beers, and Officer Mangual observed that the defendant's eyes were red and bloodshot and that he had the smell of alcohol on his breath.
Officer Cohen read the "chemical test request" portion of the Alcohol/Drug Influence Report (AIR) to the defendant in English, including the printed warnings of the consequences of refusing (People's Exhibit 1 in evidence). Officer Mangual then explained the test and testing procedure to the defendant in Spanish, and also explained that he had the right to refuse to take the test, but that if he refused his license would be suspended. At no time did the defendant indicate that he did not understand the request or warnings as given by Officer Mangual in Spanish. Officer Cohen read the chemical test request to the defendant three times in English, recording the times of each [*3]request on the AIR form as 22:55, 23:04 and 23:26, and each time Officer Mangual provided a Spanish translation. The defendant repeatedly said to Officer Mangual, in Spanish, that he wasn't sure what to do, and the officer told him that he couldn't tell him what to do. Officer Mangual asked the defendant to indicate his response and sign the form. When asked to take the test, the defendant shook his head no, and the officer recorded this as his response on the AIR form. Officer Mangual testified that he then wrote the words "refused" and "refused to sign" on the portion of the form where the defendant was asked to place his initials and signature because the defendant would not do so.
Officer Mangual next read a Spanish version of the Miranda warnings to the
defendant which was printed on the reverse side of the Miranda card. The officer
recorded the defendant's responses on the Miranda portion of the AIR form, indicating
that all of the defendant's statements were made to him in Spanish. When asked if he understood
each of the rights explained by the officer, the defendant answered "si." When asked if he wished
to contact a lawyer, the defendant stated that he wanted to call his family first, and when asked if
he wished to talk to the officer without a lawyer, the defendant answered "si." Officer Mangual
then asked the defendant the questions printed on the bottom portion of the AIR form, translating
them into Spanish, and recorded the defendant's answers on the form translated into English. In
response to the questions "Have you been drinking alcoholic beverages," "If so, what," and "In
what quantities," the defendant answered "yes," "two Budweisers" and "two small cans,"
respectively.
Conclusions of Law
Officer Cohen had a lawful basis for stopping the defendant's vehicle based on the officer's observations that the vehicle was being operated in an unsafe manner and in violation of the Vehicle and Traffic Law. People v. Robinson, 97 NY2d 341 (2001); People v. Irizarry, 282 AD2d 483 (2d Dept. 2001), lv. den. 97 NY2d 729 (2002). These observations, together with the officer's observations of defendant's physical condition, gave the officer probable cause to arrest the defendant for Driving While Intoxicated. See, People v. Kowalski, 291 AD2d 669 (3rd Dept. 2002); People v. Lamb, 235 AD2d 829, 830-831 (3rd Dept. 1997); People v. Kalwiss, 6 Misc 3d 129A, 2005 NY Slip Op 50057U (App. Term, 9th & 10th Jud. Dists. 2005); CPL 140.10(1). The Court accordingly finds that any evidence obtained as a result of defendant's stop and arrest is not subject to suppression for lack of probable cause. [*4]
Evidence regarding the HGN test was not considered on the issue of probable cause, as the officer who administered the tests was not produced at the hearing, nor shall any such evidence be admitted at the trial.
A volunteered statement by a defendant who is in police custody will be admissible at trial, even in the absence of Miranda warnings, provided that the statement was genuinely spontaneous and not the result of inducement, provocation, encouragement or acquiescence. People v. Rivers, 56 NY2d 476, 479 (1982), rearg. den. 57 NY2d 775 (1982). Because of the language barrier, Officer Mangual was asked to translate to the defendant when he was brought in to the Second Precinct. The officer's initial explanation to the defendant, in Spanish, that he had been arrested for Driving While Intoxicated was merely informative and not reasonably likely to elicit an incriminating response from the defendant. The Court accordingly finds that the defendant's statements to Officer Mangual that he did not know why he had been arrested, that Officer Cohen had pulled him over for no reason, that he didn't have a license but there was no reason for her to pull him over, and that he'd had a couple of beers, were spontaneous and are admissible at trial. See, People v. Rivers, supra , 56 NY2d at 479; People v. Vartholomeou, 21 Misc 3d 134A (App. Term, 9th & 10th Jud. Dists. 2008), lv. den. 12 NY3d 763 (2009); see also, People v. Hylton, 198 AD2d 301 (2d Dept. 1993), lv den. 82 NY2d 925 (1994); People v. Harrison, 251 AD2d 681, 677 NYS2d 794 (2d Dept. 1998), lv den. 92 NY2d 893 (1998).
In order for evidence of a defendant's refusal to submit to a chemical test to be admissible at trial, the People must show that the request was made within two hours of the defendant's arrest or within two hours after a breath test (see, VTL 1194[2][a]; People v. Brol, 81 AD2d 739 [4th Dept. 1981]), and that the defendant "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that [he] persisted in the refusal." VTL 1194(2)(f); see, People v. Thomas, 46 NY2d 100, 108 (1978). The three requests for the defendant to take the test occurred within two hours of his arrest. No evidence has been offered to suggest that defendant did not understand the requests or warnings, which were given to him in English from the AIR form and then translated into Spanish, and the requests and refusal warnings complied with statutory requirements.
A defendant's refusal may be evidenced by words or conduct. People v. Massong, 105 AD2d 1154 (4th Dept. 1984), lv. den. 64 NY2d 891 (1985); People v. Richburg, 287 AD2d 790 (3rd Dept. [*5]2001), lv. den. 97 NY2d 687 (2001). The defendant's conduct, by repeatedly stating that he did not know what to do, shaking his head "no" when asked to submit to the test, and then refusing to initial and sign the AIR form, evinced his persistent refusal to submit to the test. The People have met their burden of demonstrating that defendant refused to take the chemical test and that he persisted in his refusal, and evidence of the refusal shall be admissible at trial. See, VTL 1194(2)(f); People v. Thomas, supra , 46 NY2d at 108.
Turning to the defendant's post-Miranda statements, the determination as to whether a defendant has made a knowing, voluntary and intelligent waiver of his rights is "essentially a factual issue that must be determined according to the circumstances of each case." People v. Williams, 62 NY2d 285, 288 (1984). A defendant with limited command of the English language must have sufficient understanding to appreciate the import of the Miranda warnings in order to effect a valid waiver of his rights. See, People v. Madrid, 52 AD3d 530 (2d Dept. 2008); People v. Alexandre, 215 AD2d 488 (2d Dept. 1995), lv. den. 86 NY2d 789 (1995). For a valid waiver to have occurred, the People must show that the defendant understood that there was no need to speak to the police, that he had a right to the assistance of a lawyer and that whatever statement he made could be used in court by the prosecution. See, People v. Alexandre, supra ; see also, People v. Vanegas, 237 AD2d 469 (2d Dept. 1997). The People have met their burden of demonstrating that the defendant understood his rights, which were given to him in Spanish, and that he voluntarily answered the questions on the AIR form as translated by Officer Mangual. The defendant's statement, when asked if he wished to contact a lawyer, that he wished to call his family first, was not a clear and unequivocal request for counsel and did not invoke his Sixth Amendment right to counsel. See, People v. Glover, 87 NY2d 838 (1995). The defendant's post-Miranda statements, recorded on the bottom portion of the AIR form, therefore are admissible into evidence at trial.
This constitutes the decision and order of the Court.
The parties are directed to appear on the New Court Date set forth below.
New Court Date:
Dated:
J.D.C.
Matthew Fleischer
[*6]
Attorney for Defendant
176 Mineola Blvd.
Mineola, NY 11501
THOMAS M. SPOTA, III
Suffolk County District Atty.
400 Carleton Avenue
Central Islip, NY 11722
By: Karen E. Seidler
Assistant District Attorney
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