People v Rawley

[*1] People v Rawley 2007 NY Slip Op 51237(U) [16 Misc 3d 1103(A)] Decided on June 18, 2007 Supreme Court, Bronx County Fabrizio, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 28, 2007; it will not be published in the printed Official Reports.

Decided on June 18, 2007
Supreme Court, Bronx County

The People of the State of New York

against

Charlie E. Rawley, Defendant.



525C-2006



APPEARANCES:

For Defendant:

Jeffrey Rizzo

The Legal Aid Society

1020 Grand Concourse

Bronx, New York 10451

For the People:

Peter Kennedy

Office of the District Attorney

Bronx County

198 East 161st Street

Bronx, New York 10451

Ralph A. Fabrizio, J.

The issues in this case involve whether evidence of a defendant's refusal to provide a blood sample for testing to determine his blood alcohol level, as well as a statement he made, are admissible where the defendant, who was seriously injured in a car accident, was asked to provide the blood sample to a police officer while in the emergency room of a hospital, and the statement was made to a physician in the emergency room and was overheard by another police officer. Defendant Charlie E. Rawley is charged with Operating a Motor Vehicle While Under the Influence of Alcohol, pursuant to VTL § 1192(3). Beginning June 4, 2007, the court conducted a combined Huntley/Dunaway/Johnson hearing, as well as an in limine hearing to determine whether the defendant's refusal to provide a blood sample would be admissible. The People called three witnesses, Police Officer Julio Gonzalez, Police Officer Richie Gonzalez, and Police Officer Harrington Marshall. Their testimony is credited to the extent summarized in the court's findings of fact. The motion to suppress the defendant's refusal to provide a blood sample and his statement is denied. Moreover, the refusal is admissible at trial as it was obtained in compliance with VTL § 1194.

FINDINGS OF FACT

On December 26, 2005, shortly after 4:30 p.m., Police Officer Richie Gonzalez, and his partner, Police Officer Julio Gonzalez, responded to the scene of a car accident at West Farms Road in the vicinity of East 173rd Street. West Farms Road is a narrow, two-lane, two-way street at that point. A Jeep motor vehicle was lying on its side, with the driver's side door on the ground, on the sidewalk next to the southbound lane when the officers arrived. The driver and occupant of that vehicle were standing outside it, and appeared very shaken up. Officer Richie Gonzalez saw the defendant behind the steering wheel of his car, a Pontiac, that was in the middle of the road and extremely damaged. Police officers from the Emergency Services Unit were using the "jaws of life" to free the defendant from his car. When the defendant was removed, he was placed in an ambulance and Officer Julio Gonzalez got into the ambulance with the defendant. From a distance of about five feet, the officer was able to detect a "stench" of alcohol coming from the defendant. Officer Julio Gonzalez asked the defendant "what happened?" The defendant's responses were basically incoherent he had slurred speech, and [*2]was moaning. To officer Richie Gonzalez, who was nearby, the defendant appeared to be going in and out of consciousness.

Officer Julio Gonzalez rode with the defendant in the ambulance, and they soon arrived at St. Barnabas Hospital. The defendant was not handcuffed or restrained in any way. When they arrived at the hospital, the defendant was taken immediately to the emergency room. He was conscious when he arrived at the hospital. The officer stood by in the Emergency Room as a doctor spoke with the defendant. At one point, after the doctor asked the defendant a question, the defendant responded "I'm drunk. Call my wife," in a tone loud enough to be heard by officer Julio Gonzalez. The time was approximately 5:15 p.m. Officer Julio Gonzalez did not place the defendant in handcuffs at that point, or interfere in any way with his medical treatment. Meanwhile, Officer Richie Gonzalez had arrived at the hospital, accompanied by the driver of the other vehicle, Antonio Serrano. Officer Richie Gonzalez and Officer Julio Gonzalez spoke about the defendant and Serrano in the hospital. At 5:48 p.m., Officer Julio Gonzalez placed the defendant in handcuffs, as Officer Richie Gonzalez radioed that he had "two under" for driving while intoxicated.[FN1] The officer requested that a police officer from the Intoxicated Driver Testing Unit be sent to the hospital. Officer Richie Gonzalez attempted to speak with the defendant, but found that at times the defendant would only respond by speaking "gibberish;" to this officer, the defendant still appeared to be going in and out of consciousness.

At about 7:00 p.m., Police Officer Harrington Marshall, a fifteen year veteran of the NYPD who, as a member of the Highway Unit, is trained to administer tests related to individuals under arrest for operating motor vehicles while intoxicated, received a radio communication directing him to respond to St. Barnabas Hospital for a "blood job." That meant that he would be trying to obtain a blood sample from a motorist who was under arrest for driving while intoxicated. Officer Marshall arrived at the hospital prior to 7:30 p.m., did some paperwork, and entered the area where the defendant was being held. Officer Marshall spoke with the defendant for a couple of minutes. He identified himself as a police officer, told the defendant, in substance, that he was under arrest for Operating a Motor Vehicle While Under the Influence of Alcohol, and asked the defendant if he would agree to provide a blood sample for testing to determine his blood alcohol level. The defendant said, "No." Officer Marshall then told the defendant the consequences of refusing to provide the sample, stating, in substance, that the failure to provide a sample upon request would result in his license being suspended, and that evidence of his refusal could be introduced into evidence at trial. The defendant still said that he would not provide a blood sample. The time was approximately 7:35 p.m.

The defendant remained in the hospital. He was diagnosed as having a broken hip.

CONCLUSIONS OF LAW

First of all, the police had probable cause to arrest the defendant. The evidence demonstrates that the defendant had been involved in a very serious car accident. One police officer observed the defendant, the sole occupant of one of the two vehicles involved in that collision, seated in his vehicle, behind the steering wheel, and being "cut out" of the heavily [*3]damaged car. This is certainly ample evidence to support a conclusion that the defendant was driving that vehicle at the time of the collision. Both police officers detected an odor of alcohol coming from the defendant at the scene. Given these circumstances, the police plainly had probable cause to believe that the defendant's ability to operate his vehicle safely was impaired to some extent by alcohol, as well as probable cause to believe that he was intoxicated. See People v. Sarfaty, 291 AD2d 889 (4th Dept. 2002). Accordingly, the defendant's motion to dismiss all evidence obtained in this case based on the claim that the evidence was obtained as a result of an illegal arrest is denied.

The defendant has also moved to suppress the statement he made at the hospital "I'm drunk, Call my wife" arguing that it was illegally obtained as the result of custodial interrogation without the benefit of Miranda warnings. In addition, he argues that the statement should be inadmissible because it is "involuntary," in the classic sense of the word, because the defendant was seriously injured and in a hospital at the time he made it. As far as the Miranda argument is concerned, the defendant was not in custody when he made that statement. He was in the emergency room of a hospital. He had neither been handcuffed nor subjected to any restraint of any kind by the police prior to making that statement. While Officer Julio Gonzalez did ride in the ambulance with the defendant to the hospital, that hardly converted the situation from one in which a motorist injured in a serious car accident was being treated for his injuries to one in which that motorist was under arrest. In fact, a reasonable person, innocent of a crime, in this situation would have only believed that he or she was receiving medical aid and not in custody. See People v. Jean, 13 AD3d 466 (2nd Dept. 2004). Accordingly, the police were under no obligation to advise the defendant of his Miranda rights, either at the scene of the accident, or when they first arrived at the hospital.

Nor was the statement made by the defendant the result of police interrogation. The evidence at the hearing demonstrates that the defendant was not being questioned by the police at the time he made that statement.[FN2] Rather, he was being examined by a physician at the hospital. There is no evidence that the unnamed physician was acting at the behest of the police when he was speaking with the defendant. To the contrary, it appears that the emergency room personnel were doing their job assessing the seriousness of the injuries received by a patient brought in by ambulance. Under these circumstances, the statement is not suppressible because it was not in response to any direct or solicited police questioning. See People v. Esmail, 260 AD2d 396 (2nd Dept. 1999).

The defendant also argues that the statement is"involuntary" in the sense that it is not trustworthy, since he claims that he was so seriously injured that he was unable to make a voluntary statement. Of course, the mere fact that an individual has made a statement in a hospital setting after being seriously injured in a car accident does not render such a statement involuntary as a matter of law. See People v. Walker, 235 AD2d 262 (1st Dept. 1997). Here, there is evidence to support the fact that the defendant was at times able to speak with different [*4]individuals indeed, he did speak with medical personnel during the examination, and he did speak with Officer Marshall at the hospital. While there is evidence that the defendant was speaking "gibberish" at times to Officer Richie Gonzalez, there is no evidence linking that "gibberish" to the defendant's injuries as opposed to his alleged intoxication, let alone evidence that the defendant was so severely injured or so heavily intoxicated that he was unable to make a voluntary statement to anyone at any time. See e.g. People v. Schompert, 19 NY2d 300, 305-07; People v. Howard, 256 AD2d 1170 (4th Dept. 1998); People v. Butler, 175 AD2d 252 (2nd Dept. 1991); Cf. People v. Shields, 295 AD2d 374 (2nd Dept. 2002). Notably, the People are not privy to the defendant's medical records, nor do they have access to the medical personnel who were present at the time the statement was made to question them about the defendant's medical condition or what statements he made to them, as the defendant claims that this information is privileged. Had the defendant wished to, he could have submitted his medical records into evidence at the hearing on this issue. Cf. People v. Brown, 286 AD2d 508 (2nd Dept. 2001); People v. McClaney, 135 AD2d 901, 903 (3rd Dept. 1987). The evidence indicates, under the totality of the circumstances, that the defendant's statement was "voluntary" and trustworthy, and therefore not subject to suppression on this ground.

The defendant further argues that the statement should be inadmissible as an evidentiary matter because it is privileged. The People themselves introduced evidence that the defendant's statement was made in response to questions being asked by a doctor while that physician was assessing the defendant's medical condition after the defendant was brought by ambulance to the emergency room following a very serious car accident, and the defendant has relied on that testimony to assert the privilege. It is beyond cavil in New York that communications between a physician and a patient related to the patient's medical condition are privileged, and that the privilege belongs to the patient. CPLR 4504. In this case, it is clear a) that a physician-patient relationship existed between the defendant and the emergency room doctor; b) the physician obtained the information from the defendant that he was "drunk" in the course of initially treating the defendant; and c.) information that the defendant was "drunk" was related to the medical evaluation being done. Accordingly, the defendant's statement to the doctor about his intoxication is privileged. See Goldin v. Mejia, 294 AD2d 231, 232 (1st Dept. 2002). [FN3]

The People argue that the evidence demonstrates that the defendant waived the privilege because his statement was loud enough to have been overheard by others who were not medical personnel, including the police officer. The physician-patient privilege is not waived merely because a police officer is in a position to be able to overhear the statement a patient makes to a physician in a hospital setting. See People v. DeCina, 2 NY2d 133 (1956). Here, the People never introduced evidence to show that the defendant would have even been aware that the officer was within earshot of him as he spoke with the physician such that a waiver might even be able to be implied. See People v. Cooper, 38 AD3d 678, 680 (2nd Dept. 2007). And, the privilege was not waived simply because the statement was made to a physician in an open emergency room, as opposed to a private hospital room, as the People argue. As one commentator has observed, [*5]where "doctor-patient exchanges in hospital rooms and emergency care facilities in which absolute privacy is next to impossible" occur, it "makes good sense" for a court to assess all the surrounding circumstances to determine whether in fact the patient waived the privilege rather than concluding that the fact that there were other individuals in the area amounted to an automatic waiver. Vincent C. Alexander, Practice Commentary, McKinney's Cons Laws of NY, Book 7B,CPLR 4504, at page 631 (1992) (citing Decina). To rule otherwise would be contrary to one reason the privilege exists namely, to encourage patients to have open communication with their physicians without fear that these personal conversations would be revealed by the physician. See Pierson v. People, 79 NY 424, 432 - 33 (1880).

But, despite the fact that the statement is clearly privileged, and the defendant did not waive the privilege, it is still admissible because it is not being offered based on the testimony of the defendant's physician, or any other medical person present in the emergency room. Rather, it is being offered essentially by an "eavesdropper" in this case, Police Officer Julio Gonzalez. The physician-patient privilege is a "creature of statute" that was unknown at common law. Dillenback v. Hess, 73 NY2d 278, 283 - 286 (1989). The statute prevents a physician or some other medical professional from testifying about confidential, medically-related communications made by a patient being treated. However, the statute contains no explicit provision prohibiting another individual from testifying about a statement that they overheard a patient tell his or her physician. As the Court of Appeals has noted, there is a loophole in the statute that allows a third person who was not a medical care giver to testify about what that individual heard a patient tell his or her own physician. Prink v. Rockefeller Center, 48 NY2d 309, 315, n.2 (1979). The Court found it "curious" that the Legislature had "modified" the common-law rule permitting eavesdroppers to testify in regard to the "attorney-client" privilege, but not for all statutory privileges. Id. (citing Lanza v. New York State Joint Legislative Commission, 3 NY2d 92, 97 (1957); Compare CPLR 4503(a) with CPLR 4504(a); see generally Prince, Richardson on Evidence §5-318 (11th Edition 1995). Nonetheless, this is the law, and the legislature has not indicated a desire to change it by amending CPLR 4504. While allowing such third-party testimony would also seem to undermine a reason for the privilege by possibly discouraging open communications between injured individuals and their physicians in settings such as those in this case, a busy emergency room in a big city hospital with all sorts of people milling around, that is something that the legislature needs to address.[FN4] Accordingly, under current law, Police Officer Julio Gonzalez is not precluded from testifying about the statement he overheard the defendant tell the emergency room physician, "I'm drunk. Call my wife."

Finally, the People will be permitted to introduce evidence that the defendant refused to provide a blood sample after being requested to do so. The evidence at the hearing indicates that the defendant was asked to submit a blood sample for testing within two hours of his arrest. He was not under arrest until the police officer placed handcuffs on him at about 5:48 p.m., and the [*6]defendant was asked to submit a blood sample to Officer Marshall and refused to do so at about 7:38 p.m. The evidence also shows that the defendant persisted in refusing to agree to have blood drawn for use by the police. VTL § 1994(2)(f); See People v. D'Angelo, 244 AD2d 788 (3rd Dept. 1997). The defense argues that the refusal should be inadmissible, because the defendant was injured, in a hospital, and at times during the evening appeared to Police Officer Richie Gonzalez to be unresponsive or perhaps unconscious. The argument, at bottom, is that a defendant in this condition cannot make a refusal that is knowing, voluntary or persistent. However, there is, in fact, no evidence that the defendant was unconscious when he spoke with Officer Marshall; to the contrary, Officer Marshall indicated that the defendant responded to him when he twice asked him to submit to a blood test, refusing each time to take the test. Moreover, the fact that the defendant was severely injured in that he had a broken hip does not require a finding that the refusal is inadmissible as a matter of law. Matter of Gagliardi v. Department of Motor Vehicles, 144 AD2d 882, 884 (3rd Dept. 1988); Cf. People v. Morrisey, 21 AD3d 597, 599 (3rd Dept. 2005).

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York___________________

June 18, 2007Ralph Fabrizio, A.J.S.C. Footnotes

Footnote 1: Mr. Serrano, the driver of the Jeep that collided with the defendant's car, was also arrested and charged with Operating a Motor Vehicle While Under the Influence of Alcohol.

Footnote 2:In the People's response to the defense motion, the People stated that the defendant had in fact been questioned by police officers, but that the questioning was investigatory in nature. The People introduced no evidence of any statements that the defendant made in response to police questioning.

Footnote 3: Notably, the privilege would not prohibit the physicians testifying about any obvious physicals signs that they might have seen indicating that the defendant was intoxicated. Goldin, 294 AD2d at 232; People v. Hedges, 98 AD2d 950 (4th Dept. 1980)..

Footnote 4: People v. Jaffarian, 9 Misc 3d 455 (Justice Court, Town of Webster, Monroe County 2005) holds that the statutory physician-patient privilege bars a police officer from testifying about overheard communications between a nurse and a patient. This court respectfully disagrees with that holding. Jaffarian does not discuss Prink, which, as noted, recognizes the "eavesdropper" rule to be firmly rooted in the common law.