People v Philip

[*1] People v Philip 2005 NY Slip Op 51628(U) [9 Misc 3d 1117(A)] Decided on October 11, 2005 District Court Of Nassau County, First District Kluewer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2005
District Court of Nassau County, First District

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff

against

JASON PHILIP, Defendant



21633/04



APPEARANCES:Honorable Denis Dillon, District Attorney

By: Michael Kasmarek, Esq., ADA

240 Old Country Road

Mineola, NY 11501

Brunetti, Ascione, Friedman & Lavallee, Esqs.

By: Robert J. Brunetti, Esq.

595 Stewart Avenue

Garden City, NY 11530

Susan T. Kluewer, J.

Defendant's motion to suppress all evidence as unlawfully seized, to suppress statements made to police as the products of threats, promises, or "un-Mirandized" custodial interrogation, and to suppress evidence of his refusal to submit to a chemical blood test on the ground that he did not persist in his refusal after being advised of the consequences, is granted only to the extent that the statement "Why don't you guys just beat the shit out of me and then drive my car into a brick wall - - fuck the both of you" is suppressed pursuant to CPL 710.60(2)(b).

Defendant stands accused, by long form information, of obstructing governmental administration in the second degree (see Penal Law § 195.05). He also stands accused, by separate simplified traffic informations joined under this docket, of driving while intoxicated, driving above a posted speed limit, failing to signal, and driving without illuminated headlights (see Vehicle and Traffic Law §§ 1192[3], 1180[d], 1163, 375[2][a]). At the outset of the action, the People served two "710.30" notices that reflect a total of four statements which, it appears, constitute only three statements. All are specified as having been made on October 16, 2004. The first "You don't have shit motherfucker; where is your proof, I had chocolate before you don't have nothin' " is specified as having been made at "4:05" at the scene of Defendant's arrest. The second "Why don't you guys just beat the shit out of me and then drive my car into a brick wall fuck the both of you" is specified as having been made at "4:15," also at the scene of the arrest. The third and fourth statements are specified as having been made at "6:02" at Central Testing in Mineola and both are to the effect that "I'm not taking any test and I'm not signing anything for you because you have no proof."

By order dated May 2, 2005, I granted Defendant's motion to suppress evidence to the extent of putting down for a combined pre-trial hearing the issues of whether there was an unlawful stop of defendant's car, whether there was an invalid arrest, whether statements Defendant made to police should be suppressed on account of improper threats or promises or a failure to observe the requirements of Miranda v. Arizona (384 US 436, 444 [1966]), whether Defendant was properly advised of the consequences of a refusal to submit to a chemical test of his breath or blood, and whether he nonetheless persisted in that refusal. That hearing took place on September 2, 2005. Following the testimony of what turned out to be the only witness to testify Police Officer Eric Reinhold Defendant conceded that the stop of his car, and his arrest, were lawful. For their part, the People waived use of the second statement, which Defendant apparently made at "4:15" at the scene of his arrest. The People's use of that statement as part of their case in chief is thus suppressed (see CPL [*2]710.60[2][b]). As set forth below, the remaining issues, including a Rosario issue that arose during the hearing, are resolved against Defendant.

Officer Reinhold testified that, on October 16, 2004 at 3:30 a.m., he was in uniform in a marked police car on radio motor patrol with his partner when he received an assignment to respond to a specified location for a "bar disturbance." He further testified about the facts leading to their coming upon a white Toyota Matrix, identified to them as the car in which those involved in the "bar disturbance" left the scene, which car they saw move away from a curb from a standing position without its headlights on. And he testified that he and his partner, in their patrol car, paced the Toyota at 45 miles per hour in a 30-miles-per-hour zone; that they observed the Toyota make a right turn without any signal; that he and his partner "effected a VTL stop;" that he approached the driver's side of the car, occupied by a person he identified at the hearing as Defendant; that there were two passengers in the car; that Defendant had a facial injury and blood on his shirt; and that he asked Defendant to step out of the car, apparently because Defendant refused to produce his license.

Officer Reinhold next testified about Defendant's condition as Defendant got out of the car, and about Defendant's performance on the standard field sobriety tests, which Defendant failed. Although Officer Reinhold's testimony was somewhat sketchy, he next testified that "there came a time" when Defendant submitted to a portable breath test, which I find occurred after administration of the standard field sobriety tests. And Officer Reinhold testified that, during the standard field sobriety tests, a "third person" I infer an acquaintance of Defendant's whom police asked to "wait by his car" drove up in a Mercedes. Officer Reinhold further testified that it was also during administration of the standard field sobriety tests that Defendant made the statement "You don't have shit, mother fucker. Where's your proof? I had chocolate before." Officer Reinhold next testified that Defendant was not in handcuffs at the time he made the statement; that no guns were drawn; that neither he nor his partner made any threats or offers of leniency; and that there "came a time" when he placed Defendant under arrest, which time, on cross-examination, he fixed at 4:30 a.m.

After testifying about further incidents at the scene of the arrest, including Defendant's obstructive conduct, Officer Reinhold testified that, at Central Testing, he asked Defendant to submit to a chemical test of his blood rather than his breath because of the injuries to his face. He also testified that, before he asked Defendant to submit to the test, he read Defendant a warning about what the test was for, how the results could be used, that he could refuse to submit but that the refusal will result in the immediate suspension or subsequent revocation of his license whether or not he is found guilty of the charge for which he was arrested, that the refusal can be introduced into evidence against him at any trial, and that he could notify a physician of his choice to administer the test "you are [*3]now being requested to submit to." Following the advisement and warning, he asked Defendant "[w]ill you submit to a blood test?" Officer Reinhold testified that Defendant responded by stating "I'm not taking any test. I'm not signing anything. Where's your proof?" Officer Reinhold, who acknowledged that he asked Defendant if he would submit to the test only once, further testified that, at that time, neither he nor his partner was in possession of a gun, and that no threats or promises were made to Defendant prior to his making this statement of refusal. Defendant's refusal to acknowledge in writing his refusal to take the test is noted on the portion of the "ALCOHOL/DRUG REPORT FORM" admitted into evidence at the hearing.

On cross-examination, Officer Reinhold testified that he had earlier conversations with the Assistant District Attorney, Mr. Kasmarek, conducting the hearing. Defense counsel, Mr. Brunetti, then elicited the following:

"Q: Did you meet with [Mr. Kasmarek] in his office?

A: Yes.

Q: Did you go over the questions that he read off his sheet?

A: Yes.

Q: Computer generated sheet?

A: I didn't look at it.

Q: Did you take any notes - - take a couple of notes?

A: No.

Q: Did you at any time see notes - -

A: Did I take - -

Q: Did you see him take any notes?

A: No.

Q: Absolutely not?

A: Did I take notes? [*4]

Q: No. Did you see him make any notes on his computer [generated sheet]?

A: Yes."

There was no further questioning on the subject of the notes.

After a lunch break, the People determined not to call a second witness and, as noted above, they waived their right to use as part of their case-in-chief the statement designated as made at "4:15." The evidence was then closed, at which time, also as noted above, Defendant conceded that both the stop of his car and his arrest were properly grounded. Mr. Brunetti then requested the production of any Rosario material not theretofore produced, making specific mention of Mr. Kasmarek's notes, which he asserts Officer Reinhold testified he saw him take during preparation for the hearing. Mr. Kasmarek objected, stating that he had merely reviewed a list of questions with his witnesses and that, on that list, inferentially in front of the witness, he "made marks underlining certain words," whereupon Mr. Brunetti was permitted without objection to look briefly at the document. Following colloquy, during which Mr. Brunetti contended that there were words, beyond any underlining, hand-written on the document he had just viewed, Mr. Kasmarek reiterated that he underlined certain questions that "I wanted to focus my own attention on when I was interviewing [the witnesses]. I did not record anything they told me. The statements that [Mr. Brunetti] has seen on this page I recorded while he was cross-examining [the witness]." I preliminarily ruled that those handwritten notes were attorney work product and not Rosario material, but agreed to read People v. Consolazio (40 NY2d 446, 387 NYS2d 62 [1976]), which Mr. Brunetti argued required that I review the document in camera or at least have it marked as an exhibit for appellate review.

In my view, People v. Consolazio (supra) does not require disclosure of the document to Defendant, does not require my in camera inspection of it, and indeed, does not requires its marking as an exhibit for appellate review. It is true that the Consolazio Court ruled it error for a trial court not to determine for itself by in camera inspection whether worksheets prepared by a prosecutor as he interviewed a witness, which worksheets included notes about the substance of the interview contained Brady material. It is also true that the Consolazio Court ruled that those particular notes were not "work product" and were, instead, Rosario material, but it did so because the notes concerned the substance of the conversation. In this case, the underlinings, although made in front of the witness, are Mr. Kasmarek' s signals to himself about what questions or parts of questions would, in his professional judgment, be important at the hearing, and are, indeed, his "work product" (see Doe v. Poe, 244 AD2d 450, 644 NYS2d 120 [2d Dept. 1997]). Insofar as the handwritten words on that document are concerned, the threshold issue before me does not involve any evaluation of the [*5]usefulness to Defendant of those words. Nor does it involve evaluation of any other similar quality determinable by examination of the document (see People v. Poole, 48 NY2d 144, 422 NYS2d 5 [1979]; People v. Consolazio, supra). It instead involves the factual issue of how those words came to be on the document. That issue is determinable only by examining Mr. Kasmarek 's statements, which statements I have no reason to doubt. Absent that doubt, I am entitled to, and do, rely on those statements (see People v. Poole, supra). And since notes by an attorney while his witness is being cross-examined do not constitute Rosario material (see People v. Rosario, 9 NY2d 286, 213 NYS2d 448 [1961]), I adhere to the determination I made at the hearing.

Turning to the suppression issues before me, I am satisfied beyond a reasonable doubt that the statement "You don't have shit, mother fucker. Where's your proof? I had chocolate before" is the product of neither coercion nor improper promises (see e.g., People v. Witherspoon, 66 NY2d 973, 498 NYS2d 789 [1985]). And although, because the crucial facts elicited by the People are sparsely presented, I remain uninformed about whether the Defendant made this statement spontaneously or in response to police inquiry, since the evidence establishes that he made it before completion of the standard field sobriety tests, since it also establishes he made it at or about the time his acquaintance, who was permitted to "wait," approached in the Mercedes, since the statement preceded the administration of the portable breath test, since it also preceded a second statement apparently made some 10 minutes later, and since it further preceded Defendant's formal arrest, apparently by some 25 minutes, I find that Defendant made the statement during the investigatory stage of the encounter. Police were thus not obligated to advise Defendant of, among other things, the right to remain silent, even if it was police questioning that prompted Defendant to speak (see People v. Baker, 188 AD2d 1012, 592 NYS2d 161 [4 th Dept. 1992]; People v. Mathis, 136 AD2d 746, 523 NYS2d 915 [2d Dept. 1988]). I therefore decline to suppress this statement.

I also decline to suppress the statement and I find there was only one such statement to the effect that "I'm not taking any test and I'm not signing anything for you because you have no proof." I am again satisfied beyond a reasonable doubt that this statement is the product of neither coercion nor improper promises. And although it is obvious that Defendant was in custody when he made this statement, it is equally obvious that this is a statement evidencing his refusal to submit to a chemical test of his blood. The procedures enunciated in Miranda v. Arizona (384 US 436, 444 [1966]) have no application to the testing procedures and refusals to submit to them set forth in Vehicle and Traffic Law § 1194 (cf. Vehicle and Traffic Law § 1194[2][f]; see also People v. Thomas, 46 NY2d 100, 412 NYS2d 845 [1978]; People v. Peeso, 266 AD2d 716, 699 NYS2d 136 [3d Dept. 1999]; cf. People v. Berg, 92 NY2d 701, 685 NYS2d [*6]906 [1999]). Therefore, the failure to request that Defendant submit to the test without also advising him of, e.g., his right to remain silent does not require the statement's suppression (id.).

To the extent that Defendant seeks suppression of this statement, and any other evidence of his refusal to submit to the test, on the ground that he was not adequately advised of the consequences, the application is without merit. The records establishes that Officer Reinhold gave Defendant sufficient warning, in clear and unequivocal language, of the effect of the refusal (see Vehicle and Traffic Law § 1194[2][f]; see also Carrieri, Practice Commentaries to Vehicle and Traffic Law §1194). Finally, to the extent that Defendant seeks suppression of this statement and other refusal evidence on the ground that Officer Reinhold asked him to take the test, and he refused to do so, only once, and that he thus did not "persist" in the refusal (see Vehicle and Traffic Law § 1194[2][f]), apart from the fact that the evidence establishes that Defendant both stated his refusal, and refused to put his refusal in writing, I agree with the growing line of cases holding that the statutory requirement that admissibility of refusal evidence must be based on a showing that a defendant "persisted in that refusal" is not a quantitative one (see e.g. People v. Davis, 8 Misc 3d 158, 797 NYS2d 258 [Sup Ct, Bronx County, March 17, 2005, Greenberg, J.]; People v. Andrews, n.o.r. 2002 NY Slip Op 50394[U] [Nassau Dist Ct, 2002, Miller, J.]; People v. Coludro, 166 Misc 2d 662, 634 NYS2d 934 [Crim Ct, Kings County, 1995, Ruchelsman, J.]; and see Geary v. Commissioner, 92 AD2d 38, 459 NYS2d [4th Dept. 1983 aff'd 59 NY2d 950, 466 NYS2d 304 [1983]). What is required is that the refusal be knowing, intentional, and unequivocal (id.). In other words, to "persist" the first definition of which is to "go on resolutely or stubbornly in spite of opposition, importunity, or warning" (see Webster's New Collegiate Dictionary, 1973) as used in the statute refers to the quality and timing of the refusal, not the number of times one is asked to express it. Defendant here made the requisite refusal after he was properly warned of the consequences (cf. People v. Thomas, supra; see also People v. Davis, supra). His application to suppress refusal evidence is accordingly denied.

This constitutes the decision and order of the court.

So ordered.