People v Marietta

[*1] People v Marietta 2007 NY Slip Op 52476(U) [18 Misc 3d 1109(A)] Decided on December 31, 2007 Supreme Court, Kings County Goldberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2007
Supreme Court, Kings County

The People of the State of New York

against

Ronald Marietta, DEFENDANT.



7224/05

Joel M. Goldberg, J.

By an Omnibus motion, dated May 16, 2007, the defendant, who is charged with Vehicular Manslaughter in the Second Degree, Operating a Motor Vehicle Under the Influence of Alcohol, and related charges, moved to suppress police-administered Intoxilyzer results, contending that the test was given more than two hours after the defendant's arrest and that the defendant did not voluntarily consent to take it. See CPL 710.20 (5). Although the blood alcohol reading was .046 percent which would be prima facie evidence that the defendant was neither driving while intoxicated nor impaired (VTL 1195 [2] [a]), it is the People's intention to show by "retrograde extrapolation evidence" that the defendant's blood alcohol content at the time he was driving was .106 percent.

The People opposed the motion to suppress in an undated, unsigned response filed with the Court on June 19, 2007.

The defendant filed a reply affirmation dated July 5, 2007.

A hearing was held on this motion on October 15 and October 23, 2007. The hearing also included the defendant's motion to suppress his statements to the police. At the conclusion of the hearing, the defendant withdrew his request to suppress the statements.

Following the hearing, the parties submitted memoranda, each dated October 30, 2007.

On November 19, 2007, the Court orally denied the motion to suppress the Intoxilyzer results. This written decision amplifies the Court's oral decision.

THE HEARING - FINDINGS OF FACT

The People called Police Officer Andrew Gilsenan, retired Police Officer Joseph Argento, and Detective Michael O'Conner. The defense called Police Officer Scott Lothrop and Bryon Mankuso. The defendant also testified. To the extent indicated, I find all the witnesses to be credible .

The Scene [*2]

On March 13, 2005, at approximately 3:38 a.m., Police Officer Andrew Gilsenan of the Police Department's Highway Two Unit received a police radio communication directing him to respond to the scene of a collision on the westbound Belt Parkway near Bay Eighth Street in Brooklyn. Officer Gilsenan arrived at the location between 3:40 and 4:00 a.m. where he initially observed a silver Nissan Altima with substantial damage. After stopping near the Nissan, he observed a second vehicle, identified as a red Chevrolet Suburban, approximately 1000 feet to the west where it had gone through the fence of the Fort Hamilton Army Base. Two ambulances and a number of fire trucks were already at the scene.

Officer Gilsenan went to one of the ambulances and asked the three people being treated if they had been involved in the accident, what car they had been in, and who had been driving. Officer Gilsenan learned all three occupants of the ambulance had been in the Nissan at the time of the collision and that the defendant, identified as Ronald Marietta, had been driving. The other two individuals in the ambulance were Bryon Mankuso and Joseph Pullio who had been passengers in the defendant's car.

Officer Gilsenan then approached the red Suburban where he observed an unconscious individual on the ground being attended to by EMS.

Officer Gilsenan returned to the ambulance and spoke with the defendant who stated that he had been traveling eastbound on the Belt Parkway when he was cut off and did not remember exactly what happened after that. The defendant said he had been at Club Legacy and drank one Long Island Iced Tea prior to the collision.

In addition to Officer Gilsenan, Police Officer Scott Lothrop, also of Highway Two, responded to the scene. He arrived at approximately 3:52 a.m. It is not clear from the record whether he arrived before or after Officer Gilsenan, but Officer Gilsenan was the officer in charge of the scene. Officer Lothrop learned that there was one fatality at the scene, and a second individual, described only as "a female," who had injuries.

Officer Lothrop administered a portable breath test known as an Alco-Sensor to each of the three men in the ambulance including the defendant. The defendant was advised that the test was being administered because there was a fatality and was not told he could refuse the test. The defendant's Alco-Sensor was administered at 4:15 a.m. and resulted in a reading of .062 percent blood alcohol content. Mr. Mankuso and Mr. Pullio each registered a reading of zero. Officer Gilsenan was not present when Officer Lothrop spoke to the defendant or administered the tests but was told of the result.

Both officers independently observed the defendant to have bloodshot, watery eyes and each noticed the slight smell of alcohol when they were speaking with him in the ambulance. Although Officer Gilsenan believed there was probable cause to arrest the defendant, the defendant was not handcuffed or informed that he was being arrested. Officer Gilsenan explained that his intention was to document the scene not to arrest anyone at that time.

Instead, the defendant, along with Mr. Mankuso and Mr. Pullio, were taken in the ambulance to Lutheran Hospital. According to Officer Gilsenan, the defendant was taken to the hospital for examination based on the defendant's loss of consciousness, his not remembering what happened, and his use of alcohol. No police officers traveled with them inside the ambulance. Officer Gilsenan was aware that other police officers would continue the investigation at the hospital.

The Hospital

The ambulance arrived at Lutheran Hospital at approximately 4:30 a.m. Although the police had not accompanied the ambulance, two unidentified uniformed police officers were already present at the hospital when it arrived. The defendant and his two friends were examined at the hospital but not admitted. The examinations were completed by approximately 5:00 a.m. These officers, who were not from Highway Two, told all three men they could not leave until a Highway Accident Investigator arrived to speak with them.

The officers directed the defendant and his two friends to a waiting area inside the emergency room and stayed within close proximity, approximately 10 to 15 feet from where the three were sitting together The officers did not question the defendant or his friends, never said anyone was under arrest, and no one was handcuffed. The defendant testified that while waiting for the Highway Officer to arrive at the hospital, he did not believe he was going to be arrested or charged with any crime, because he did not think he had done anything wrong.

Police Officer Joseph Argento of Highway Unit Two (now retired) was notified of the accident at approximately 4:30 a.m. He was assigned to continue the investigation begun by Officers Gilsenen and Lothrop. Officer Argento first went to the scene where he remained briefly before going to the hospital. Officer Argento arrived at Lutheran Hospital at approximately 5:50 a.m., entered the emergency room, and spoke briefly with one of the unidentified uniformed officers before speaking to the defendant. Officer Argento observed the defendant had red, watery, bloodshot eyes and smelled the odor of alcohol on the defendant's breath. At that point Officer Argento concluded that the defendant was under the influence of alcohol. Officer Argento was not aware that the defendant had taken a prior Alco-Sensor with a reading of .062.

At about 6:10 a.m., at the hospital, Officer Argento asked the defendant to blow into an Alco-Sensor which gave a reading of .060 percent blood alcohol content. The defendant was not told that he could refuse to take this test. At the completion of the test, the defendant was placed under arrest and handcuffed.

The defendant was given his Miranda warnings shortly after being placed under arrest, either in the hospital or soon after being placed in the police car. The defendant agreed to answer questions. However, Officer Argento did not question the defendant at that time. The defendant was then driven to the 78th Precinct Intoxicated Driver Testing Unit (IDTU).

The 78th Precinct

After arriving at the 78th Precinct, Officer Argento questioned the defendant in order to obtain certain information to complete a four-page IDTU form that contains questions routinely asked prior to the administration of a chemical breath test. The defendant was asked what he was doing prior to the accident, when he last ate, where he had been, what he had to drink, how much he had to drink, and what time he began and finished drinking.

After completing the required IDTU paperwork, Officer Argento brought the defendant to the room where breath tests are administered. The examination was videotaped and a DVD copy was provided to the Court and admitted in evidence. [*3]

On the video recording Officer Argento identified himself and stated the date, March 13, 2005, and time, 7:44 a.m. After giving the name of the videotape operator, who was the only other officer present, Officer Argento stated to the defendant, "I would like you to take a breath test, will you take the test?" The defendant replied, "Yes, I will." The defendant was instructed on how to perform the test and then did so about two minutes after Officer Argento's statement that the time was 7:44 a.m. The chemical breath test machine, identified as an Intoxilyzer 5000, registered a reading of .046 percent blood alcohol content. The defendant was not advised prior to taking the test that he had an option to refuse it or what the consequences of a refusal would be.

After completing the breath test, Officer Argento asked the defendant if he would take a physical coordination test. The defendant agreed and performed each of those tests which were also videotaped.

At the hearing, the defendant testified that he agreed to take this breath test because he had been told prior to each of the two Alco-Sensor tests that he had to take them by law because there was a fatality.

Detective Michael O'Connor of Highway Patrol Investigations was called as a witness, because he obtained statements from the defendant at the 78th Precinct after re-advising the defendant of his Miranda rights. These statements were made after the breath test. Although reflecting the defendant's continued cooperation with the investigation, these statements concern the events leading up to and including the collision. The substance of these statements do not bear on the issues involved in this decision, and, therefore, need not be discussed.

CONCLUSIONS OF LAW

The Two-Hour Issue

The defendant contends that the Intoxilyzer test result taken at the 78th Precinct at about 7:44 a.m. should be suppressed, because the test was given more than two hours after the defendant's arrest in violation of the time limit set forth in VTL 1194 (2) (a) (1) and without his express and voluntarily given consent. See People v. Atkins, 85 NY2d 1007, 1009 (1995).

Pursuant to VTL 1194 (2) (a) (1), an operator of a motor vehicle is deemed to have consented to a chemical test of the operator's breath to determine blood alcohol level if the test is given within two hours of arrest based on a police officer's having reasonable grounds to believe such person operated a motor vehicle while under the influence of alcohol.

Alternatively, pursuant to VTL 1194 (2) (a) (2), consent to a chemical test of an operator's breath is also deemed to have been given if it is administered within two hours of a breath test indicating that alcohol has been consumed. In this case, the defendant's breath tested positive for alcohol at 4:15 a.m. three-and-a half hours before the chemical breath test was given. However, in cases such as this, where there is both a positive breath test and an arrest, the two-hour window of deemed consent for a chemical test begins from whichever event is the later. People v. Zawacki, 244 AD2d 954 (4th Dept. 1997).

While the two-hour rule of VTL 1194 (2) (a) (1) may at one time have been intended to insure that chemical tests were administered within a reasonable period of time from when [*4]the operator was driving so as to insure a reliable correlation between the blood alcohol level revealed in the test result and the blood alcohol level at the time of the vehicle's operation, current case law interpreting this statute does not require as a pre-requisite to admissibility a showing of the probative value of a test administered more than two hours after the defendant's arrest. People v. Atkins, 85 NY2d at 1009 (no time limit for tests based on an operator's consent, or tests based on a court order, or tests given by a physician of the operator's own choosing). Compare People v. Victory, 166 Misc 2d 549 (Crim Ct, Richmond County 1995)(test given after two hours would require expert testimony demonstrating test result was indicative of blood alcohol level at time of vehicle's operation).

Therefore, although the collision in this case occurred at approximately 3:38 a.m. and the Intoxilyzer test was not given until over four hours later, if the test was given within two hours of the defendant's arrest, the result will not be precluded based on a violation of the time limits in VTL 1194 (2) (a).

Thus, the time of the defendant's "arrest" must be established in order to determine if the defendant can be deemed, pursuant to VTL 1194 (2) (a) (1), to have consented to the chemical test of his breath administered at the 78th Precinct at approximately 7:44 a.m.

The People contend that the two-hour time clock did not begin until approximately 6:10 a.m. when the defendant was formally advised he was under arrest at the hospital. The defendant contends that the police had probable cause to arrest the defendant after the 4:15 a.m. breath test showed he had consumed alcohol and that when the defendant arrived at the hospital at approximately 4:30 a.m. and saw the uniformed police officers there, a de facto arrest occurred at that time, because the defendant knew he was not free to leave until an investigator from the Highway Unit arrived to speak with him.

Defining the term "arrest" in this context is of critical importance. However, the parties have not supplied and the Court is unaware of an appropriate definition to apply, other than the standard for determining when a person is deemed to be "in custody" and, therefore, entitled to be given Miranda rights by the police. As stated in Kamins, New

York Search and Seizure, §2.06 [2] at 2-110 (2007 ed):

In determining whether an arrest has been made, the Court of

Appeals has refused to consider the subjective belief of the officer or

the suspect as the dispositive factor. Instead, the Court has looked to

"what a reasonable man, innocent of any crime, would have thought

had he been in the defendant's position." People v. Yukl, 25 NY2d

585, 589 (1969).

Under this test, the defendant was not "arrested" at the scene of the collision. At the scene the defendant was treated by ambulance personnel, only briefly questioned by the police along with his two friends, given an Alco-Sensor test, and then allowed to ride with his friends in an ambulance to the hospital unaccompanied by the police. A reasonable person in the defendant's position who had not been drinking or driving recklessly would not have believed he or she was in custody at that point in time, especially after being allowed to leave unaccompanied by the police.

Even though the police had probable cause to arrest the defendant and did not intend [*5]to allow him to leave after arriving at the hospital, the subjective state of mind of the police is not controlling on the question of whether the defendant was in custody.

Therefore, the time of "arrest" for determining the application of the two-hour rule in this case did not occur until after the defendant left the scene in the ambulance.

Once the defendant arrived at the hospital at approximately 4:30 a.m., he was not questioned or handcuffed by the uniformed officers who were there to meet him. Instead, he and his two friends waited to be examined. The defendant's examination was completed by approximately 5:00 a.m. Up to that point, the police did not in any way interfere with the defendant's movements, and a reasonable person in the defendant's position, innocent of any crime, would not have believed that an "arrest" had taken place.

After being examined, the defendant and his two friends were told by uniformed police officers that they could not leave pending further questioning by an investigator. The defendant and his friends were required to wait at the hospital, apparently in a public area of some sort, while the uniformed police officers remained nearby. They waited for approximately 50 minutes until Officer Argento arrived at 5:50 a.m. Officer Argento had taken over the case from the Highway Officers who originally responded to the scene, and so before going to the hospital, Officer Argento had been at the scene of the collision.

The defendant argues that if he had not been "arrested" earlier, his being told by uniformed police at 5:00 a.m. that he could not leave the hospital constituted an "arrest" at that point, approximately 2 hours and 45 minutes before the Intoxilyzer test.

However, not every detention by the police constitutes an "arrest." Under certain circumstances, the police may, after making a lawful stop, detain a suspect for a brief period of time to investigate criminal activity. People v. Hicks, 68 NY2d 234 (1986); Kamins at 2-108. In People v. Ortiz, 232 AD2d 898 (1st Dept. 1996), rev'd on other grounds, 90 NY2d 533 (1997), a temporary detention of one and one-half hours to enable police officers to arrive to identify the defendant was held to be reasonable. See also People v. Lyng, 104 AD2d 699 (3rd Dept. 1984)(defendant transported to police station and held less than an hour pending an investigation).

In this case, the police at the hospital were responsible for not letting the defendant leave until the Highway Officer later assigned to investigate the case, Officer Argento, had arrived. The defendant was kept there in the company of his friends under no other restriction for approximately 50 minutes before Officer Argento arrived to question the defendant and administer an Alco-Sensor test. In fact, the defendant testified at the hearing that even though he knew he was not free to leave, he did not believe he was under arrest or that the police had any reason to arrest him.

The record does not establish the reason for the apparently administrative decision to assign Officer Argento to respond to the hospital and continue the investigation in the case rather than have the Highway Unit officers who initially responded to the scene, Gilsenen and Lothrop, respond to the hospital. It appears Officer Lothrop gave an Alco-Sensor test at the scene but this was not supposed to be his case, so he was re-deployed to where he belonged, and Officer Gilsenen remained at the scene to document the physical conditions and take witness statements. The delay in Officer Argento responding to the hospital and ultimately administering the Intoxilyzer test was not at all due to "incompetent police officers who dally in their effort to bring a defendant to the police station" to administer a chemical [*6]breath test as in People v. Morris, 8 Misc 3d 360, 365 (Crim Ct, Richmond County 2005).

It is clear that the police knew the defendant was taken to Lutheran Hospital for examination and would not be available for further questioning, arrest processing, or a chemical test until the hospital examination had been completed. Under these circumstances, it is understandable that police officials responsible for assigning Highway Officers to investigate cases would not wish to have one of these officers spend time in a hospital simply waiting for the suspect's examination to be completed when there were other officers available to detain the defendant pending the arrival of the Highway Officer. Bearing in mind that only police officers with specialized training are qualified to administer chemical breath tests and that this was a homicide case as well as a case involving intoxicated driving, the police department was entitled to a reasonable time to send a qualified investigator to the hospital.

Under these circumstances, I find the approximately 50 minute detention of the defendant pending the arrival of Officer Argento to be a reasonable period during which the defendant was "detained" rather than "arrested" for purposes of determining when the two-hour clock of VTL 1194 (2) (a) (1) should start. Once Officer Argento arrived at the hospital and administered his own breath test, the defendant was informed he was under arrest at 6:10 a.m. I find this to be the "arrest" time for purposes of VTL 1194 (2) (a) (1). Therefore, the Intoxilyzer test at the 78th Precinct, which was administered at approximately 7:44 a.m. to 7:46 a.m. was within two hours of that arrest, and, pursuant to VTL 1194 (2) (a) (1), the defendant is deemed to have consented to taking that test.

Actual Voluntary Consent

Even if a chemical breath test is given two hours after arrest and, therefore, not within the "deemed consent" provisions of VTL 1194 (2) (a) (1), where a defendant "expressly and voluntarily" consents to the administration of the test, the two-hour limitation of the statute does not preclude admissibility of the result. People v. Atkins, 85 NY2d at 1009.

The defendant testified at the hearing that he was told at the scene that he "had to take" a breath test because there was a fatality. (See VTL 1194 [1] [b] which states, in part: "Field testing. Every person operating a motor vehicle which has been involved in an accident ... shall, at the request of a police officer, submit to a breath test to be administered by the police officer." Pursuant to VTL 1800 [a], refusal to submit to this test is a traffic infraction.) The defendant took this test at approximately 4:15 a.m.

The defendant also testified that after being examined at the hospital and being told that he could not leave pending the arrival of an officer assigned to investigate the matter, Officer Argento arrived and told him that he "had to take" a "portable breathalyzer test" at the hospital because there was a fatality. The defendant took this test at the hospital at approximately 6:10 a.m.

As reflected on the videotape of the Intoxilyzer test given at the 78th Precinct at about 7:44 a.m., Officer Argento said to the defendant while they were standing at the Intoxilyzer device, "I would like you to take a breath test, will you take the test?" The defendant replied, "Yes. I will." At the hearing, the defendant testified that, based on his previously being told he was required to take the two prior breath tests, he did not believe he had a legal right to refuse to take this test. [*7]

By the words reflected on the videotape, the defendant "expressly" consented to take the chemical breath test at the 78th Precinct. Whether his consent was "voluntary," that is, a product of his own free will, is the issue.

It should be noted that Officer Argento did not give the defendant the so-called "refusal warnings" contained in VTL 1194 (2) (c) and (f) prior to asking the defendant if he would take the test to the effect that a refusal to take the test would result in immediate suspension and subsequent revocation of his driver's license and that evidence of his refusal could be introduced in evidence against him. Because the defendant agreed to take the test, there was no need to give the refusal warnings, which only need be given to a person who persists in refusing the test in order to effectuate the statutory consequences of a refusal after being warned of the consequences. People v. Rosado, 158 Misc 2d 50, 52 n.1 (Crim Ct, Bronx County 1993); Gerstenzang, Handling the DWI Case in New York, §41:23, at 795-797 (2007-08 ed). Thus, no argument can be made that the refusal warnings themselves coerced the defendant to take the test. See People v. Dillin, 150 Misc 2d 311, 314-317 (Crim Ct, NY County 1991); People v. Hochheimer, 119 Misc 2d 344, 353 (Sup Ct, Monroe County 1983)(the statutory refusal warnings, although arguably coercive in nature, do not constitute impermissible coercion).

The defendant argues, based on procedure 209-40 of the July 2007 Patrol Guide of the New York City Police Department, that Officer Argento, rather than merely asking the defendant if he "would like to take a breath test," should have told the defendant that he had a right to choose whether or not to take the breath test. (The Patrol Guide procedure states that where more than two hours have elapsed from the time of arrest, the prisoner should be told, in part, "You may take the test or refuse to do so. Will you submit to a chemical test [to determine the presence of absence of alcohol in your blood]?").

Assuming more than two hours had passed from the time of the defendant's arrest and, therefore, there would be no adverse legal consequences to the defendant for refusing to take the test (other than possibly losing the opportunity to generate exculpatory evidence), informing the defendant that he had a right to choose whether or not to take the breath test was neither required by law nor a pre-requisite to a finding that he voluntarily took the test. Although the Court in People v. Kenny, 9 Misc 3d 1104(A)(Crim Ct, Richmond County 2005), stated that a defendant taking a chemical test more than two hours after arrest should be told that taking the test was not required, that view was specifically rejected in People v. Burns, 13 Misc 3d 1208(A) (Nassau Dist Ct 2006). (It should be noted that, contrary to the Patrol Guide's statement of advice to be given more than two hours after arrest, some courts have held that because a defendant may consent to take a chemical test more than two hours after arrest, a refusal to take the test more than two hours after arrest is probative of consciousness of guilt and is admissible. People v. Ward, 176 Misc 2d 398 [Sup Ct, Richmond County 1998]; People v. Morales, 161 Misc 2d 128 [Crim Ct, Kings County 1994]).

In cases where the police claim a person voluntarily waived the Fourth Amendment's probable cause/warrant requirements and consented to a warrantless search, the law does not require that the person be specifically told that the request to search may be refused, although whether or not this was done may be considered in determining whether the consent was genuinely voluntary or the result of yielding to police pressure. People v. Gonzalez, 39 [*8]NY2d 122, 130 (1976). In cases where a warrantless search is based on a claim of consent, the People have a "heavy burden" of proving voluntariness. People v. Gonzalez, 39 NY2d at 128; People v. Whitehurst, 25 NY2d 389, 391 (1969).

However, where the question is whether a defendant voluntarily consented to take a chemical breath test more than two hours after being arrested a question which has no Constitutional implicationsand where by statute the Legislature could "deem" consent to be given for more than two hours after an arrest if it saw fit to do so the People's burden to show the consent was voluntarily given should only be by a preponderance of the evidence. See People v. Davis, 8 Misc 3d 158, 159 (Sup Ct, Bronx County. 2005); People v. Lynch, 195 Misc 2d 814,820 (Crim Ct, Bronx County 2003); People v. Walsh, 139 Misc 2d 161, 163-164 (Nassau Dist Ct 1988)(People's burden to show refusal warnings properly given within two hours of arrest is by a preponderance of the evidence).

In this case, when Officer Argento asked the defendant if he would take the chemical breath test, the defendant was under arrest in the Precinct, a factor tending to show he may have felt some pressure to please the police. On the other hand, there was only one other police officer present at the time, and the defendant had been totally cooperative with the police up to that point. He did not ask for an attorney when given his Miranda rights, and he continued to be cooperative after the chemical breath test by submitting to various coordination tests and later giving a statement. The police had not engaged in any overt or subtle coercive or other improper behavior, other than correctly telling the defendant, hours before, that he was obliged under the law to take the Alco-Sensor tests which the defendant never said he did not want to take.

In this case, the defendant was mistaken in his belief that he was required under the law to take the chemical breath test. This mistake was not the result of police misconduct or other improper tactics designed to obtain his consent. The police, assuming two hours from the time of arrest had elapsed, would not have been required by law to inform him that, unlike the previously given Alco-Sensor tests, he was not required to take this chemical test, just as they would not be required by law to tell a defendant that there was a right to refuse to consent to a warrantless search. As reflected on the videotape, Officer Argento said, "I would like you to take a breath test. Will you take the test?" The defendant (bearing in mind that he did not believe he had done anything to warrant being arrested, was sober at the time with a blood alcohol reading of .046 percent, and subsequently performed well on the videotaped coordination tests), more probably than not, positively responded because he believed the test would tend to exculpate him and he was more than willing to demonstrate that he "had nothing to hide," not because he believed he had no choice other than to consent to take the test and inculpate himself.

As stated in Atkins, the required consent after two hours must be "voluntarily" given. There is no requirement that, as in guilty plea situations or Miranda waivers, the consent also be "knowingly" and "intelligently" given. In other words, a mistake of fact, a failure to appreciate the consequences, or a lack of understanding of the situation on the part of a defendant may invalidate a guilty plea or a Miranda waiver, but these circumstances will not render involuntary a consent to take a chemical breath test after two hours, a consent that does not implicate a waiver of a Constitutional right.Indeed, in these situations the individual may very well be so heavily intoxicated that under the law the individual would [*9]be incapable of either validly pleading guilty or waiving Miranda rights, but, nevertheless, may validly consent to take a chemical breath test after two hours as long as the person's choice to do so was not improperly influenced by police misconduct. See Gagliardi v. Department of Motor Vehicles, 144 AD2d 882 (3rd Dept. 1988); Carey v. Melton, 64 AD2d 983 (2nd Dept. 1978) (intoxication at the time of refusal warnings resulting in an inability to comprehend the adverse consequences of a refusal does not excuse the refusal); cf Jentzen v. Tofany, 33 AD2d 532 (4th Dept. 1969).

Therefore, the defendant's mistaken belief that the law required him to consent to take the chemical breath test did not per se render his decision to do so involuntary.There being no other claim with regard to the defendant's decision to take the chemical breath test, the People have established to the satisfaction of the Court that had the test been given more than two hours after the defendant's arrest, the result would be admissible based on the defendant's express and voluntary consent to take it, notwithstanding his claim that he believed the law did not allow him to refuse.

Accordingly, the defendant's motion to suppress the chemical breath test result is denied.

SO ORDERED

JOEL M. GOLDBERG

JUDGE