People v Jacob

[*1] People v Jacob 2009 NY Slip Op 52419(U) [25 Misc 3d 1235(A)] Decided on November 30, 2009 Supreme Court, Nassau County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
Supreme Court, Nassau County

The People of the State of New York, Plaintiff,

against

Joseph Jacob, Defendant.



1442N/09

Norman St. George, J.

The Defendant is charged with one (1) count of violating Penal Law §120.10(3), Assault in the First Degree as a class B felony; one (1) count of violating Penal Law §120.25, Reckless Endangerment in the First Degree as a class D felony; one (1) count of violating Penal Law §120.03(1), Vehicular Assault in the Second Degree as a class E felony; one (1) count of violating Vehicle and Traffic Law §1192.4, Driving While Ability is Impaired by Drugs as an unclassified misdemeanor; one (1) count of violating Vehicle and Traffic Law §1212, Reckless Driving as an unclassified misdemeanor; one (1) count of violating Vehicle and Traffic Law §1180-a, Exceeding Reasonable Speed Limits as a traffic infraction; one (1) count of violating Vehicle and Traffic Law §1120-a, Driving on the Right Side of the Roadway as a traffic infraction; and four (4) counts of violating Vehicle and Traffic Law §1128-a, Driving on Roadways Laned for Traffic as a traffic infraction.

On November 10, 2009 through November 12, 2009, upon written stipulation by both parties, this Court conducted a Huntley, Mapp, and Dunaway hearing. (See People v. Huntley, 15 NY2d 72 [1965]; Mapp v. Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and Dunaway v. New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley portion of the hearing was with respect to the defendant's alleged statement to the Police that he had taken "60 Xanax." The Mapp portion of the hearing was with respect to a letter and empty pill bottles allegedly seized from the defendant's home.[FN1] [*2]

The People called three witnesses at the hearing: Police Officer Martin Johnstone, a fifteen and a half year veteran of the Nassau County Police Department; Police Officer William Beal, a fifteen year veteran of the Nassau County Police Department; and Police Officer John Visconte, a sixteen year veteran of the Nassau County Police Department. The defendant did not call any witnesses. Based on the hearing testimony, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

This Court finds the testimony of the Police Officers to be credible. On September 23, 2008, Officer Johnstone was on routine motor patrol in the Seventh Precinct of Nassau County. He was operating a marked Nassau County Police car and was in uniform. At approximately 2:45 p.m., he received a radio assignment to respond to an auto accident at the intersection of Carmans Road and Sunrise Highway in Massapequa, Nassau County, New York. Upon arriving at that location, Officer Johnstone observed a damaged 1997 Jeep which appeared to have been involved in an auto accident with another vehicle. Officer Johnstone approached the Jeep and observed a person, identified in Court as the defendant, seated in the driver's seat. Officer Johnstone testified that the defendant appeared to be fading in and out of consciousness. Officer Johnstone asked the defendant if he was hurt or had any medical problems. The defendant replied "no." Officer Johnstone asked the defendant if he was taking any medication and the defendant replied "no." Officer Johnstone asked the defendant a second time if he was taking any medication and the defendant stated that he took "60 Xanax." Officer Johnstone testified that he wanted to be sure what the defendant said and asked the defendant two additional times what he took and both times the defendant replied "60 Xanax." Officer Johnstone testified that he did not make any observations of the defendant consistent with either alcohol or drug use, and therefore could not determine whether the defendant was under the influence of anything. The defendant was then treated by Emergency Medical personnel who arrived at the scene.

Shortly thereafter, Officer Visconte arrived at the scene. Officer Visconte testified that he took notice of the location of the vehicles that were involved in the accident and the damage to each of the vehicles. He noted that there was a Jeep facing south and there was a Volvo facing northwest. He testified that both vehicles had heavy front end damage. Officer Visconte noticed skid marks from one side of Sunrise Highway to the other side. Based on his observations of the vehicles and the skid marks, he concluded that the defendant's car was going too fast. Officer Visconte spoke with Officer Johnstone who told him that the defendant stated that he had taken 60 Xanax. Officer Visconte looked into the defendant's car, from eight feet away, and observed the defendant slumped over the steering wheel of the car. Officer Visconte believed that the defendant was unconscious. Officer Visconte testified that since the defendant was unconscious, [*3]no Standardized Field Sobriety Tests were conducted. Officer Visconte felt that the defendant suffered serious injuries as a result of the car accident. During the time that Officer Visconte was at the scene, the defendant never regained consciousness. Officer Visconte testified that he was not able to determine if the defendant was under the influence of either alcohol or drugs and he did not know if the defendant's unconscious condition was a result of the accident or caused by the ingestion of either alcohol or drugs. Nevertheless, at 3:00 p.m., Officer Visconte placed the defendant under arrest and charged him with Driving While Impaired by Drugs. Officer Visconte testified that the reason the defendant was arrested was based on the defendant's statement to Officer Johnstone that he had taken 60 Xanax. The defendant was then transported to the Nassau University Medical Center by helicopter. Officer Johnstone testified that after the defendant was airlifted from the scene, an individual pulled up in a car and inquired about the defendant's condition. The individual identified himself as a friend of the defendant and stated that the defendant had told him earlier that he was going to commit suicide. Officer Johnstone gave the individual his business card and told him that the defendant had already been transported to the hospital.

When Officer Visconte arrived at the hospital, he requested that the defendant submit to a chemical test of his blood. Officer Visconte read the defendant what he referred to as a "caveat." Officer Visconte was unable to explain the contents of the "caveat" that he read to the defendant. Officer Visconte stated that the defendant did not respond because the defendant was still unconscious. The defendant's blood was then drawn by the hospital staff at the direction of the Police. Officer Visconte did not know whether a doctor or nurse drew the defendant's blood. The defendant's blood was drawn at 4:05 p.m., while the defendant was still unconscious.

Officer Beal testified that at 11 p.m., he was directed by his supervisor to respond to the residence located at 76 Westwood Road, North Massapequa, Nassau County, New York. Officer Beal recalled being instructed to pick up personal property of the defendant at that location from the defendant's wife. When he arrived at the location, Officer Beal knocked on the door and was greeted by a woman who he presumed was the defendant's wife. Officer Beal was invited into the house by the woman, taken to the kitchen, and given a multiple page letter and 2 empty pill bottles. Officer Beal took the items and returned with them to the Precinct.

CONCLUSIONS OF LAW

STATEMENT BY THE DEFENDANT:

This Court finds that there was a sufficient basis for the initial Police interaction with the defendant. Officer Johnstone received a radio assignment to respond to a car accident. Upon arriving at the scene, Officer Johnstone observed two cars which appeared to have been involved in a car accident. Therefore, Officer Johnstone had a basis to speak with each of the individuals involved in the accident. Officer Johnstone's conversation with the defendant was justified based [*4]on his need to investigate the accident and determine if medical assistance was required. Officer Johnstone's questions to the defendant were investigatory in nature; i.e., whether the defendant was hurt, whether he had a medical problem, and whether he was taking any medication. The statement allegedly made by the defendant, that he took "60 Xanax," occurred during Officer Johnstone's initial interaction with the defendant. This Court finds that when the defendant made the statement to Officer Johnstone, he was not in custody, he was not under arrest and he was not being interrogated. Consequently, Miranda warnings were not required. In addition, the response by the defendant was voluntarily given. Therefore, the defendant's motion to suppress the statement is denied.

SEIZURE OF DEFENDANT'S LETTER AND EMPTY PILL BOTTLES:

It is undisputed that the letter and empty pill bottles were given to Officer Beal by the defendant's wife at their residence located at 76 Westwood Road, N. Massapequa, Nassau County, New York. The items were neither recovered from the defendant's person, nor were they recovered by a Police search of the defendant's house. Defense counsel argues that the defendant's wife did not have the authority to give the letter or empty pill bottles to the Police. Defense counsel further argues that the transfer of the empty pill bottles to the Police violated the defendant's Physician-Patient privilege with respect to the underlying medications. This Court finds that the receipt of the letter and the empty pill bottles by the Police was proper since it was at the invitation and consent of the defendant's wife. Since the defendant's wife voluntarily gave the property to the Police, it was not obtained as the result of an unlawful search or seizure by the Police. As to defense counsel's argument regarding the Physician-Patient privilege, said privilege is codified in CPLR §4504. It provides, in relevant part, that:

"Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity..."

It is obvious that the Physician-Patient privilege is inapplicable to the defendant's wife turning over his empty pill bottles to the Police. Consequently, the defendant's motion to suppress the letter and the empty pill bottles is denied.

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANT:

Officers Johnstone and Visconte testified that the accident occurred at 2:45 p.m. The defendant was arrested by Officer Visconte fifteen minutes later and charged with Driving While Impaired by Drugs. In order for the People to satisfy their burden of establishing that the Police had probable cause to arrest the defendant for Driving While Impaired by Drugs, the Officers needed to articulate the specific basis which they had to believe that the defendant had operated the vehicle while impaired by drugs. Generally, in Driving While Intoxicated and Driving While Impaired by Drugs cases, the evidence includes observations of an individual exhibiting signs and symptoms [*5]commonly associated with intoxication or impairment by drugs. Such testimony includes a complete description of the individual's physical condition, e.g., the condition of his/her eyes, manner of speech, cognitive ability, balance, behavior, demeanor, and whether there were any odors present. Such testimony also would include the manner in which the individual operated the motor vehicle.

In this case, the only testimony regarding the defendant's physical condition was that he was slumped over the steering wheel of his car, and was fading in and out of consciousness. Officer Johnstone interacted with the defendant for only a few seconds. He testified that the defendant was conscious briefly and stated that he was not hurt, did not have a medical condition, and took 60 Xanax. Officer Visconte never interacted with the defendant directly since the defendant was unconscious for the entire time that Officer Visconte observed him. Both Officers specifically testified that they could not determine if the defendant's unconscious condition was caused by the accident or by the ingestion of alcohol or drugs. Neither Officer detected any signs or symptoms commonly associated with intoxication or drug impairment. Officer Visconte testified that he believed that the defendant was suffering from a serious injury. As a result of the defendant's condition, no Standardized Field Sobriety Tests were requested of or performed by the defendant. Standardized Field Sobriety Tests are normally used by the Police to determine whether a person is either under the influence of alcohol or drugs. The absence of Standardized Field Sobriety Tests severely restricts the ability of the Police to assess the physical condition of the defendant. Other than the defendant's unconscious state, the testimony of both Police Officers was silent as to the defendant's physical condition. There was no testimony regarding any physical observations of the defendant's eyes, manner of speech, cognitive ability, balance, behavior, demeanor or presence of odors. There was no testimony as to the manner in which the defendant had operated the vehicle. In fact, there was no testimony that the defendant had even operated the vehicle.

The People argue that the accident itself could be indicative of intoxication or impairment by drugs. This Court agrees; however, it is also indicative of many other conditions and circumstances. There was no testimony that anything about the car accident itself demonstrated that it was due to either intoxication or impairment by drugs. No civilian witnesses were called to testify as to the cause of the accident or the manner in which the defendant allegedly operated the vehicle. The People similarly argue that the defendant's unconscious state itself is consistent with taking an excess amount of drugs. This Court agrees; however, it is equally consistent with a serious head injury caused solely by the car accident or by any other condition or circumstance. There was no testimony that the defendant's unconscious condition appeared to have been or could have been due to either intoxication or drug impairment. It has long been held that probable cause is more than mere suspicion. Equivocal behavior, or that which is susceptible of innocent as well as culpable behavior, will not constitute probable cause. There must be a "founded suspicion predicated on specific articulable facts that criminal activity is afoot," (See People v. DeBour, 40 NY2d 210, 386 NYS2d 375 [1976]). In this case, the People are left to rely exclusively on the testimony of Officer Visconte that he arrested the defendant because the defendant said that he had taken 60 Xanax. Although such a statement would heighten the Officers' suspicions, neither Officer testified as to any physical observations of the defendant which would either support or refute the defendant's statement. Based on the facts presented at the hearing, this Court finds that standing alone, the defendant's statement is insufficient to give the Police probable cause to arrest him. At the time the [*6]defendant was arrested, there was no factual basis to conclude that the defendant had operated the vehicle while impaired by either alcohol or drugs. The facts as testified to by the Officers may have been the basis for further investigation, including an application for a search warrant or Court order for a blood sample from the defendant, but did not rise to the level of probable cause to arrest the defendant at the scene. (See People v. Hoffman 135 AD2d 299, 525 NYS2d 376 [3rd Dept 1988]).

Since there was no basis to arrest the defendant at the scene, all evidence which was obtained from the defendant subsequent to his arrest must be suppressed as "fruits of the poisonous tree," (See Wong Sun v. United States, 371 US 471, 83 SCt 407, 9 LEd2d 441[1963] ). Hence, the blood sample, which the Police directed to be taken from the defendant after he was arrested for Driving While Impaired by Drugs, must be suppressed. Since the letter and empty pill bottles were independently obtained from the defendant's wife, defendant's motion to suppress same for lack of probable cause is denied.

This constitutes the opinion, decision, and order of the court.

Dated: November 30, 2009

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice Footnotes

Footnote 1: The written stipulation between the parties did not include a Mapp hearing regarding the seizure of the defendant's blood while he was unconscious in the hospital. In addition, there was no prior motion for a Mapp hearing regarding the seizure of the blood. Nevertheless, the People orally indicated at the commencement of the hearing that they would consent to conduct a limited Mapp hearing regarding the seizure of the defendant's blood. The People proposed to limit the Mapp hearing to whether the drawing of the defendant's blood was timely and whether there was implied consent to the drawing of the blood. Defense counsel rejected the People's proposal and responded that there should be a full Mapp hearing regarding the seizure of the defendant's blood. Since the Court did not previously order a Mapp hearing, and the parties did not reach a mutually agreeable stipulation regarding same, this Court will not expand the scope of the stipulated hearing to include a Mapp hearing regarding the seizure of the defendant's blood.