People v Carroll

[*1] People v Carroll 2010 NY Slip Op 51277(U) [28 Misc 3d 1211(A)] Decided on July 20, 2010 Supreme Court, Bronx County Duffy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 20, 2010
Supreme Court, Bronx County

The People of the State of New York,

against

Martin Carroll, Defendant.



42130-2009



SALVATORE PASZYNSKY, ESQ.

110 Wall Street, 11th Floor

New York, NY 10005

Attorney for Defendant

DORI MILNER, ESQ.

Assistant District Attorney

Criminal Court Bureau

265 East 161st Street

Bronx, New York 10451

Colleen D. Duffy, J.

Defendant Martin Carroll was charged with one misdemeanor count of Operating a Motor Vehicle While Under the Influence of Alcohol, VTL 1192(3), and a violation of Operating a Motor Vehicle While Under the Influence of Alcohol, VTL 1192(1). On or about June 28, 2009, Defendant filed an omnibus motion seeking, among other things, to: (1) suppress the arrest on the basis that the police did not have probable cause to place Defendant under arrest; (2) suppress statements made by Defendant to police; (3) suppress Defendant's refusal to submit to a chemical test; and (4) prevent the People from introducing any previous criminal convictions or bad acts of Defendant if he were to testify. The People filed an opposition to Defendant's motion on or about August 26, 2009.[FN1]

On August 12, 2009, the Honorable Nicholas Iacovetta granted the motion to the extent that he granted a Huntley and Dunaway hearing together with a chemical test refusal hearing. Judge Iacovetta also granted Defendant's discovery requests and noted that the People have a continuing obligation to supply all Brady material to Defendant.

On June 21, the Court commenced the combined Huntley-Dunaway-refusal hearing. Prior to the commencement of the hearing, Defendant notified the Court that the People had not provided Defendant copies of any SPRINT reports, the Miranda [*2]form purportedly used by the police, and notations from the field tests conducted by the police. The hearing did not conclude on June 21 and was continued and concluded on June 23, 2010.

At the hearing, Police Officer Jeffrey Gaston, Shield No. 22200, of the 45th Precinct testified. Defendant called no witnesses. At the conclusion of the hearing, Defendant contended that the People failed to comply with their Rosario obligations by failing to provide certain discovery and requested that the testimony of Officer Gaston be precluded at trial as a sanction for this alleged Rosario obligation. As set forth further herein, the Court denied Defendant's application in large part but held that the People's failure to preserve and provide to Defendant the Miranda warnings form that the police purported to have read to Defendant constituted a Rosario violation and that appropriate sanctions were warranted. Accordingly, as noted further herein, the Court imputes a negative inference to the People with respect to the issue of Miranda warnings having been administered to Defendant as a sanction for their failure to preserve the Miranda sheet and turn it over to Defendant.

After the hearing was completed, Defendant pleaded guilty to Operating a Motor Vehicle While Under the Influence of Alcohol, VTL 1192(3), in exchange for a sentence promise by the Court of a conditional discharge, the condition of which is payment by Defendant of a $1,000.00 fine and all applicable surcharges, and Defendant's satisfactory completion of a drunk driving program.

FINDINGS OF FACT

Police Officer Gaston credibly testified that, on the night of June 28, 2009, at approximately 2:20 a.m., he observed Defendant's car make an illegal right turn at a red traffic light. Officer Gaston testified that he then turned on his flashing lights and drove his patrol car behind Defendant's vehicle, and Defendant pulled over to the curb. Officer Gaston further testified that when he asked Defendant for his license and registration, he immediately smelled alcohol emanating from Defendant, and that he observed Defendant's speech to be slurred, his eyes to be watery and bloodshot, and his appearance to be disheveled. Officer Gaston testified that he asked Defendant where he was coming from, and that Defendant replied that he was coming from the American Legion. Officer Gaston also testified that Defendant spontaneously repeated numerous times that he was "breaking up a fight at the American Legion." Officer Gaston also testified that he did not remember using his radio after he made the car stop of Defendant.

Officer Gaston testified that, thereafter, he asked Defendant to exit the vehicle, and that Defendant lost his balance as he did so, requiring Officer Gaston's assistance to stand up. Officer Gaston testified that, once Defendant was out of the vehicle, he could not keep his balance, was swaying, and continually made comments to the officers. When asked if he had anything to drink, Defendant said "Yes," Officer Gaston testified.

Defendant was then asked to complete a number of field sobriety tests, and Officer Gaston testified that he observed that Defendant was not able to stand straight or to keep his balance and that when he put his head back as part of the test, he stumbled backwards. Officer Gaston testified that he then concluded that Defendant [*3]was under the influence of alcohol and placed Defendant under arrest. Officer Gaston testified that he did not take any notes of the field test results.

Officer Gaston then transported Defendant to the 45th Precinct Intoxicated Driver Testing Unit ("I.D.T.U."). The proceedings in the I.D.T.U. with Defendant were videotaped and the recording was admitted into evidence. See Exhibit 1. The videotape shows that Defendant was asked to submit to a chemical test, and Defendant refused. Defendant was then read a "refusal warning" to inform him of the consequences of his refusal to take the chemical test and, after the warning was read, was asked once more if he would submit to the test, and again refused. Officer Gaston was present during that procedure and testified as to the events - which testimony matched the videotape depiction.

Officer Gaston testified that thereafter he read Miranda warnings to the Defendant from a Miranda sheet which Officer Gaston said he had later turned over to the District Attorney's office. The People failed to provide that Miranda sheet to Defendant and provided no explanation as to why they no longer had the document. Officer Gaston could not testify as to the specific warnings that he had read to Defendant - even after having his recollection refreshed by reviewing a standard Miranda sheet purportedly utilized by the police. Officer Gaston testified that, thereafter, he asked Defendant the questions from the "Intoxicated Driver Examination" form used by the I.D.T.U., which was admitted into evidence as Exhibit 2.

CONCLUSIONS OF LAW

1.Probable Cause Existed for Defendant's Arrest

Upon consideration of the evidence and testimony presented, the Court finds probable cause existed to arrest Defendant. Officer Gaston credibly testified that he observed Defendant make an illegal right turn through a steady red traffic light. This gave the officers justification to stop Defendant's car. People v. Ingle, 36 NY2d 413, 414-15 (1975)(a violation of the Vehicle and Traffic Law is a legitimate reason for police to justifiably stop a motorist). Upon approaching the car, Officer Gaston smelled alcohol and noticed that Defendant had blurry eyes and looked disheveled. These facts gave the police officers reasonable suspicion to investigate further. People v. DeBour, 40 NY2d 210, 218 (1976); People v. Sawinski, 246 AD2d 689, 690 (3rd Dept. 1981), app. denied, 91 NY2d 930 (1998). Officer Gaston testified that Defendant almost fell when he exited the vehicle, and needed the officer's support to stand up. The officers then conducted a field sobriety test and observed that Defendant was not able to stand straight or to keep his balance and that when he put his head back as part of the test, he stumbled backwards. These facts constitute probable cause for the officers to make an arrest for Operating a Motor Vehicle While Under the Influence of Alcohol. People v. Bigelow, 66 NY2d 417, 423 (1985); People v. Farrell, 89 AD2d 987, 988 (2nd Dept. 1982) (a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of alcohol); People v. Blajeski, 125 AD2d 582, 582-83 (2nd Dept. 1986) (bloodshot eyes, slurred speech and odor of alcohol on breath provided probable cause to arrest); People v. McCarthy, 135 AD2d 1113, 1114 (4th Dept. 1987) (bloodshot eyes, slurred speech and strong odor of alcohol established probable cause). Therefore, the portion of Defendant's motion [*4]which seeks suppression of evidence due to lack of probable cause to make an arrest is denied.

2.The People's Failure to Give Defendant the Miranda

Warning Sheet Constitutes a Rosario Violation

Turning to the issue of the Miranda sheet that was lost by the People, the Court finds that the People's failure to turn over the Miranda sheet about which Officer Gaston testified constitutes a Rosario violation.

Officer Gaston testified that he read Miranda warnings to Defendant using a Miranda sheet, which he turned over to the People. That sheet was lost, according to the People, and was not produced to Defendant. Loss of this important evidence is a Rosario violation, which prejudices Defendant, denying him the ability to conduct cross-examination.People v. Dunn, 185 AD2d 54, 57-58 (1st Dept. 1993) (destruction of scratch notes impeded cross-examination; sanction appropriate); People v. Gamble, 172 AD2d 687, 687 (2nd Dept. 1991).

The Court further finds that the appropriate sanction for this violation is to infer a negative inference as to whether and in what manner such warnings were given. People v. Wallace, 76 NY2d 953, 955 (1990)(abuse of discretion to decline to impose sanction for People's failure to preserve Rosario material); People v. Watkins, 189 AD2d 623, 624 (1st Dept.), app. denied, 81 NY2d 978 (1993).

3.Certain Statements Defendant made at I.D.T.U.

Suppressed as Violating Defendant's Miranda Rights

In his motion, Defendant sought to suppress certain statements attributed to him by the police the night of his arrest statements Defendant allegedly made at the time the officers first stopped Defendant's car, and statements Defendant allegedly made more than an hour later to Officer Gaston, at approximately 3:20 a.m. inside the 45th Precinct. The People provided Defendant notice, pursuant to CPL 710.30, as to Defendant's statements.

With respect to the statements made at the I.D.T.U., the People contended that, prior to making these statements, Defendant had waived his Miranda rights. However, the People failed to establish that the Defendant knowingly and voluntarily waived his Miranda rights. People v. Davis, 75 NY2d 517, 523 (1990)(the People are charged with burden of proving a knowing, intelligent and voluntary waiver); People v. Harris, 79 AD2d 615 (2nd Dept. 1980), app. denied, 53 NY2d 708 (1981); People v. Curtron M., 49 AD2d 318, 318 (1st Dept.), app. denied, 10 NY3d 861 (2008). Here, the People's sole witness, Officer Gaston, testified that he read Miranda warnings to Defendant using the Miranda sheet but Officer Gaston was unable to testify as to the specific Miranda warnings he allegedly gave Defendant. The officer had no independent recollection of the questions contained on the form that he stated that he read to Defendant. While Officer Gaston stated that Defendant affirmatively answered the questions, he was unable to tell the Court what those six questions were, except for two questions which he was finally able to recall after having refreshed his recollection by reviewing a standard Miranda sheet allegedly used by the police. Officer Gaston's inability to [*5]affirmatively recall the Miranda warnings he claimed to have given Defendant fails to provide a sufficient basis to establish that the Defendant knowingly and voluntarily waived his constitutional rights when he responded to police questioning. People v. Mercado, 112 Misc 2d 368, 375 (Sup. Ct., Queens Co. 1982)(express waiver not required, but must be evidence that defendant knowingly and voluntarily waived his rights), aff'd on other grounds, 68 NY2d 874 (1986). Coupled with the negative inference imputed by the People's failure to produce the Miranda sheet, the Court finds that the People have failed to establish that Defendant waived his Miranda rights.Therefore, Defendant's motion to suppress any statements made in response to questions to him by Officer Gaston at I.D.T.U. with respect to the Intoxicated Driver Examination is granted.

4.Statements Made at Time of Car Stop Admissible as Responses

to Investigative Inquiry and as Spontaneous Utterances

With respect to the statements made by Defendant at the time Defendant's car was pulled over, the Court finds those statements to be admissible. As an initial matter, Defendant contends that these statements should be precluded because they were not properly noticed. See CPL 710.30. Although two statements made at different times and places to public servants must be separately noticed to satisfy the requirements of CPL 710.30, (People v. Olds, 140 Misc 2d 458, 463 (Sup. Ct., Bronx Co. 1988); People v. Lopez, 84 NY2d 425, 428 (1994)(People required to inform defendant of "time and place" the oral and written statements were made and "sum and substance" of those statements)), the People contend that two such separate 710.30 notices were orally provided to Defendant at Defendant's arraignment, one for the statements made at the scene and the other for statements made later at the Precinct. People v. Ciola, 136 AD2d at 558 (representation by prosecutor sufficient to establish that fact); People v. Poole, 48 NY2d at 149 (representation of prosecutor, as officer of the court, sufficient to determine threshold issue of whether or not any prior statements of witness exist). Accordingly, Defendant's motion to preclude the statements at the scene is denied.

The Court finds that statements made at the scene by Defendant - Defendant's responses to Officer Gaston's inquiry to Defendant as to whether he had been drinking and his responses to Officer Gaston's questions regarding where Defendant had been coming from - are responses to proper investigative inquiry and therefore should not be suppressed. At that time, Defendant was not under arrest and Officer Gaston's questions were wholly within the limits of permissible non-custodial inquiry. People v. Huffman, 41 NY2d 29, 32-33 (1976)(questions asked on street to investigate a crime are the kind of questioning which has uniformly been held not to require the Miranda warnings); People v. McKenzie, 183 AD2d 631, 584 NYS2d 13, 15 (1st Dept. 1992). Thus, Defendant's responses to the officer's inquiry - "Yes" to the question about

whether he had been drinking and "the American Legion" in response to the question about where he was coming from - are admissible.

Officer Gaston testified that, after Defendant was asked those two questions, Defendant spontaneously volunteered additional information, stating that he was breaking up a fight at the American Legion. This statement was spontaneous and not made as the result of police questioning or conduct. As such, Miranda warnings were [*6]not required and the statement is admissible. People v. Gamble, 129 AD2d 470, 475-76 (1st Dept. 1987); People v. Huffman, 61 NY2d 795, 797 (1984).

For the foregoing reasons, Defendant's motion to suppress statements is granted with respect to the statements made at the 45th Precinct but denied with respect to statements made at the time his car was stopped.

5.The People Satisfied Their Remaining Discovery Obligations

The Defendant contends that other documents - a tape or transcript of a radio call by the police, and field test notes — also were not produced. The People contend no such documents or notes exist. Officer Gaston testified that he did not recall using his radio when he pulled over Defendant. Without a radio call, no SPRINT report would exist to be produced.

Officer Gaston also credibly testified that he took no notes of Defendant's performance on the field sobriety tests. The People represented to the Court that no such document existed. People v. Ciola, 136 AD2d 557, 558 (2nd Dept.1988) (documents demanded by defendant not produced; representation by prosecutor that documents did not exist sufficient to establish nonexistence); People v. Poole, 48 NY2d at 149. Where there is no document to be produced, its nonproduction cannot be a Rosario violation. People v. Rodriguez, 270 AD2d 505, 505 (2nd Dept.), app. denied, 95 NY2d 802 (2000). As the People are under no obligation to provide a non-existing document, Defendant's motion for other sanctions - including dismissal of the action - is denied.

6.Defendant Refused to take Chemical Test

After Receiving Warning of Consequences

As set forth below, Defendant's motion to suppress his refusal to take the chemical test - the Breathalyzer - also is denied.

As an initial matter, the Court notes that the request that Defendant take the chemical test was valid. VTL 1194(2)(a); People v. Moselle, 57 NY2d 292, 296 (1982); Matter of Gagliardi v. Department of Motor Vehicles, 144 AD2d 882, 883 (3rd Dept. 1988)(for the testing strictures of VTL 1194 to come into play, there must have been a lawful arrest for driving while intoxicated).

The Court also finds that, here, Defendant was given the refusal warnings as to the consequences of Defendant's failure to take the test in "clear and unequivocal language." VTL 1194(2)(f). Officer Gaston credibly testified that Defendant initially refused to take the test, was given the warnings, which were read to Defendant, and then he again refused the chemical test. In addition, the videotape shows that Defendant was informed in clear and unequivocal language. See Exhibit 2. Accordingly, Defendant's motion to suppress his refusal to take the chemical test is denied. See VTL 1194(2)(f); People v. Cousar, 226 AD2d 740, 741 (2nd Dept.), app. denied, 88 NY2d 983 (1996); People v. Bratcher, 165 AD2d 906, 560 NYS2d 516, 517 (3rd Dept. 1990), app. denied, 77 NY2d 958 (1991).

The Court did not reach the issue of Sandoval as Defendant pleaded guilty before any such hearing.

The following papers were considered by the Court in deciding the motion: Notice of Omnibus Motion and Affirmation of Salvatore Paszynsky, attorney for [*7]Defendant, in Support of Motion, dated June 28, 2009; Affirmation in Opposition by Kelly Ann Holohan, Assistant District Attorney, dated August 26, 2009.

Dated: Bronx, New York

July 20, 2010

E N T E R:

_______________________________

COLLEEN D. DUFFY

Supreme Court Justice

Distribution:

Footnotes

Footnote 1: Neither the Notice of Motion and Affirmation of Salvatore Paszynsky, Esq. in Support of the Motion nor the People's Affirmation in Opposition in the Court's file are date-stamped to indicate that they were filed with the Clerk's Office.