People v Butler

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[*1] People v Butler 2013 NY Slip Op 50735(U) Decided on May 7, 2013 Criminal Court Of The City Of New York, Bronx County Rodriguez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2013
Criminal Court of the City of New York, Bronx County

The People of the State of New York,


Rayfus Butler, Defendant.


Julio Rodriguez, J.

Defendant is charged with Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree in violation of Penal Law Section 270.25, Reckless Driving in violation of Vehicle and Traffic Law Section 1212, and Operating a Motor Vehicle While Under the Influence of Alcohol in violation of Vehicle and Traffic Law Sections 1192(3), 1192(2), and 1192(1). The defendant moved to suppress statements and all "fruits of the poisonous tree" obtained from his arrest, including evidence of the Breathalyzer examination, the results of the test, the videotape of the examination and all observations of the defendant, including identification of the defendant as the operator of a motor vehicle. Additionally, the defendant moved to suppress the Breathalyzer results because the breath test was not administered within the requisite two hours of arrest. The defendant was granted a Johnson/Huntley/Dunaway hearing.

The pre-trial suppression hearing was conducted before the Honorable David Stadtmauer, Judicial Hearing Officer ("JHO Stadtmauer"), on December 17 and 18, 2012. The matter was then forwarded to me for decision and order on the hearing.

I reviewed the entire record including the hearing transcript, the IDTU tape, JHO Stadtmauer's recommended findings of fact and conclusions of law, and the post-hearing memorandums of law submitted by the parties. The findings of fact and conclusions of law recommended by JHO Stadtmauer are hereby adopted, as modified. For the reasons set forth below, defendant's motion is denied.

The People called one witness, Police Officer Sergio Auza ("Officer Auza") assigned to the 42nd Precinct. The Court finds Officer Auza credible and credits his testimony. The defendant did not call any witnesses.

Findings of Fact

Officer Auza has been a police officer for six years. See Tr. of Dec. 18, 2012 at 4. On August 27, 2010, at approximately 2:40 a.m., Officer Auza was on patrol, in uniform in a marked car. Id. at 5-6. He was on East 169th Street near Boston Road, in Bronx County, waiting for the traffic light to turn green. Id. at 7. When the traffic light turned green, the car that was directly in front of Officer Auza started to go through the intersection but stopped abruptly when a white van traveling on Boston Road went through the intersection. Id. Officer Auza turned on his [*2]turret lights and attempted to stop the white van. Id. at 8. After making several turns and going through approximately five steady red lights, a stop sign, and nearly striking a pedestrian who was forced to jump out of the van's path at East 168th Street and Franklin, the van eventually stopped on Boston Road between East 168th and East 167th Streets. Id. at 8-9.

Officer Auza approached the driver's side and ordered the driver to step out of the van. Id. at 10-11. The defendant opened the driver's door and exited the van. Id. at 11. Officer Auza observed that the defendant was unsteady on his feet and that his pants were off of his waist and around his ankles. Id. at 11-12. As the officer got closer he noticed that the defendant had glassy eyes and smelled of alcohol. Id. at 12. Officer Auza instructed the defendant to come towards him. Id. The defendant asked why he was being arrested. Id. Officer Auza arrested the defendant, at approximately 2:44 a.m., and took him to the 45th Precinct to conduct a Breathalyzer examination. Id. at 14. The officer did not perform any field sobriety tests.

At the 45th Precinct, Officer Jarvis from Highway One conducted a Breathalyzer examination. Id. at 14. The procedure was videotaped, and the videotape was admitted into evidence at the hearing. Id. at 16. The procedure lasted approximately 29 minutes and 38 seconds. See People's Ex. 2. The videotape shows the defendant speaking incessantly for nearly thirty (30) minutes, often raising his voice and cursing. Throughout the procedure, the defendant persistently and repeatedly asked why he was arrested and why he was not administered a field sobriety test at the location of his "detainment".

At approximately 3:50 a.m., the defendant agreed to take the chemical breath test and provided a breath sample. The test results revealed defendant to have a .157 percent blood alcohol content.

After conducting the test, Officer Auza escorted the defendant to the 42nd Precinct for processing. En route to the 42nd Precinct, the defendant, without being questioned, said in sum and substance that he could not have been drunk because he only had two shots and a beer two hours ago. See Tr. of Dec. 18, 2012 at 21.


On the Mapp/Dunaway/Johnson portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police officers acted lawfully, and defendant had the burden of proving by a preponderance of the evidence that the police officers acted illegally. See People v. Chipp, 75 NY2d 327, 335 (1990); People v. DiStefano, 38 NY2d 640, 652 (1976). As to the Huntley hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statements were voluntary. See People v. Huntley, 15 NY2d 72, 78 (1965).

The People met their burden of going forward with credible evidence tending to show that the police officers acted lawfully. Officer Auza personally observed the defendant violate several vehicle and traffic laws by going through approximately five steady red lights, a stop sign, and nearly striking a pedestrian who was forced to jump out of the defendant's van's path. See People v. Ingle, 36 NY2d 413 (1975); People v. Robinson, 97 NY2d 341 (2001). When the defendant finally pulled over and got out of the car, Officer Auza observed that he was unsteady on his feet, had glassy eyes, and smelled of alcohol. The evidence at the hearing established that Officer Auza had reasonable suspicion to stop and ample probable cause to arrest the defendant. [*3]Accordingly, none of the evidence obtained in this case is subject to suppression as the fruits of an illegal arrest.

The defendant argues that his right to counsel was violated during the Breathalyzer procedure. Recently, the Appellate Division, Second Department summarized the law in this area in People v. Washington, 2013 NY Slip Op. 02600, 2013 WL 1632694 at * 3 (2nd Dept. Apr. 17, 2013):

Notably, a motorist does not have a constitutional right to refuse to consent to a chemical breath test. Moreover, the statutory right to refuse a test may be waived without an attorney's assistance. Further, Vehicle and Traffic Law § 1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing. Nevertheless, if a motorist is arrested for driving while intoxicated, the Court of Appeals [in People v. Gursey, 22 NY2d 224] has recognized a limited right to counsel associated with the criminal proceeding.

Possessing a limited right to counsel means that where a defendant is arrested for driving while under the influence of alcohol and asks to contact an attorney before responding to a request to take a chemical test, the police may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand. If such a request is made, and it is feasible for the police to allow a defendant to attempt to reach counsel without unduly delaying administration of the chemical test, a defendant should be afforded such an opportunity. The request to speak with an attorney must be specific; generalized requests for an attorney are insufficient to invoke the limited or qualified right. Furthermore, the right to consult with an attorney is not absolute. If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel. Where there has been a violation of the limited right to counsel recognized in Gursey, any resulting evidence may be suppressed at the subsequent criminal trial.

(Citations and quotation marks omitted; italics in original; bracketed material added.)

The issue in the instant case is whether the defendant made a specific request to speak with an attorney during the course of the Breathalyzer procedure. To decide this issue a close inspection of the Breathalyzer videotape is required. Below are the relevant segments.

The videotape spans approximately 29 minutes and 30 seconds. The tape begins with the defendant sitting on a bench, with Officer Jarvis standing near by. The defendant, who speaks continuously throughout the recording, begins by stating, "I don't give a fuck what you write on that paper. My lawyer will eat that shit up yo." See People's Ex. 2, at 00:14. Officer Jarvis asks the defendant his name, and the defendant responds, "I'm not, I'm not answering no questions man. I got lawyers man. I got lawyers man. Take me through the system." See People's Ex. 2, at 00:24. The defendant continues to curse and begins to yell repeatedly, asking why he is being detained. The defendant repeatedly does not let the officer respond and shouts over the officer when the officer attempts to speak. The defendant then demands to know why he was not given a breath test at the scene of his arrest.

The next mention of a lawyer occurs approximately eight minutes later when the [*4]defendant demands to know at what time he was "detained." The defendant states, "What time was I detained? No. What time was I detained? Can you state, does it state what time I was detained on your report?" When Officer Jarvis tells that defendant that he is holding an instruction sheet, not a police report, the defendant insists, "No. What does it say on that report sheet I was detained? What time does it state? You have to state the time that wasn't available, to the time description at the time I was under the influence, at the, under the influence driver in a commercial vehicle in Bronx, New York on Boston Road. At what time?" Officer Jarvis says "sir" and the defendant continues, "No. It has to be recorded at what time or I have to be let go. I'm gonna to have to call my lawyer at this moment. It has to be recorded. State it on the camera. Before I take any drug test, before I take any sobriety test, before I take any of the above, you have to say why I was pulled over on this camera." See People's Ex. 2, at 09:10 - 10:05. A few seconds later, the defendant states, "You can call my lawyer all day. You can do whatever you want to do." At this point, Officer Jarvis tells the defendant, "You can call your lawyer if you want." The defendant responds, "I'm under detainment already," but does not follow-up on the officer's offer to contact his attorney, and never again mentions an attorney. See People's Ex. 2, at 10:28 - 10:34.

Rather, for the next sixteen minutes, the defendant continues talking. He speaks about witnesses that were let go and continues demanding to know why he was arrested, at what time he was detained, and why a sobriety test was not administered at the scene. The defendant then goes on to say that he was embarrassed and that he pays taxes. Throughout the defendant's diatribe, Officer Jarvis attempts to inform the defendant of the consequences of refusing to take the breath test. Significantly, on several occasions Officer Jarvis states that the defendant is refusing to take the breath test. Each time the defendant is emphatic that he is not refusing to take the breath test.

Twenty-seven minutes into the procedure, the defendant voluntarily provides a breath sample. The results of the test showed that the defendant had a blood alcohol content of .157 percent.

The defendant argues that he invoked his right to speak with a lawyer before taking the breath test. I disagree. Viewed in its entirety, the video fails to show that the defendant's references to a lawyer, either standing alone or in the context in which they were made, were unequivocal specific requests to speak with a lawyer. Rather, in the four instances in which the defendant made mention of a lawyer, he was chastising Officer Jarvis for not answering his questions regarding why he was arrested, at what time he was arrested, and why a sobriety test was not administered at the scene. The defendant mentioned a lawyer in an attempt to induce the officer to answer his questions. Given the context, there is not a specific, unequivocal request for counsel. See People v. Glover, 87 NY2d 838, 839 (1995) (stating that whether a request for counsel is unequivocal "must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression, and the particular words . . . used by the defendant").

The cases relied on by the defendant are all distinguishable. In People v. Gursey, 22 NY2d 224, 227 (1968), while being questioned at the station house, the defendant specifically asked "permission to call his lawyer and was told, You will be allowed to make a call to your attorney after I get this information.'" In Gursey, it was significant that defendant had a particular [*5]attorney in mind when he requested permission to call. Also, the defendant in Gursey made a second specific and unequivocal request to speak with this attorney when asked to take a drunkometer or breath analysis test. Both of the defendant's requests were denied. See Gursey, 22 NY2d at 227. Here, by contrast, defendant's statements regarding attorneys were equivocal, and, in any event, the police explicitly stated defendant could call his attorney. Defendant, however, never responded.

In People v. Smith, 18 NY3d 544 (2012), the defendant unequivocally asked to speak with his lawyer. The troopers permitted the defendant to call his lawyer and allowed the defendant to wait a half-hour for a return call from his lawyer before approaching the defendant for a second time to ask whether he was willing to consent to a chemical test. The defendant refused again stating that he wanted to speak with his lawyer. The troopers, without telling the defendant that his time for deliberation was up, deemed his response a refusal. The Court of Appeals in Smith concluded that the troopers satisfied the requirements of Gursey. Although the case involved "a request to speak to counsel, the issue [there was] not whether defendant's Gursey right was violated but, rather, whether proof that he refused a chemical test analysis was properly admitted against him at trial." See Smith, 18 NY3d at 550 (bracketed material added; italics in original).

This case is similar to People v. Hart, 191 AD2d 991 (4th Dept.), lv. denied, 81 NY2d 1014 (1993). There the defendant's statements to the police that he should have counsel did not unequivocally inform the police of his intention to retain counsel, or that he wanted the opportunity to consult with an attorney before speaking to the police or undertaking the sobriety tests. The Court ruled that the defendant's statements were insufficient to invoke his right to counsel.

The evidence establishes that the defendant never made a specific request to speak with an attorney before taking the Breathalyzer examination. Morever, even if the defendant had specifically asked to speak with a lawyer, he waived his limited right to counsel when Officer Jarvis told the defendant that he could call his lawyer if he wanted and the defendant failed to respond.

The evidence establishes that the defendant took the Breathalyzer examination voluntarily.

To the extent that defendant claims the "two-hour" rule was violated [see VTL § 1194], the record is clear that the Breathalyzer exam was administered at 3:50 a.m., within two hours of defendant's arrest at 2:44 a.m.

As to the Huntley portion of the hearing, the People met their burden of proving beyond a reasonable doubt that defendant's statements were voluntary. The evidence established that the defendant's statements were spontaneous and not the result of any interrogation.

Finally, defendant has asked the Court to suppress a photograph taken by the police of an unopened bottle of wine observed in defendant's car. In his report, JHO Stadtmauer stated that, "The bottle itself was never recovered and there was no testimony regarding a bottle, regarding any bottle or even regarding any photo of a bottle. This was merely referred to by counsel during oral argument." See Tr. of March 19, 2013 at p. 5. Although the JHO did not specifically make a recommendation about the photograph, ultimately the JHO did recommend denial of defendant's motion to suppress. See Tr. of March 19, 2013 at p. 5. Thus, it would appear that [*6]the JHO's recommendation extended to the photograph as well.

Although the Court has otherwise adopted the recommendation of the JHO, the Court is unable determine from the record whether the bottle was found in a place in defendant's car that was lawfully accessed by the police. See People v. Langen, 60 NY2d 170, 181 (1983) (stating warrantless search of vehicle and its contents permissible only if there is "probable cause to search the automobile generally and a nexus between the probable cause to search and the crime for which the arrest is being made"); People v. Bryant, 245 AD2d 1010, 1012 (3rd Dept. 1997) (stating that "even assuming that there was probable cause to arrest [defendant] for driving while intoxicated" police did not have "probable cause to believe that the vehicle and the personal items of the vehicle's passengers contained contraband"). Moreover, it makes no difference that it is a photograph, and not the bottle itself. See People v. May, 81 NY2d 725, 727 (1992).

Although the People typically bear the burden of going forward on a motion to suppress, there was probable cause to stop and arrest defendant, and suppression of the photograph was not specifically requested in defendant's motion papers. Under the unique circumstances of this case, the Court directs that, if the People intend to seek to introduce the photograph, a hearing be held before the trial judge, prior to jury selection, on the issue of whether the bottle was lawfully accessed by the police. In this regard, the Court has "plenary power to reject, accept or modify the JHO's report in whole or in part based on the court's independent review," and can "go beyond the written record and order further proceedings such as hearing relevant witnesses for itself if deemed necessary . . ." See People v. Scalza, 76 NY2d 604, 608-09 (1990).

For the reasons set forth above, the report of the JHO is adopted, as modified.

The defendant's motion is otherwise denied in all respects.

This foregoing constitutes the Decision and Order of this Court.

Dated:May 7, 2013

Bronx, New York


Hon. Julio Rodriguez III, C.C.J.