People v Burns

[*1] People v Burns 2006 NY Slip Op 51731(U) [13 Misc 3d 1208(A)] Decided on September 5, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2006
District Court of Nassau County, First District

The People of the State of New YorK, Plaintiff(s)

against

Kenneth J. Burns, Defendant(s)



NA 18328/05



Honorable Kathleen Rice, District Attorney

240 Old Country Road

Mineola, NY 11501

Benjamin Klemanowicz, P.C.

300 Old Country Road

Mineola, NY 11501

Susan T. Kluewer, J.

Decision After Hearing

Defendant's motion for an order suppressing statements he made to police, and suppressing the results of a chemical test of his blood, is granted only to the extent that the statement Defendant is alleged to have made at police headquarters after his arrest is, in accordance with the People' s waiver of use of that statement, suppressed.

Defendant is accused by simplified traffic information of driving while his ability to drive was impaired by the consumption of a drug (see Vehicle and Traffic Law §1192[4]). He is accused by long form information joined under this docket of unlawful possession of marijuana (see Penal Law § 221.05). The matter came on [*2]for a suppression hearing on July 10, 2006 pursuant to order (Gartner, J.) dated April 6, 2006. The parties agree that "probable cause" is not at issue at the hearing. Moreover, at the outset of the hearing, the People waived use, as part of their case in chief, of a statement Defendant made at police headquarters at 7:15 p.m. on the date of Defendant's arrest, i.e., August 31, 2005. One witness — Police Officer David Chiaro — took the stand at the hearing. He did so on the People's behalf.

Many of the facts that give context to the encounter between Officer Chiaro and Defendant were elicited on cross-examination. Overall, Officer Chiaro testified: that on the morning of August 31, 2005, he was on duty, participating in a random "check point" inspection of trucks traveling on Sunrise Highway; that an unidentified person stated to him that he had seen something being thrown from one of the trucks lined up and parked near the roadway as a result of the "check point;" that the unidentified person pointed to a particular truck; that he (Officer Chiaro) went over to the area near that truck and conducted a search; that he recovered a bag of a greenish brown substance that appeared to be marijuana; that he went to the truck which the unidentified person had designated, taking the bag with him; that he had a conversation with the driver — Defendant — and inquired whether the bag was his and whether he threw it out the window; and that Defendant responded with statement the People seek to introduce at trial, i.e., "Yes, the marijuana is mine. I threw it out the window. I bought it in Brooklyn and smoked it this morning." Officer Chiaro also testified that he made no threats or promises, and that he did not give Defendant Miranda warnings prior to making the inquiry.

Officer Chiaro additionally testified that, after the conversation, at approximately 10:10 a.m., he placed Defendant under arrest, whereupon Defendant was taken to police headquarters for processing, including administration of certain tests. Officer Chiaro further testified: that he asked Defendant to submit to a chemical test of his breath "around 12 o'clock," at which time he read Defendant the written authorization for conducting the test, an authorization that sets forth the consequences of refusing to consent; that Defendant signed the authorization; that he submitted to the test of his breath, which test revealed he had no alcohol in his system; that at about 12:20 p.m., he asked Defendant to submit to a chemical test of his blood; that he read Defendant virtually the same authorization he read earlier, i.e., an authorization which, again, sets forth the consequences of refusing to consent, including use of evidence of his refusal at trial and immediate suspension and subsequent revocation of his license; that Defendant consented to the test of his blood; that he manifested that consent by signing the authorization form and writing the word "consent;" that he was taken to Nassau University Medical Center for the test; and that Defendant' s blood was drawn at approximately 2:33 p.m. [*3]

Inasmuch as the People effectively waive use of the statement Defendant made at police headquarters, its use is suppressed (see CPL 710.60[2][b]), except to the extent that the People seek to use the statement for impeachment purposes, which exception remains subject to a claim that the statement was coerced. With respect to the statement the People do seek to introduce at trial, I am satisfied that this statement is the product of neither coercion nor improper promises (see e.g., People v. Witherspoon, 66 NY2d 973, 498 NYS2d 789 [1985]). I am also satisfied that this statement is not the product of custodial interrogation so as to require that Miranda warnings be given. Indeed, the evidence establishes that Defendant, along with many other truck drivers, was detained at the roadside, not because of suspected criminal activity, but for a random inspection (cf. see People v. Mathis,136 AD2d 746, 523 NYS2d 915 [2d Dept. 1988]). Even though Defendant may not have been free to leave, the police inquiry directed at him was investigatory (id.). Since a reasonable person innocent of any crime would not under the same circumstances have considered himself or herself to be in custody (see People v. Yukl, 25 NY2d 585, 307 NYS2d 857 [1969]), I decline to suppress the People's use of the statement Defendant made to police before his arrest.

Turning to that portion of Defendant's application which is directed at the results of the chemical test of his blood, he urges that since police did not request his consent, and since his blood was not actually drawn, within two hours of his arrest as required by Vehicle and Traffic Law § 1194, his consent and the ensuing test results are invalid. I disagree.

Every person who operates a motor vehicle in this state is deemed to have consented to a chemical test of his or her blood, breath, or urine, so long as the test is conducted by or at the direction of a police officer who has probable cause to believe that the person operated the motor vehicle in violation of the provisions of Vehicle and Traffic Law § 1192, and so long as the test is conducted within two hours of the arrest (see Vehicle and Traffic Law § 1194[2][a][1]). When a person arrested on probable cause for violating Vehicle and Traffic Law § 1192 refuses to submit to the test, his or her license shall be immediately suspended and subsequently revoked, and, unless a court order has been granted pursuant to Vehicle and Traffic Law § 1194(3), the test shall not be given. Moreover, evidence of a refusal to submit to the test is admissible at trial as evidence of a defendant's consciousness of guilt (see People v. Burtula, 192 Misc 2d 597, 747 NYS2d 692 [Nassau Dist Ct, 2002, Jaeger, J.]), provided the People demonstrate, usually at a pre-trial hearing (see e.g. People v. Davis, 8 Misc 3d 158, 797 NYS2d 258 [Sup Ct, Bronx County, 2005, Greenberg, J.]; People v. Burtula,, supra ), that the person persisted in refusing after he or she had been given sufficient warning of the effects of the refusal (see Vehicle and Traffic Law § 1194[2][f]). [*4]

As defense counsel notes, the Fourth Department did once rule that where a refusal is made after the two-hour window set forth in Vehicle and Traffic Law § 1194 has closed, that refusal is "incompetent" as evidence against the defendant (see People v. Brol, 81 AD2d 739, 438 NYS2d 424 [4th Dept. 1981]). Since it is obvious that any refusal will occur at the time actual consent would otherwise have been given, the Brol Court thus also ruled by implication that actual consent is also invalid if given more than two hours after the arrest (cf. People v. Ward, 176 Misc 2d 398, 673 NYS2d 297 [Sup Ct, Richmond County, 1998, Rooney, J.]; and see People v. Morales, 161 Misc 2d 128, 611 NYS2d 980 [Crim Ct, 1994, Kings County, Garnett, J.]; People v. Torres n.o.r, 2004 NY Slip Op 51201U [Crim Ct, 2004, Queens County, Knopf, J.]). The Second Department differed with the Brol court's tacit ruling, and held that the two-hour requirement applies only where no express consent is given (see People v. Mills, 124 AD2d 600, 507 NYS2d 743 [2d Dept. 1986]). And as defense counsel acknowledges, fourteen years after Brol was decided, the Court of Appeals adopted the Second Department view and ruled that where there is actual as opposed to implied, or "deemed" consent to a test, the two-hour limitation for conducting the test does not apply (see People v. Atkins, 85 NY2d 1007, 630 NYS2d 965 [1995]). Moreover, since Atkins, appellate courts have consistently ruled that the two-hour rule has no application where actual, uncoerced consent is given (see e.g., People v. Casimiro, 308 AD2d 456, 764 NYS2d 198 [2d Dept. 2003]; People v. Hoffman, 283 AD2d 928, 725 NYS2d 494 [4th Dept. 2001]; People v. Turner, 234 AD2d 704, 651 NYS2d 655 [3d Dept. 1996]; People v. Nemickas, n.o.r., 2004 NY Slip Op 51436U [AppTerm, 2d Dept. 2004]). Indeed, the two-hour rule has been narrowed to apply only in cases where the defendant is incapable of consent (see People v. Ward, supra ; People v. Morales, supra ; People v. Torres, supra ; cf. People v. Skardinski, 24 AD3d 1207, 807 NYS2d 232, 4th Dept. 2005]). Since Defendant expressly consented to the take test without a hint of coercion (see People v. Casimiro , supra ), and since the two-hour rule thus has no application to this case, there is no basis for suppression of the results of the test simply because he gave his consent more than two hours after his arrest (see People v. Morales, supra ; People v. Torres, supra ; cf. People v. Ward, supra ). To hold otherwise would be to ignore Atkins, Mills , and other, subsequent, binding appellate authority. To the extent that some trial courts have issued decisions that, by implication or dicta, stand for the proposition that a defendant must be advised of the consequences of his actual consent as well as the consequences of exercising his right to refuse if consent is sought more than two hours after his arrest (see e.g., People v. Morris, 8 Misc 3d 360, 793 NYS2d 754 [Crim Ct, Richmond County, 2005, Sciarrino, J.]; People v. Kenny (n.o.r., 2005 NY Slip Op 51395U [Crim Ct, Richmond County, 2005, Sciarrino, J.]), a requirement contained nowhere in the Vehicle and Traffic Law, I respectfully [*5]decline to follow them.

So Ordered.