People v Singh

[*1] People v Singh 2010 NY Slip Op 50367(U) [26 Misc 3d 1234(A)] Decided on February 24, 2010 District Court Of Nassau County, First District Ferrell, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2010
District Court of Nassau County, First District

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

against

Tejinder Singh, Defendant(s)



2008NA024025



Honorable Kathleen Rice, District Attorney

240 Old Country Road

Mineola, NY 11501

Brunetti, Ascione, & Tomich, PLLC

170 Old Country Road, Suite 610

Mineola, NY 11501

Tricia M. Ferrell, J.

Decision After Hearing

The defendant is charged with three violations of the Vehicle and Traffic Law: Section 1192.3, Driving while intoxicated, per se; Refusal to take breath test in violation of Section 1194.1; and Crossing road hazzard markings in violation of section 1128(d).

A combined, Mapp/Huntley/Dunaway/Refusal hearing was conducted October 26, 2009 on the consent of both parties. The sole witness, Trooper Longarello, testified on behalf of the People. Based upon the credible evidence adduced at the hearing, this Court makes the following findings of fact and conclusions of law.

Findings of Fact

This court finds the testimony of Trooper Anthony Longarello credible. This trooper is a 3 ½ year veteran of the New York State Police Department. In addition to the training he received at the New York State Police Academy, he's been involved in over 100 DWI related investigations.

Trooper Longarello testified that on September 15, 2008 he was assigned to patrol during his tour of duty with Trooper Vargas. The assigned area of patrol was post 971, which entails the Northern State Parkway exits 32 to Queens. During his tour of duty, while traveling east bound on the Northern State Parkway, east of the Meadowbrook State Parkway, he observed a blue Lexus traveling over the road markings. This initial observation of the vehicle took place at approximately 1:07 a.m. and as the trooper continued to observe the vehicle, he noticed that it continued to cross over the lane markings several times. Based on his observations, Trooper Longarello conducted a traffic stop of this vehicle.

Upon pulling the vehicle over, the trooper approached the driver's side of the vehicle and requested that the operator produce his license and registration. As the operator, Tejinder Singh, spoke to the trooper, a smell of alcohol emanated from his breath; his eyes were glassy and blood shot and his speech was slurred. The trooper asked the operator if he had been drinking and his response was that he had been drinking at Richmond Hill. Thereafter, the operator was asked to perform Standardized Field Sobriety Tests: the Horizontal [*2]Gaze Nystagmus Test, One Leg Stand, and the Walk and Turn Test. During the operator's performance of these tests, the trooper noticed him swaying, using his arms to balance and failing to follow his directions; subsequently, the operator was placed under arrest.

Trooper Longarello asked the defendant/operator to submit to a chemical test three times. The first request took place at approximately 1:22 a.m. at the arrest location. The trooper read from the DWI Refusal Card (See People's 2 in Evidence) and the defendant indicated that he understood what was read, but didn't respond when asked to take the test. Immediately thereafter, the trooper read the defendant his Miranda rights, the defendant also acknowledged understanding these rights (See People's 3 in Evidence) and was transported to the barracks for processing.

The second time the defendant was asked to submit to a chemical test took place when he along with the trooper arrived at the State Police - Lake Success Barracks and they entered into the arrest processing room. Again, the trooper read from the DWI Refusal card and the again the defendant didn't respond. Afterwards, Trooper Longarello, along with Trooper Vargas and their supervisor, Sergeant Weise, explained the consequences of not taking the test to the defendant in laymen's terms. Without any additional questions being presented to the defendant, he stated, "I know I did a stupid thing and I fucked up." Trooper Longarello then proceeded to request that the defendant submit to the test, again, by reading the DWI Refusal card and again, the defendant said nothing.

Conclusions of Law

Trooper Longarello's observations of the defendant's violations of the Vehicle and Traffic Law provided him with a lawful basis for stopping the vehicle. The temporary roadside detention after stopping the defendant for a traffic infraction was permissible and non-custodial in nature. People v. O'Reilly, 16 Misc 3d 775, 842 NYS2d 292. Once lawfully stopped, the trooper was permitted to conduct a reasonable initial investigation in which Miranda warnings were not required. People v. Burnes, 16 Misc 3d 1129(A), 2007 WL 2410858. It was during the initial investigation that the defendant admitted he had been drinking at Richmond Hill. This statement was not obtained by means of coercion or unfairness, but was made voluntarily by the defendant and therefore admissible at trial. [*3]

The trooper's observations of the defendant during this brief inquiry included slurred speech, glassy, bloodshot eyes and the odor of alcohol from his breath. The initial observations of the defendant's operation of the motor vehicle and the observations of the defendant when he spoke to the trooper, coupled with the defendant's statement, led the trooper to ask the defendant to perform Standard Field Sobriety Tests. The defendant's poor performance of these tests, coupled with the aforementioned observations, provided the trooper with reasonable grounds to believe the defendant had been driving in violation of Vehicle and Traffic Law 1192 and probable cause to place the defendant under arrest. People v. O'Reilly, 16 Misc 3d 775, 778. Therefore, the evidence obtained as a result of the defendant's arrest is not subject to suppression.

Trooper Longarello read the defendant his rights from "the Miranda card" and the "DWI Refusal card" after placing the defendant under arrest. The defendant indicated that he understood his rights, but didn't affirmatively state whether he would or would not submit to a chemical test; instead, he remained silent when the question was first asked of him at the location of the arrest. However, after being read the DWI Refusal card for the second time at the barracks and having the consequences of a refusal explained by the troopers and their supervisor, the defendant admitted to doing something stupid and in essence stated he messed up. When he made this admission, the defendant wasn't responding to any questions asked of him. Furthermore, the troopers attempt to explain the consequences of not taking the test fell far from being the functional equivalent of an interrogation, provoking the defendant to saying anything about his guilt or innocense.

The refusal warnings were designed to elicit a response from the defendant in terms of an informed consent or informed refusal to take the chemical test; they were not designed to elicit damaging admissions by the defendant about the case. People v. Robles, 180 Misc 2d 512, 691 N.Y.A.2d 697. With no interrogation taking place, the defendant's rights as stated in the Miranda warnings previously read to him were not violated by the troopers. There is no evidence in the record to indicate that the refusal warnings, albeit subsequently stated in laymen's terms, would be likely to evoke an incriminating statement. Moreover, at the time the defendant made this statement, he was not being spoken to at all. Therefore, this statement is also deemed admissible at trial.

The remaining issue before this court relates to the refusal warnings given to the defendant when asked to submit to a chemical test. The People are required by statute to prove that the defendant was given "sufficient warning, in [*4]clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal". Vehicle and Traffic Law § 1194(2)(f). See also People v. Lynch, 195 Misc 2d 814, 762 NYS2d 474.

The defendant asserts in his Memorandums of Law (and at the hearing) that the refusal warnings given were not sufficient, in that the trooper failed to use clear and unequivocal language when informing the defendant of the ramifications for failure to submit to a chemical test. More specifically, the defendant argues that the testimony of the trooper indicating that he, along with Trooper Vargas and Sergeant Weise, explained the effects of not taking the test to the defendant is evidence that he was not properly warned of his rights according to the law. In support of this argument, the defendant cites, People v. Abdel-Fattah, 2004NA08655 (N.Y.Dist.Ct.), which was decided by the Hon. William J. O'Brien on December 14, 2005. The Abdel-Fattah case involved a defendant who was asked to submit to a chemical test; the first request was made by the officer reading the "appropriate warning." Thereafter, the officer gave a similar "layman's terms" explanation to the defendant and the court ruled that the subsequent warning made by the officer vitiated the validity of the printed warning initially administered to the defendant. Citing Gargano v. N.Y.S. Dept. of Motor Vehicles, 118 AD2d 859, 500 NYS2d 346, the court in Abdel-Fattah found that if the explanation of the warning amounted to incorrect information, the warning is neither clear or unequivocal. Thus, anything outside of the statutory warning fails to properly notify the defendant of the "serious and immediate consequences of a refusal to submit to a chemical test." Gargano at 860. See also People v. Morris, 8 Misc 3d 360, 793 NYS2d 753.

The facts of the case at bar appear to be identical to the facts of the Abdel-Fattah case in that the troopers' attempts to clarify or explain the warnings to the defendant, similar to the officer using his own words in Abdel-Fattah, amount to the defendant being denied his statutory warnings. Ultimately, if the defendant is not adequately informed of these warnings, this court as the court in Abdel-Fattah must grant the defendant's application to suppress evidence related to the defendant's refusal. The only way the court may rule otherwise is if there is evidence to show that after the defendant was given the explanation in layman's terms, the defendant was subsequently given the correct warnings. Since there is evidence that the defendant was read the correct warnings from the "Refusal card" after the incorrect warnings were provided, the defendant's motion to suppress evidence of the defendant's refusal is dismissed.

Additionally, the defendant also argues that as a result of being advised of his Miranda rights, he didn't consent to taking a chemical test. This argument is [*5]without merit as no evidence exists to support the defendant's assertion. Conversely, the record shows that the defendant verbally indicated that he understood his rights after being advised by the trooper and when he subsequently chose make admissions concerning his actions, he voluntarily chose to waive his right to remain silent in an unsolicited fashion. His ability to differentiate between these rights and warnings are clear. Once the defendant commented on his actions, he was again asked to submit to a chemical test and he returned to being silent again. His continuous refusal, evidenced by his conduct, was undoubtedly persistent. People v. Stone, 2001 WL 1568399 NY Co. Ct.), 2001 NY Slip Op. 40361(U). See also Stegman v. Jackson, 233 AD2d 597, 649 NYS2d 529 and Giacone v. Jackson, 267 AD2d 673, 699 NYS2d 587).

Herein constitutes the decision and the order of the Court.

So Ordered.