People v Japanwalla

[*1] People v Japanwalla 2010 NY Slip Op 50128(U) [26 Misc 3d 1218(A)] Decided on February 2, 2010 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2010
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Ovez Japanwalla, Defendant.



2007NA003237



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Raiser & Kenniff, P.C.

Andrew M. Engel, J.

The Defendant is charged with driving while intoxicated pursuant to VTL § 1192(3), as well as driving while impaired by drugs pursuant to VTL § 1192(4).

By order (Ricigliano, J.) dated March 19, 2008 a pre-trial hearing was directed to be held, limited to the issues of probable cause for the Defendant's arrest, the voluntariness of statements allegedly made by the Defendant and whether the Defendant's refusal to submit to a chemical breath test shall be admissible at trial as evidence of the Defendant's consciousness of guilt. This hearing was held on January 7, 2010.

At a Dunaway/Huntley [FN1] hearing, where a defendant challenges the legality of a seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) It is likewise the People's burden to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before the admission of these statements into evidence on the People's case in chief at trial. People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977). Similarly, before evidence of the Defendant's refusal to submit to a chemical breath test will be admissible at trial, the People bear the burden of establishing that the Defendant "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the [*2]person persisted in the refusal." VTL §§ 1194(2)(f)

The People attempt to meet their burden through the testimony of Police Officer Robert Kurtz and Police Officer Julian Baieto. After listening to and observing the demeanor of these officers, the court finds their testimony to be credible and makes the following findings of fact:

On February 1, 2007 at approximately 6:14 p.m. Officer Kurtz was alone, in uniform, in a marked radio motor patrol ("RMP") vehicle which was stopped on the ramp at Exit 34 of the westbound Long Island Expressway, assisting an oil truck stopped on the shoulder. Officer Kurtz's RMP was blocking the lane to the left of the truck for the truck driver's safety. With his RMP in this position, Officer Kurtz observed a black Dodge SUV pull up approximately ten to fifteen feet behind his RMP and come to a stop. In less than one minute after making this observation Officer Kurtz approached the SUV from the passenger's side; and, after the driver, whom the officer identified as the Defendant, rolled down his window, Officer Kurtz told the Defendant he was not in safe location and that he would have to move his SUV. At that time, the Defendant said something to Officer Kurtz which the officer could not understand, due to the Defendant's extremely slurred speech. Officer Kurtz then walked around to the Defendant's driver's side and told the Defendant to pull onto the shoulder next to the RMP. The Defendant complied.

Officer Kurtz then approached the SUV on the shoulder and asked the Defendant why he stopped in the lane, to which the Defendant responded that he had a few drinks four hours ago. At that time, Officer Kurtz noticed the Defendant to have a disheveled appearance, glassy bloodshot eyes, extremely slurred speech and the strong smell of alcohol about him. With this, Officer Kurtz asked the Defendant to exit his vehicle. Upon the Defendant doing so, Officer Kurtz observed the strong odor of alcohol and the Defendant to be unsteady on his feet. The Defendant needed to hold onto the vehicle to stand up.

At the rear of the Defendant's vehicle Officer Kurtz attempted to administer standardized field sobriety tests ("SFSTs"). The horizontal gaze nystagmus test resulted in the observation of six out of six clues of intoxication. In attempting to perform the nine step walk and turn test the Defendant took three steps, failing to placing heel to toe, and was extremely unsteady on his feet. Officer Kurtz stopped the test for the Defendant's safety. Officer Kurtz then administered a preliminary breath test, which resulted in a reading of .13. The Defendant was then placed under arrest, handcuffed and placed in the back of the RMP. The Defendant was not Mirandized [FN2] at this time.

During the twenty to twenty five minute ride to the central testing section ("CTS") the Defendant was seated in the rear of the RMP with two police officers in the vehicle. On the way to CTS the Defendant was told where they were going and what was going to happen at CTS. No questions were asked of the Defendant during this ride. On the way the Defendant began rambling and stated, "I was drunk and that's why I pulled up behind the police car, so I could turn myself in."

At CTS the Defendant asked to call his wife and was given that opportunity. While on the telephone the Defendant became agitated, engaging in a heated conversation with his wife; and, the telephone was taken away from him. Officer Baietto began his observations of the [*3]Defendant at 7:20 p.m. At that time he observed the Defendant to have red bloodshot and glassy eyes, slurred speech and some unsteadiness on his feet. While Officer Kurtz was taking pedigree information from the Defendant, the Defendant blurted out, "I know people in the District Attorney's office. I'm a lawyer. Just watch what happens." At 7:40 p.m. the Defendant was read the authorization and refusal warnings for a chemical breath test from the PDCN 38 form which was admitted into evidence as People's Exhibit 1. Immediately thereafter the Defendant responded by saying "refuse," the word "refuse" was circled on the PDCN 38 and the Defendant signed his name twice.

Officer Baietto then brought the Defendant into another room, where he was videotaped, again read the Defendant the refusal warnings from a script and again offered to conduct the chemical breath test as well as SFSTs. The Defendant orally refused both tests. Before leaving the Defendant Officer Baietto asked the Defendant, one more time, if he would submit to a chemical breath test. For the third time the Defendant refused. Thereafter the Defendant stated, "I'm going to fuck you up. I'm a bad ass. You will see what happens. I'm going to make it my mission to fuck you."

Based upon the foregoing, the court finds that Officer Kurtz's observations of the Defendant's condition, the positive HGN clues, the Defendant's inability to perform the nine step walk and turn test, the Defendant's admission that he had consumed alcoholic beverages that evening, and the results of the preliminary breath test, the Defendant's arrest was based upon probable cause. See: People v. Kowalski, 291 AD2d 669, 738 NYS2d 427 (3rd Dept. 2002); People v. Moran, 17 Misc 3d 1116, 851 NYS2d 65 (Dist. Ct. Suffolk Co. 2007)

The court further finds that the statements attributed to the Defendant were voluntarily made, either in response to reasonable inquiry pursuant to a routine traffic stop or blurted out by the Defendant, without any provocation by the police. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); People v. Mathis,136 AD2d 746, 523 NYS2d 915 (1988); People v. McGreal, 190 AD2d 869, 593 NYS2d 868 (2nd Dept. 1993); People v. Brown, 104 AD2d 696, 480 NYS2d 578 (3rd Dept. 1984); People v. Fiorello, 104 AD2d 708, 529 NYS2d 27 (2nd Dept. 1988) Either way, none of the Defendant's statements were the product of custodial interrogation requiring the Defendant to have been Mirandized.

As to the Defendant's refusal to submit to a chemical breath test, relying on People v. Rosado, 158 Misc 2d 50, 600 NYS2d 624 (Crim.Ct. Bronx Co.1993); People v. Pagan, 165 Misc 2d 255, 629 NYS2d 656 (Crim.Ct.Queens Co. 1995); and People v. Thomas, 46 NY2d 100, 412 NYS2d 845 (1978), the Defendant argues that his refusal must be suppressed because he was not offered the chemical breath test before refusal warnings were read to him. The Defendant's reliance on these cases is misplaced. The Defendant's argument is that an individual must first be given the opportunity to take the chemical test before the refusal warnings are read and that after an initial refusal to such an offer, then, for the first time, the refusal warnings are to be read. More particularly, Defendant argues that reading the refusal warnings in the first instance invalidates a defendant's subsequent refusal. Among the problems with such an argument is the fact that neither Rosado, Pagan nor Thomas stand for this proposition; and, the court has not found a single case which does.

In People v. Rosado, supra ., the court explicitly stated: "If, after first having been [*4]requested to submit to the test (whether with or without warnings), refusing, and then having been given the warnings, the driver still refuses, the person persisted in the refusal' and proof of the refusal may be admitted in evidence in court, provided the warnings have been delivered in clear and unequivocal language.' VTL 1194 § (2)(f)." While holding that the chemical test must be offered to a defendant at least twice before a refusal will be persistent, the court did not hold, as suggested by the Defendant, that the first offer must be made prior to the warnings having been read. To the contrary, the court recognized that the initial offer may be made "with or without warnings."

In People v. Pagan, supra ., the court even more emphatically rejected the Defendant's proposition, stating:

If this is indeed the current practice of the Police Department, to wit: not to give the warnings when a person initially consents, this Court disapproves of such practice, ...

This Court strongly urges a change in the manner in which the warnings are administered by the Police Department Intoxicated Drivers Testing Unit. It is suggested that instead of skipping and therefore omitting the entire set of statutory warnings in cases where the defendant initially consents, it would be better practice to administer all warnings at the outset.

In People v. Thomas, supra . the court upheld the constitutionality of VTL 1194 § (2)(f) and permitted the introduction into evidence of the defendant's refusal to submit to a chemical test where, upon the officer's arrival to administer a blood test he first "informed defendant of his rights and warned him that refusal to take the blood test might result in the revocation of his driver's license."

The court would further note that the holding in People v. Rosado, supra ., to the effect that 1194 § (2) "requires that the driver be offered at least two opportunities to submit to a chemical test, at least one of which must take place after being advised of the sanctions for refusal[,]" is not controlling on this court and has been discredited by courts subsequently addressing the issue. See: People v. Coludro, 166 Misc 2d 662, 634 NYS2d 964 (Crim.Ct. Kings Co.1995)["Firstly VTL § 1194(2)(f) does not require that the defendant be advised of his refusal warnings twice, only that the warnings be sufficient and in clear and unequivocal language'"]; People v. Andrews, 2002 WL 31163137, 2002 NY Slip Op. 50394 (Dist.Ct. Nassau Co. 2002) ["This court believes that VTL § 1194(2)(f) requires nothing more than that the defendant be given a clear and unequivocal explanation of the consequences of refusal, and that the defendant thereafter make a clear and unequivocal refusal to take the test. The Court believes that the persistence' requirement is satisfied by a defendant's conscious and definitive choice to refuse the test after having had the consequences of refusal explained to him. To require anything further is to elevate ritual form over substance."]; People v. Philip, 9 Misc 3d 1117(A), 808 NYS2d 919 (Dist.Ct. Nassau Co. 2005) ["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 (citations omitted)"] In fact, in Geary v. Commissioner of Motor Vehicles of State, 92 AD2d 38, 459 NYS2d 494 (3rd Dept. 1983), an appellate decision pre-dating Rosado, the court recognized that "Subdivision 4 of section 1194 of the Vehicle and Traffic Law does not require repeated refusals as petitioner contends." What is [*5]required is that the defendant be persistent in his refusal, See: People v. Ashley, 15 Misc 3d 80, 836 NYS2d 758 (App.Term 9th & 10th Jud.Dists. 2007), referring to "the quality and timing of the refusal, not the number of times one is asked to express it." People v. Philip, supra .

The above notwithstanding, in the matter before this court, the Defendant was offered, and refused, the chemical breath test three times after being clearly and unequivocally warned of the consequences of his refusal. Under these circumstances the court finds the Defendant's refusals to have been knowing, intentional, unequivocal and persistent.

Accordingly, that branch of the Defendant's motion which seeks to suppress his statements is denied. Likewise, that branch of the Defendant's motion which seeks to suppress evidence of his refusal to submit to a chemical breath test is denied. Each may be used by the People on their direct case at trial

This constitutes the decision and order of the court.

Dated: Hempstead, New York

February 2, 2010

___________________________

Andrew M. Engel

J.D.C. Footnotes

Footnote 1: Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)and People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965)

Footnote 2: Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)