People v Kearney
Annotate this CaseDecided on May 25, 2016
District Court of Suffolk County, First District
People of the State of New York,
against
John Kearney, Defendant.
2014SU005667
For the Defendant: Steven M. Politi
Central Islip, NY
For the People:ADA Katharine D'Aquila
for Thomas J. Spota, District Attorney of the County of Suffolk
Karen M. Wilutis, J.
The defendant herein is charged with driving while intoxicated (VTL §1192 (3)) and a traffic infraction. Mapp/Dunaway/probable cause, Huntley and refusal hearings were held to determine the admissibility at trial of evidence obtained against the defendant.
The People presented the testimony of Suffolk County Police Officer Arthur Puzelli. Officer Puzelli testified that on February 15, 2014 he was working an 8 pm to 4 am tour, engaged in DWI enforcement in a low-profile police vehicle, alone and in uniform in the Patchogue, New York area. At approximately 12:50 am he was proceeding eastbound on Montauk Highway just past Route 112 when he observed a vehicle approximately 300 feet in front of him traveling at a high rate of speed with no lights on. Officer Puzelli estimated the vehicle's speed to be 60 mph in a 30 mph zone. The officer testified that he sped up to the vehicle and activated his lights, whereupon the vehicle pulled over to the side of the road, stopping approximately four feet from the curb.
Officer Puzelli further testified that he approached the vehicle and obtained the driver's license. The driver was identified as defendant John Kearney. The officer testified that he smelled a strong odor of an alcoholic beverage coming from the vehicle and that the defendant had bloodshot, glassy eyes and slurred speech. The defendant was asked to exit the vehicle and, when he did so, he almost fell in the roadway and Officer Puzelli testified that he had to grab the defendant so that he wouldn't fall. The defendant was observed to be very unsteady on his feet and "had to be attended the whole time" to prevent a fall. When asked if he had been drinking, the defendant stated that he had not been drinking and repeated a couple of times that "he was fine." Officer Puzelli walked the defendant to the back of his vehicle while holding his arm to prevent a fall and asked him to perform standardized field sobriety tests. The defendant was given the Horizontal Gaze Nystagmus [hereinafter "HGN"]test while he was leaning on the back of his vehicle because he could not stand on his own. The defendant exhibited all six clues on the HGN. Officer Puzelli testified that he did not have the defendant perform the walk-and-turn or one-leg-stand tests because the officer felt that it would have been unsafe for the defendant to do so. A pre-screen breath test was positive for the presence of alcohol. The defendant was placed under arrest at 1:10 am and transported to the Fifth Precinct for processing.
At the precinct Officer Puzelli read the chemical test warnings to the defendant from the Alcohol/Drug Influence Report and the defendant initialed the form. The defendant was asked whether he would submit to a chemical test of his breath and he wrote the word "refuse", circled "refuse" and signed the form at 1:50 am. The officer testified that the defendant also refused at 2:05 am and 2:25 am and stated, "I can't take the test" each time he was asked. The defendant was then read his Miranda rights and stated that he understood them, but made no further statements.
The Court holds that the stop of the defendant's vehicle was lawful, as Officer Puzelli had probable cause to believe that the defendant had committed violations of the Vehicle & Traffic Law when he observed the defendant operating a vehicle at an excessive speed without lights. (See People v. Robinson, 97 NY2d 341; People v. Ingle, 36 NY2d 413).
In order for a police officer to effectuate an arrest for an offense without a warrant, the officer must have reasonable cause to believe that a person has committed an offense in his presence. Reasonable cause means probable cause. As a result of the hearings held herein, this Court finds that Officer Puzelli's observations of the defendant's physical condition, the odor of alcohol, the manner of operation of the defendant's vehicle, multiple clues of intoxication on the HGN test, the defendant's inability to perform other field sobriety tests and the positive pre-screen breath test gave the officer probable cause to arrest the defendant for driving while intoxicated. Accordingly, the branches of the defendant's motion seeking suppression premised upon an alleged lack of probable cause are hereby denied. (People v. Kowalski, 291 AD2d 669 [3rd Dept 2002]; People v. Lamb, 235 AD2d 829, 830-831 [3d Dept 1997]; People v. Kalwiss, 6 Misc 3rd 129 (A), 2005 NY Slip Op 50057 (U) [App Term 2nd Dept, 9th and 10th Jud Dists 2005]; People v. McClaney, 135 AD2d 901 [3rd Dept 1987]; CPL 140.10).
The defendant's request for suppression of his statement(s) at the scene is denied. A defendant temporarily detained at a roadside investigation, including a suspected DWI offense, is not considered to be in custody and the limited questioning appropriate to such an investigation and the administration of performance tests do not require Miranda warnings. (People v. Mackenzie, 9 Misc 3rd 129 (A), 2005 NY Slip Op 51535(U) [App Term 2nd Dept, 9th and 10th Jud Dists 2005], lv app den 5 NY3d 807 [2005]). The Court finds that the alleged statements were elicited by a question which was merely investigatory, that the statements were not the product of custodial interrogation, and as such, were not subject to suppression.
The defendant's motion to suppress the statement "I can't take the test" made at the precinct is also denied. The statement in question was made by the defendant in response to Officer Puzelli's request of the defendant to take a chemical test. The fact that the defendant spontaneously elaborated on his refusal does not render such statement inadmissible. Furthermore, although the defendant was clearly in custody at that time, it has been held that "both the elements of police custody' and police interrogation' must be present before law
enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda." (People v. Huffman, 41 NY2d 29 [1976] [emphasis added]). The officer's request to take the chemical test did not constitute interrogation and did not require Miranda warnings.
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 2 hours of the defendant's arrest or within 2 hours of a breath test (VTL 1194 (2)(a); People v. Brol, 81 AD2d 729 [4th Dept 1981]), provided that the defendant was given sufficient warnings in unequivocal language of the effect of such refusal and if the defendant persisted in the refusal. (VTL 1194 (2)(f); see also People v. Thomas, 46 NY2d 100, 108 [1978], app dsmd 444 US 891 (1979)). It is the opinion of this Court, based on the credible testimony of Officer Puzelli, that the chemical test warnings were given to the defendant in clear and unequivocal language. There was never any expression of a lack of understanding or a request that the officer clarify or repeat the warnings. The Court finds that there was substantial compliance with V & TL §1194. (See Matter of Zambroski v. Tofany, 40 AD2d 885 [1972]). The defendant indicated that he understood the warnings by initialing and signing the form and both circled and wrote "refuse" thereon. The Court finds that the defendant did in fact persist in his refusal and that evidence of the refusal is therefore admissible.
Finally, the Court must address an evidentiary issue that developed during the course of these hearings. During cross-examination, Officer Puzelli was asked if there was a video of the defendant's arrest processing, to which he replied, "Oh, yeah, there's always a video in there." The People represented on the record at the hearing that they were unaware of the existence of any video. In response, the defendant requested that the hearing be left open pending disclosure of a video, if same was found to exist. On the next hearing date, the People produced Suffolk County Police Sergeant William Okula to testify solely with regard to the issue of video recording capability at the Fifth Precinct. Sergeant Okula, the executive officer of the Police [*2]Technology Bureau, testified that he was in charge of telephone, telecommunications and infrastructure security for the Suffolk County Police Department and that part of his duties encompassed the video cameras at the Fifth Precinct. He further testified that he was familiar with the video cameras at the Fifth Precinct on February 15, 2014, that none of the cameras recorded video or had the ability to pick up audio, but they only provided live feeds for purposes of observing prisoners and for officer safety. Sergeant Okula further testified that it would be his responsibility to maintain and upgrade any recording devices and that there were no recording devices at the Fifth Precinct. Sergeant Okula also testified that, if a new camera were installed at the Fifth Precinct with the ability to record, he would know that because his approval would be required and that no such approval was given. This Court finds that Sergeant Okula possessed the requisite personal knowledge on the issue and that his testimony was credible. As such, the People have met their burden of demonstrating that there are no video recordings of events at the Fifth Precinct on the date in question.
Accordingly, after hearing and evaluating all of the testimony presented herein, this Court finds that probable cause existed for the stop and arrest and the defendant's motion to suppress evidence obtained as a result of same is denied. The defendant's motions to suppress his statements and evidence of his refusal to submit to a chemical test are also denied.
New Court Date:
Dated:May 25, 2016
J. D. C.
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