People v Jorge

[*1] People v Jorge 2010 NY Slip Op 52181(U) [29 Misc 3d 1237(A)] Decided on December 7, 2010 Supreme Court, Bronx County Aarons, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2010
Supreme Court, Bronx County

People of the State of New York,

against

Jhonatan Jorge, Defendant.



31113C-2008



The People were represented by District Attorney Robert Johnson, by Jessica Groppe, (718)838-6502.

The defendant was represented by Anton Prubysh of the Legal Aid Society, (718) 579 3194

Sharon A. M. Aarons, J.

The defendant is charged with one count of Driving While Intoxicated and one count of Driving While Ability Impaired by Alcohol. On October 28, 2010, this court conducted a Dunaway/Johnson/Huntley/Mapp hearing pursuant to Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); People v. Johnson, 134 Misc 2d 474, 477, 511 NYS2d 773 (Crim. Ct. Queens County 1987); People v. Huntley, 15 NY2d 72, 255 NYS2d 838, 204 NE2d 179 (1965); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); and a Refusal Hearing pursuant to VTL 1194 (2)(f). The People called two witnesses, Police officer Alberto Cruz ("PO Cruz"), whose testimony this court credits in part, and Detective William Wilson ("Det. Wilson") whose testimony the court fully credits. The defendant did not present any witnesses. In an oral decision on October 28, 29, 2010, the court found that the arresting officer had probable cause to arrest the defendant and denied defendant's motion to suppress in part and granted it in part. The following constitutes the court's finding of fact and conclusions of law.

FINDINGS OF FACTS

PO Cruz has been employed by the New York City Police Department ("NYPD") for

approximately 14 years and is assigned to the 46th precinct, Bronx county, as a patrol officer. He has made approximately two hundred arrests, twenty involving driving while intoxicated. He received training in the police academy as well as refresher courses on the signs and behavior of intoxicated motorists. To aid in determining whether a motorist is intoxicated, he was trained to observe the operator's eyes, mannerism, attitude, walk, and whether the person had an odor of alcohol. With [*2]regards to the operation of the vehicle he was taught the indicia of intoxication include running red lights, major vehicular accidents, and erratically changing lanes.

On May 18, 2008, PO Cruz was assigned to the 46th precinct in the Bronx, where he worked as a uniformed patrol officer with partner Police officer Juan Marie ("PO Marie"). They worked the midnight to 8 a.m. tour duty responding to radio runs. At about 7:30 a.m. they responded to a radio run of someone possibly pinned inside a vehicle in the vicinity of 89 West Tremont Avenue.

When they arrived in the vicinity of 89 West Tremont Avenue, PO Cruz saw a motor vehicle accident scene. He saw the defendant leaning against the rear of a red Infinity that was pinned against a fence after crashing into two parked cars. The key to the Infinity was in the ignition and the engine was still running. As a part of his investigation to aid in the preparation of the police accident report, PO Cruz asked the defendant if he was the driver of the car, if anyone else was in the vehicle, and whether he needed medical attention. The defendant stated that he was the driver of the car, no one else was in the car, and that his neck was hurting. Bystanders on the street told PO Cruz that the defendant was the driver of the car, he was drunk, and that he crashed onto their car. In response to what the bystanders were saying, the defendant stated in sum and substance that he did not understand why they were so upset because he had insurance to cover the damages.

While speaking to the defendant, PO Cruz observed that his speech was slurred, he had teary, red eyes, he was unsteady on his feet, he smelt of alcohol, and that he was polite. He further observed a bottle of Brugal rum on the floor of the front passenger area. PO Cruz arrested the defendant for driving while intoxicated. He was handcuffed and placed into the back of the police car until he was removed by ambulance to St Barnabas Hospital. PO Cruz made a radio call to have an officer from Highway respond to the hospital.

The plan between the two officers at the scene was that PO Cruz would ride in the ambulance with the defendant and PO Marie would remain at the scene for the tow service which would tow away the Infinity. Before the vehicle was towed, PO Cruz conducted what he described as an inventory search of the vehicle which produced a bottle of Johnnie Walker Red and a box of Zinfandel from the rear of the vehicle. PO later took a picture of the Brugal to preserve as evidence because the bottles were destroyed pursuant to NYPD's policy. While riding in the ambulance with the defendant, PO Cruz observed that the smell odor of alcohol on the defendant got stronger.

At about 8:05 a.m. on May 18, 2008, Det. Wilson, a seventeen year veteran of NYPD, who was assigned to Highway 1 Motorcycle Patrol Unit for six years, received a call from the radio dispatcher instructing him to go to St. Barnabas Hospital to perform a "blood job." Det. Wilson's duties on May 18, 2008, was to maintain the safety of the highways, investigate accidents, write summonses, and perform intoxilyzer tests on motorists who may be driving while under the influence of alcohol or controlled substances. Breathalyzer tests are not done at a hospital; only blood tests.

The defendant was still awaiting treatment when Det. Wilson arrived at the hospital. PO Cruz read him his Miranda warnings from a Miranda checklist he received from Det. Wilson. The defendant's responses indicated that he understood his rights and agreed to answer questions without an attorney present. PO Cruz noted on the Miranda checklist that he read the Miranda rights to the defendant at 9:25.

PO Cruz asked the defendant questions which he read from an interrogation sheet he received from Det. Wilson. In response to questions from PO Cruz, the defendant admitted in pertinent parts [*3]that he drank two cups of Gray Goose and that he had no sleep the night before. PO Cruz wrote on the interrogation sheet that the defendant was interrogated at 9:15.Det. Wilson asked the defendant if he would like to take a blood test by reading from a script. The defendant responded no. Det. Wilson then read a warning from the script advising the defendant that failure to take the test will result in his drivers license being suspended, and again asked him if he would like to take a blood test. Again the defendant said no. At that point Det. Wilson deemed the defendant's response a "refusal" and left the hospital. Det. Wilson also observed that the defendant bore a strong odor of alcohol, had blood shot eyes had slurred speech.

The People served notice pursuant to CPL § 710.3(1)(a) of defendant's statement that he had insurance to cover the damages at the defendant's arraignment, but did not give notice of the statements that he was the driver, no one else was in the car, and that he needed medical attention.

CONCLUSIONS OF LAW

At a suppression hearing, the defendant has the ultimate burden of proving the illegality of the police conduct, however, the People have the initial burden of going forward with evidence of the legality of the police conduct.See People v. Baldwin, 25 NY2d 66, 70, 250 NE2d 62, 302 NYS2d 571 (1969); People v. Berrios, 28 NY2d 361, 367, 270 NE2d 709, 321 NYS2d 884 (1971).

Huntley Hearing

CPL § 710.30(1)(a) states that "[w]henever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion...they must serve the defendant a notice of such intention, specifying the evidence intended to be offered." CPL § 710.30(2) provides that such notice must be served on the defendant within fifteen days after arraignment, however, the court may allow the People to serve late notice upon a showing of "good cause."

The burden is on the People to show beyond a reasonable doubt that the statements the defendant made to PO Cruz were voluntary and not obtained by means of coercion or unfairness. See People v. Huntley, 15 NY2d 72 at 78. In this case, the only on-scene statement the People served notice of was defendant's statement about having insurance in response to comments from the bystanders who had gathered. With regards to that statement only, the court finds that the defendant was not in custody when he made that statement, nor was it in response to any questions from the police, as such, suppression is denied See People v. Huffman, 41 NY2d 29, 34, 359 NE2d353,390 NYS2d 843 (1976); People v. Bennett, 70 NY2d 891, 893, 519 NE2d 289, 524 NYS2d 378 (1987).

The People failed to serve notice of defendant's other on-scene statements by the defendant in response to questions by PO Cruz regarding being injured and being the operator of the car. They now seek to introduce those statements into evidence at trial. CPL § 710.30(3) provides that "[i]n the absence of service of such notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied..."

The People must serve notice of intent to introduce a statement within the time prescribed in the statute, unless good cause is shown for the delay. People v. Boughton, 70 NY2d 854, 517 NE2d 1340, 523 NYS2d 454 (1987). Here, the People failed to serve such notice and now claim that these statements were a part of the same conversation that led the defendant to respond to the [*4]bystanders. The court finds such argument to be without merit.[FN1] The questions by PO Cruz at the scene were investigative and separate from the statements made by the bystanders that caused the defendant to respond about having insurance to cover the damage.

In his moving papers, defendant asked for preclusion of any statements of which he did not receive notice. The defendant did not move for a suppression hearing as to the statements for which he did not receive notice, but rather, he moved for preclusion. In People v. Amparo,73 NY2d 728, 729, 532 NE2d 94, 535 NYS2d 588 (1988), factually similar to this case, the People failed to serve timely notice of defendant's statement, and such failure did not fall within the exception of CPL § 710.30(3). The statement was not admissible against the defendant at trial because he moved for preclusion, not suppression, of the statement. See also People v. Bernier, 73 NY2d 1006, 1008, 539 NE2d 588, 541 NYS2d 760 (1989); People v. Chase, 85 NY2d 493, 650 NE2d 379, 626 NYS2d 721 (1995). Under this set of facts, the court finds the People's argument that by having the suppression hearing the deficiency as to notice was excused to be inapplicable. The People are precluded from offering the unnoticed statement at trial in their case-in-chief.

Defendant's motion to suppress the statement made at the hospital in response to PO Cruz's interrogation is granted. Contrary to PO Cruz's testimony that he gave Miranda warnings to the defendant and then interrogated him, the evidence before the court was that the interrogation occurred at 9:15, and the Miranda warnings were given at 9:25. The court is constrained to accept the evidence before it as no clarifying explanation was elicited from PO Cruz. The court, however, will permit the People to cross-examine the defendant about this statement should he take the stand at trial. See People v. Harris, 25 NY2d 175, 250 NE2d 349, 303 NYS2d 71 (1969).

Mapp Hearing

An object may be lawfully seized by the police under the plain view doctrine exception to the warrant requirement, provided that "three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent [internal citations omitted]." People v. Diaz, 81 NY2d 106, 110, 612 NE2d 298, 595 NYS2d 940 (1993).

Here, PO Cruz responded to the scene of the accident pursuant to a radio run which stated that someone may be pinned in the car, therefore, making observation of the car was a part of his investigation. Seeing the bottle of Brugal rum in plain view was inadvertent. Having observed that the defendant was involved in an accident, had teary, red eyes and slurred speech, PO Cruz had probable cause to believe that the bottle of Brugal rum was an instrumentality of a crime. He further detected the odor of alcohol on the defendant's breath. Hence, suppression is denied as to the bottle of Brugal rum.

The People have not met their burden of establishing a valid inventory search. An inventory search of an impounded motor vehicle is an exception to the warrant requirement. See People v. Galak, 80 NY2d 715, 716, 610 NE2d 362, 594 NYS2d 689 (1993). The purpose of an inventory search is to protect the owner's property while it is in police custody, to protect the police against [*5]claims of lost property, and to protect police personnel and others from dangerous instruments. People v. Galak, 80 NY2d at 718. An inventory search must be conducted according to an established familiar routine procedure "clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably and do not become little more than an excuse for general rummaging to discover incriminating evidence." Id., at 719. The discovery of incriminating evidence should be a consequence of an inventory search, not its purpose. See People v. Johnson, 1 NY3d 252, 256, 803 NE2d 385, 771 NYS2d 64 (2003).

PO Cruz's statement that the bottle of Johnnie Walker Red and the box of Zinfandel were recovered pursuant to an inventory search is insufficient to satisfy the People's burden of establishing a valid inventory search. The People offered no evidence that the NYPD has a policy regarding inventory searches, and that PO Cruz conducted the search in compliance with that established procedure. Id.; People v. Gomez, 13 NY3d 6, 11, 884 NYS2d 339, (2009). Therefore, the bottle of Johnnie Walker Red and the box of Zinfandel are suppressed.

Refusal Hearing

VTL 1194(2)(a) provides that "[a]ny 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..." Pursuant to VTL 1194(2)(b) a person refuses to take the chemical test if after he/she was requested to take the test and refuses, he/she refuses a second time after being advised of the consequence of not taking the test. Evidence of such a refusal is admissible at trial, proceeding or hearing, "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." See VTL 1194(2)(f).

In determining whether the defendant's refusal was persistent, the court looks to the conduct of the defendant. See Geary v. Commissioner of Motor Vehicles, 92 AD2d 38, 41, 459 NYS2d 494 (3rd Dept. 1983), aff'd, 59 NY2d 950, 453 NE2d 533, 466 NYS2d 304 (1983). Det. Wilson requested the defendant to submit to a chemical test and he refused. He refused again after being advised in clear and unequivocal language of the consequence of not taking the test. See People v. Cragg, 71 NY2d 926, 524 NE2d 128, 528 NYS2d 807 (1988). The court finds that the defendant was persistent in his refusal to submit to the chemical test. See People v. Adler, 145 AD2d 943, 536 NYS2d 315 (4th Dept. 1988), lv. denied, 73 NY2d 919, 536 NE2d 633, 539 NYS2d 304 (1989); People v. Bratcher, 165 AD2d 906, 560 NYS2d 516 (3rd Dept. 1990), lv. denied, 77 NY2d 958, 573 NE2d 580, 570 NYS2d 492 (1991). Evidence of defendant's refusal to submit to the blood test is admissible at trial, and the motion to suppress is denied.

911 Tape

The defendant moves in limine to preclude the People from offering the 911 tape recording of various callers reporting the accident. The excited utterance exception to the hearsay rule permits an out-of -court statement to be admitted in court when "at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful." People v. Edwards, 47 NY2d 493, 497, 392 NE2d 1229, 419 NYS2d 45 (1979). [*6]See also People v. Johnson, 1 NY3d 302, 306, 804 NE2d 402, 772 NYS2d 238 (2003), habeas corpus denied, 2006 U.S. Dist. LEXIS 2457 (S.D.NY Jan. 20, 2006). Among the factors the court must consider in determining whether a statement qualifies as an excited utterance are the nature of the startling event and the time lapse between the occurrence and the statement. People v. Edwards, 47 NY2d 493 at 497. The loud bang caused by the accident, as described by one of the 911 callers, was the startling event that caused the callers to call 911 to report that there had been an accident. The calls were spontaneous and not the product of deliberate reflective suggesting untruthfulness. The People are precluded from introducing the opinion of one of the caller that the defendant was drunk and that part of the 911 call will be redacted.

The admission of the 911 calls into evidence did not violate the defendant's right to confront witnesses under the Sixth Amendment of the Federal Constitution as the statements to the 911 operators were not testimonial. See Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)("A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to "establis[h] or prov[e]" some past fact, but to describe current circumstances requiring police assistance."); People v. Nieves-Andino, 9 NY3d 12, 15, 872 NE2d 1188, 840 NYS2d 882, (2007), habeas corpus denied, 2010 U.S. Dist. LEXIS 40418 (S.D.NY Apr. 20, 2010)("Only statements that are testimonial make the absent declarant a "witness" within the meaning of the Confrontation Clause."); People v. Bradley, 8 NY3d 124, 862 NE2d 79, 830 NYS2d 1, (2006)("Because Dixon's statement was made when the officer could reasonably have assumed, and apparently did assume, that he had an emergency to deal with, her statement was not testimonial under Crawford and Davis.").

Accordingly, defendant's motion to suppress pursuant to People v. Huntley is granted as to the statement made to PO Cruz at the hospital, but is denied at to the statement at the scene regarding having insurance to cover the damages. The People are precluded from using in their case-in-chief the statements for which they failed to serve notice pursuant to CPL § 710.30(1)(2). The defendant's motion to suppress pursuant to People v. Mapp is granted as to the bottle of Johnnie Walker Red and box of Zinfandel that were recovered from the rear of the vehicle, but denied as to the bottle of Brugal rum. The People are permitted to offer evidence of defendant's refusal to consent to the blood test.

The foregoing constitutes the Decision and Order of the court.

Dated:December 7, 2010

_____________________________

Sharon A. M. Aarons, J.S.C. [*7] Footnotes

Footnote 1:Initially the court did not suppress the statements of which notice was not given, but after further argument the court reconsidered and made the above ruling.