People v Court

[*1] People v Court 2010 NY Slip Op 50409(U) [26 Misc 3d 1235(A)] Decided on March 8, 2010 Suffolk Dist Ct, First District Filiberto, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2010
Suffolk Dist Ct, First District

The People of the State of New York

against

Matthew S. Court, Defendant.



2007SU052052



Thomas Spota, Esq.

District Attorney

400 Carleton Ave

Central Islip, NY 11722

Anthony LaPinta, Esq.

35 Arkay Drive, Suite 200

Hauppauge, NY 11788

Patricia M. Filiberto, J.

The defendant is charged with Driving While Intoxicated in violation of VTL section 1192.3. Defendant moved to suppress evidence of his refusal to submit to a breathalyzer test and statements he allegedly made to the police officer.

A hearing was held to determine whether defendant's alleged statements were involuntarily made within the meaning of CPL section 60.45 and whether evidence of a refusal to submit to a breathalyzer test offered more than two hours after arrest may be admitted at trial as some evidence of consciousness of guilt.

The witnesses at the hearing were Sergeant Michael A. Crowley and Police Officer John C. Mercurio, both assigned to the Third Precinct, Suffolk County Police Department. The Court finds their testimony to be credible and makes the following findings of fact:

At approximately 4:23am on September 20, 2007 on Spur Drive North and Rte. 111 in Brentwood, Suffolk County, NY, Sgt. Crowley saw that a 1988 Nissan had crashed into a utility pole and damaged a sign. Sgt. Crowley stopped his marked police vehicle, called for assistance, and got out of the police car. He observed a man walking toward the police car. When asked if the car was his, the man indicated it was. When asked what happened, the man said to Sgt. Crowley, "I lost control. I guess I was going too fast." When asked if he had consumed alcoholic beverages, the man said, "I had a few drinks." At the time the man made the [*2]statements to Sgt. Crowley, he was not under arrest, not in handcuffs, the sergeant did not have his gun drawn, and did not threaten or make any promises to the man.

The man produced identification - Matthew S. Court. The sergeant observed that the man staggered when he approached the officer, his eyes were bloodshot and glassy, he had "thick tongued" speech and a very strong odor of alcoholic beverage on his breath. Sgt. Crowley did

not ask the man to perform any field sobriety tests and did not have a portable breath screening device with him.

P.O. Mercurio arrived at the scene of this one-car accident shortly after 4:23am and observed the Nissan against the pole and that a sign was knocked down. Sgt. Crowley relayed to P.O. Mercurio his belief that the man was the driver of the Nissan and that he was intoxicated. Sgt. Crowley returned to the Third Precinct.

The driver of the Nissan produced identification for P.O. Mercurio. P.O. Mercurio observed that the man was unsteady on his feet, his eyes were bloodshot and glassy, he had slurred speech, and an odor of alcohol on his breath. The officer did not ask the man to perform any field sobriety tests because they were in a dangerous location at the roadside. The officer arrested the defendant, Matthew S. Court, at approximately 4:33am for Driving While Intoxicated and transported him to the Third Precinct.

Officer Mercurio read the chemical test request to the defendant. The defendant did not ask the officer to repeat the chemical test request and did not ask the officer to read more slowly. The defendant refused to take the breathalyzer test at 6:35am and again refused at 6:50am. The defendant wrote his initials in the appropriate space on the chemical test request portion of the Alcohol/Drug Influence Report indicating his refusal.

VOLUNTARINESS OF STATEMENTS

The People have shown beyond a reasonable doubt that the police encounter was not constitutionally or factually coercive. The evidence at the hearing did not suggest that defendant's statements at the accident scene were obtained by means of coercion or unfairness. The defendant was not in handcuffs and not under arrest. Sgt. Crowley did not have his gun drawn and did not threaten or make any promises to the defendant. People v Huntley, 15 NY2d 72,78, 255 NYS2d 838 (1965). Moreover, a police officer conducting an investigation at the

scene of a traffic accident is not required to administer Miranda warnings where the investigation has not yet reached the custodial stage. See, People v Dougal, 266 A.D2d 574 (3rd Dept. 1999), lv. den. 94 NY2d 879, 705 NYS2d 11 (2000); People v Aia, 105 AD2d 592, 482 NYS2d 56 (3rd Dept. 1984); People v Atwood, 2A.D.3rd 1331, 768 NYS2d 918 (4th Dept. 2003), lv. den. 3 NY3d 636, 782 NYS2d 407 (2004). Temporary detentions for the investigation of traffic-related matters are generally non-custodial in nature and do not require the administration of Miranda warnings. See, People v Mackenzie, 9 Misc 3d 129(A), 808 NYS2d 919, 2005 NY Slip Op 51535(U) (App. [*3]Term, 9th & 10th Jud. Dists. 2005), lv. den. 5 NY3d 807, 803 NYS2d 36 (2005); People v Myers, 1 AD3d 382, 383, 766 NYS2d 581 (2d Dept. 2003), lv. den. 1 NY3d 631, 777 NYS2d 30 (2004); see also, People v Bennett, 70 NY2d 891, 524 NYS2d 378 (1987). The applicable standard for determining whether an interrogation is or is not custodial is whether a reasonable person, innocent of any crime, would have believed he was free to leave had he been in defendant's position. See, People v Yukl, 25 NY2d 585, 589, 307

NYS2d 857 (1969), cert. den. 400 U.S. 851, 91 S. Ct. 78; People v Fenti, 175 AD2d 598, 572 NYS2d 979 (4th Dept. 1999). The issue of custody is not determined by the subjective beliefsof the individual defendant or of the police officer, except to the extent that his or her belief is communicated to the defendant. See, People v Joy, 114 AD2d 517, 494 NYS2d 420 (2d Dept. 1985); People v Fenti, supra . Sgt. Crowley's questioning of the defendant at the scene of the accident occurred in a non-custodial setting and was investigatory in nature. Thus the officer was not required to administer Miranda warnings before conducting the initial investigation.

See, People v Mackenzie, supra ; People v Parulski, 277 AD2d 907, 716 NYS2d 260 (4th Dept. 2000). Thedefendant's admission of operation ("I lost control. I guess I was going too fast.") and his admission that he had consumed alcoholic beverages ("I had a few drinks") were made voluntarily pursuant to the officers' investigation of the one-car accident and were not obtained in violation of his Miranda rights and are not subject to suppression at trial.

Other statements made by the defendant to the police that are contained in the C.P.L. 710.30 notice form were not made part of this hearing and, therefore, will not be admissible at trial.

CHEMICAL TEST REFUSAL

Vehicle and Traffic Law, section 1194, provides, in pertinent part:

2. Chemical tests. (a) When authorized. Any person who operates a motor vehicle in this state, shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine, or saliva or, with respect to a chemical test of blood, at the direction of a police officer:

(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for any such violation; ..., (b) Report of refusal. (1) If: (A) such person having been placed under arrest ; ... and having thereafter been requested to submit to such chemical test and having been informed that the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked, ..., shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested or detained, refuses to submit to such chemical test or any portion thereof, ..., the test shall not be [*4]given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made.

(f) Evidence. Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the

provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.

The testimony at the hearing demonstrates that the defendant persisted in his refusal to take the breathalyzer test after being given clear and unequivocal warnings of the consequences. The fact that the refusal occurred more than two hours after defendant was arrested does not

require suppression of the refusal. While there is a split of authority on this issue, the more persuasive cases hold that otherwise-admissible refusals should not be suppressed solely because they have occurred more than two hours following a defendant's arrest. People v Torres, 5 Misc 3d 1005A, 798 NYS2d 712, 2004WL2339812 (Crim. Ct. Queens Co. 2004); People v Ward, 176 Misc 2d 398, 673 NYS2d 297 (Sup. Ct. Richmond Co. 1998); see also People v Burns, 13 Misc 3d 1208A, 824 NYS2d 756, 2006WL2660913 (Dist. Ct. Nassau Co. 2006). But see, People v Morris, 8 Misc 3d 360, 793 NYS2d 754 (Crim. Ct. Richmond Co. 2005); People v Kenny, 9 Misc 3d 1104A, 806 NYS2d 447, 2005WL2148893 (Crim. Ct. Richmond Co. 2005). The motion to suppress the refusal to submit to a chemical test is denied.

In closing argument, defense counsel asserted that the People have not shown good cause for a delay of more than two hours from the time of arrest before the request to take a chemical test was given to the defendant. The Court finds that no requirement of good cause shown, either in the statute or in persuasive case law, must be proven before admission at trial of evidence of a refusal made more than two hours after arrest. Indeed, VTL section 1194(2)(f), which provides for the evidentiary use of a defendant's refusal, makes no mention of a time limitation, two hours or otherwise. Moreover, evidence of a refusal made more than two hours after arrest does not, in this Court's mind, raise the same question of evidentiary probativeness and reliability that the results of a chemical test given more than two hours after arrest may raise. If a voluntary, knowing and persistent refusal made within two hours of arrest is admissible at trial, this Court finds no reason that a similarly voluntary, knowing and persistent refusal made more than two

hours after arrest should not also be admissible at trial as some evidence of consciousness of guilt.

Accordingly, defendant's motion to suppress is denied in all respects. These findings of fact and conclusions of law constitute the written decision and order of the Court.

DATED: ___________________________________

J. D. C.