People v Bang

[*1] People v Bang 2017 NY Slip Op 50458(U) Decided on April 10, 2017 Criminal Court Of The City Of New York, Queens County Drysdale, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2017
Criminal Court of the City of New York, Queens County

The People of the State of New York,

against

Eric Bang, Defendant.



2016QN051525



For the People: Queens County District Attorney's Office by ADA Nicole Rella, Esq. For the defendant: Queens Law Associates by Emily Lurie, Esq.
Althea E. Drysdale, J.

The defendant, Eric Bang, is charged with driving while intoxicated per se (VTL § 1192 [2]), and driving while intoxicated (VTL § 1192 [3]).

On March 1, 2017, a Dunaway/Mapp/Huntley/Johnson hearing was held before this court. Police Officer Sean Barnwell testified for the People. Based on his credible testimony, the court makes the following findings of fact and law.

Findings of Fact

Police Officer Sean Barnwell has been a member of the New York City Police Department for two years. He is now stationed with the 112th Precinct. In those two years, Officer Barnwell has made about 20 arrests.

On November 24, 2016, Officer Barnwell was working from 8:00pm until 4:30am. He was in a marked patrol vehicle, and in uniform. His partner was Sergeant Yuan. His assignment for the evening was a vehicle checkpoint at Grand Central Parkway and 67th Road in Queens County. Sergeant Yuan had articulated the checkpoint as a safety checkpoint, as well as a checkpoint for suspicious activities — intoxicated drivers. There were two marked patrol vehicles, with red flares and cones marking the area. There was a single lane of traffic, approximately 100 feet from the exit ramp, traveling eastbound. The specific area for the [*2]checkpoint was chosen because it had a high flow of traffic, and the day was chosen because Thanksgiving was a day usually associated with intoxicated drivers. Further, it was articulated that every vehicle would be stopped and Officer Barnwell would ask the vehicle's driver for their driver's license, and vehicle documents.

Between the hours of 1:30am and 1:40am, Officer Barnwell stopped a black Lexus driven by the defendant, Eric Bang. The vehicle's driver side window was rolled down. Officer Barnwell asked the defendant for his driver's license and vehicle documents. There, Officer Barnwell observed that the defendant had bloodshot watery eyes, and an odor of alcohol coming from the defendant's direction. Officer Barnwell asked the defendant if he had been drinking, to which the defendant replied that he had drank at his house. Officer Barnwell then asked the defendant to pull his vehicle over to the side of the road and asked the defendant if he would take a portable breath test. The defendant consented. The result of the portable breath test was that the defendant had a blood alcohol content reading of .11%. Officer Barnwell, based on these observations, believed that the defendant was intoxicated. The defendant was placed under arrest and transported to the 112th Precinct's IDTU room for further testing.

At the 112th Precinct's IDTU room, Officer Barnwell was in the testing room and observed the entirety of the testing. Officer Barnwell observed that the IDTU technician, Police Officer Stahl of Highway Unit 3, offered the defendant an Intoxilyzer examination. The defendant consented to the test, and the result of the test was that the defendant had a blood alcohol content of .088%. The defendant also consented to take the coordination test. After testing, Officer Barnwell administered Miranda rights to the defendant as follows:

"Officer Barnwell: you have the right to remain silent, do you understand?

The Defendant: am I being arrested, sir?

Officer Barnwell: what is that supposed to mean?

Officer Stahl: you are under arrest at this time, yes.

Officer Barnwell: you have the right to remain silent, do you understand?

The Defendant: can I ask you what's the reason for being arrested?

Officer Stahl: sir, at this time just answer his questions, and then I'll answer yours [*3]when we're done. Answer his question.

Officer Barnwell: you have the right to remain silent, you have the right to refuse to answer any questions, do you understand?

Officer Barnwell: you have to say an answer.

Officer Stahl: into the camera, yes or no to what he's asking you.

The Defendant: yes.

Officer Barnwell: anything you say may be used against you in a court of law, do you understand?

The Defendant: yes . . . may I ask why I'm being arrested?

Officer Barnwell: you have the right to consult an attorney before speaking, and you have the right to an attorney present during questioning now or in the future, do you understand?

The Defendant: can I . . . sure, can I have an attorney present now?

Officer Stahl: no.

Officer Barnwell: if you cannot afford an attorney, one will be provided for you, do you understand?

The Defendant: sure, can I have an attorney prov . . . provided now?

Officer Stahl: no.

Officer Barnwell: if you do not have an attorney available, you have the right to remain silent until you've had the opportunity to consult with one, do you understand?

The Defendant: yes?

Officer Barnwell: now that I have advised you of your rights, are you willing to [*4]answer any questions?

The Defendant: I'd like to have an attorney provided to me.

Officer Stahl: sir, are you willing to answer any questions, yes or no? Look into the camera, answer yes or no, it's your choice. Right now, as it stands, are you willing to answer questions, yes or no?

The Defendant: of course.

Officer Stahl: yes or no, into the camera.

The Defendant: yes."

Thereafter, while being asked questions from the IDTU Intoxicated Driver's Form, the defendant asked "I have a question for you. Am I allowed to have an attorney present while I'm answering these questions?" Officer Stahl responded "sir, not at this time. As we explained to you earlier, if you don't have a way to contact the attorney, you will have to contact him later. We have no way to contact your attorney at this time. And, you have to answer the questions as they stand, and that will conclude this test." The questioning continued, and eventually, the testing and questioning were completed.

Findings of Law

Contrary to the defendant's argument, Officer Barnwell acted appropriately when he stopped the defendant's vehicle at the safety checkpoint. The defendant argues that: (1) Officer Barnwell's testimony did not establish that the checkpoint was conducted in a" non-discriminatory manner under rigid protocols designed to limit officer discretion," and (2) the People failed to prove the primary purpose of the checkpoint. In addition, the defendant relies on In re Muhammad F., 94 NY2d 136 (1999) for the proposition that the People must show that there were written guidelines for officers to follow. The court disagrees.

In Muhammad F., the issue before the Court of Appeals was whether the roving-patrol stops of random taxi or livery cabs was sufficiently non-discretionary. There, the Court found that without written procedures delineating what procedures officers in an unmarked vehicle relied on to make vehicle stops of taxi or livery cabs, such suspicionless stops were unconstitutional (id.). As the Court noted in Muhammad F., "the [United States] Supreme Court has not adopted a per se rule banning all [roving-patrol] stops and requiring a fixed checkpoint or roadblock in all cases. Suspicionless patrol stops are suspect as a general matter [*5]because of both their elevated potential for intrusiveness and their greater opportunities for unlimited exercise of discretion by police; no such stop has been upheld by the [United States] Supreme Court or our Court when it is conducted at random" (id. at 145-46). But, on the other hand, suspicionless stops of all oncoming traffic at roadblock-type stops to check driver licenses and vehicle registrations are permissible (id. at 146)

Here, Officer Barnwell's testimony established the non-discretionary nature of the roadblock. Specifically, Officer Barnwell testified that he, and others, were ordered by Sergeant Yuan to set up a roadblock by using two marked patrol vehicles, with red flares and cones creating a single lane of traffic, approximately 100 feet from the exit ramp, traveling eastbound. And, that the officers were to stop every vehicle and ask for the vehicle's driver for their driver's license, and vehicle registration. Subjective intrusion is significantly reduced when the police employ a uniformed system of stopping cars (id. at 147; see also People v Scott, 62 NY2d 518, 527 [1984]).

Thus, Officer Barnwell legally stopped the defendant's vehicle at the roadblock, which placed him in the position to observe the defendant with bloodshot watery eyes, and the odor of alcohol. With this observation in mind, Officer Barnwell asked the defendant if he had been drinking and the defendant replied that he had drank at home. Based on this information, Officer Barnwell had probable cause to arrest the defendant for driving while intoxicated (see People v Vargas, 123 AD3d 1149 [2d Dept 2014] [defendant's appearance combined with the smell of alcohol emanating from him gave the officer probable cause to arrest for driving while intoxicated]; People v Tieman, 112 AD3d 975 [2d Dept 2013] [glassy eyes combined with odor of alcohol emanating from defendant's breath gave the police probable cause to arrest the defendant for violating Vehicle and Traffic Law § 1192]). And, based on the circumstances, Officer Barnwell had probable cause to administer a breath test (see People v Joseph, 23 Misc 3d 130 [A] [App Term, 2d Dept 2009]).

With regards to the defendant's statement at the roadblock that he had drank at home, the defendant's motion to suppress this statement is denied as it was investigatory questioning and not custodial interrogation (see People v Tieman, 132 AD3d 703, 703-4 [2d Dept 2015], and People v Henriquez, 39 Misc 3d 134 [A] [App Term, 1st Dept 2010]). But, as to defendant's statements made in response to the IDTU questionnaire, any statements made after the defendant was advised of his Miranda rights are suppressed.

The video evidence shows that the defendant unequivocally requested the assistance of counsel. A cornerstone of our legal system is the right to counsel. [*6]When a suspect in custody unequivocally requests the assistance of counsel, all questioning must stop (see People v Harris, 93 AD3d 58, 66 [2d Dept 2012]). The indelible right to counsel automatically attaches when a defendant, in custody, unequivocally invokes his right to counsel (id.). Thus, a defendant cannot waive his right to counsel, or his Miranda rights, unless the defendant's attorney is present (id.).

Here, having reviewed the contents of the video recording, the court finds that the defendant unequivocally requested counsel, to which his request was inexplicably ignored. Specifically, when asked if he understood he had the right to consult an attorney, the defendant asked for an attorney, where he was promptly told no by the IDTU technician, Officer Stahl. When, the defendant was asked if he understood that an attorney would be provided for him if he could not afford one, he asked, again, if an attorney could be provided, to which Officer Stahl, again, said no. And, if this was not egregious enough, in the midst of being asked questions on the IDTU questionnaire, the defendant inquired as to whether he was allowed to have an attorney present while answering questions from the IDTU questionnaire, Officer Stahl answered ". . . if you don't have a way to contact the attorney, you will have to contact him later. We have no way to contact your attorney at this time. And, you have to answer the questions as they stand, and that will conclude this test." Our laws mandate that when a defendant asks to contact an attorney, the police "may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication . . ." (People v Smith, 18 NY3d 544, 549 [2012], quoting Gursey, 22 NY2d 224, 227 [1968]).

Accordingly, the defendant's motion to suppress is denied, except for all statements made in response to the IDTU questionnaire at the 112th Precinct.

The foregoing constitutes the decision and order of the Court.

Dated: April 10, 2017

Queens, New York

Althea E. Drysdale, J.C.C.