People v Morocho-Morocho

[*1] People v Morocho-Morocho 2021 NY Slip Op 50455(U) Decided on May 18, 2021 Justice Court Of The Town Of Ossining, Westchester County Gasbarro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2021
Justice Court of the Town of Ossining, Westchester County

The People of the State of New York, Plaintiff,

against

Wilson G. Morocho-Morocho, Defendant.



20020182



Assistant District Attorney Roger T. Dean

Miriam E. Rocah, Westchester County District Attorney

For the People of the State of New York

Richard L. Ferrante, Esq.

For the defendant
Jeffrey W. Gasbarro, J.

For the reasons that follow, the defendant's motion to suppress is granted in part and is otherwise denied.

FINDINGS OF FACT

In separate simplified traffic informations, the People alleged that, on February 9, 2020, in the Town of Ossining, the defendant committed the offenses of driving while intoxicated (Vehicle and Traffic Law § 1192[3]), refusal to submit to a breath test (Vehicle and Traffic Law § 1194[1][b]), failure to keep right (Vehicle and Traffic Law § 1120[a]), and operating a vehicle at an unreasonable and imprudent speed (Vehicle and Traffic Law § 1180[a]). At a pre-trial Dunaway/Huntley/Mapp hearing the People presented the testimony of Officer Patrick McGovern and Officer Addison Chavez, who testified credibly as follows:

Testimony of Officer Patrick McGovern

Officer Patrick McGovern testified that he has been a member of the Village of Ossining Police Department for over nine years, during which period he has personally made over 20 arrests for driving while intoxicated and assisted in at least 60 arrests for driving while intoxicated. Officer McGovern testified that as part of his training at the police academy, he received training in identifying whether persons are intoxicated by alcohol and completed the standardized field sobriety test course.

On February 9, 2020, at approximately 4:08 a.m., Officer McGovern was on patrol in a marked police vehicle, and was dispatched to assist at the scene of a motor vehicle accident on the northbound side of Route 9A in the Town of Ossining. The weather conditions were clear. Upon arriving at the scene, Officer McGovern saw a four-door sedan, which was located in a [*2]sideways position, approximately 30 to 40 feet off Route 9A, in a marshy area below the level of the roadway. Three to four police vehicles were already there and there were no longer any persons inside the sedan. There were four or five individuals present, including the defendant, some of whom were being interviewed by police officers.

Upon inspecting the vehicle, Officer McGovern observed that the front passenger-side seat was completely reclined so that it was touching the rear seat. Officer McGovern opined that, with the seat in that position, a person would not have been able to sit in the rear passenger-side seat. Officer McGovern did not know when the front passenger-side seat had been reclined and acknowledged that it could have been put into a reclined position after the accident.

Officer McGovern saw blood in the area of the floor mats beneath the rear driver-side seat. One person at the scene was bleeding "profusely," and, based upon that bleeding, Officer McGovern determined that the heavily-bleeding passenger had been sitting in the rear driver-side seat (where the blood was located within the vehicle). Officer McGovern did not recall seeing any blood on the defendant.

Officer McGovern testified that another passenger, named "Tenasaca," had been sitting in the front passenger-side seat because that was where the police had found him and because Tenasaca had asked McGovern to retrieve his glasses from the front passenger-side seat.

Officer McGovern asked the defendant where he had been sitting in the vehicle and the defendant responded that he was in the "right rear" seat. Officer McGovern also asked the defendant whether he had been driving the car at the time of the accident and the defendant insisted that he was in the rear passenger-side seat. The defendant never admitted that he had been driving the car. While speaking to the defendant, Officer McGovern testified, he came to believe the defendant was intoxicated based upon the odor of alcohol on his breath, bloodshot and glassy eyes, and because his speech was slurred. The defendant agreed to take a standardized field sobriety test. Officer McGovern performed the horizontal gaze and vertical gaze nystagmus test on the defendant, which he failed, indicating to McGovern that the defendant was highly intoxicated due to the consumption of alcohol. Officer McGovern did not subject the defendant to any other standardized field sobriety tests.

Officer McGovern testified that he concluded that the defendant had been driving the car at the time of the accident, based upon the injuries to the defendant as well to the heavily-bleeding person he determined to have been sitting in the rear driver-side seat. Officer McGovern testified that the defendant had "abrasions" and "bruising" from his seat belt, which extended from his left shoulder towards his chest. The abrasions indicated to Officer McGovern that the defendant was sitting on the driver's side of the vehicle when the accident occurred. Officer McGovern did not recall seeing any seat belt marks on the other passengers. During re-cross-examination, Officer McGovern acknowledged that the seat belt marks on the defendant could have been caused from sitting in either the front seat or the rear seat on the driver's side of the car. Notably, the defendant had himself denied to Officer McGovern that he was seated anywhere on the driver's side of the vehicle.

At approximately 4:45 a.m., another police officer at the scene placed the defendant under arrest for driving while intoxicated. The defendant was placed in handcuffs and transported to police headquarters. Officer McGovern stayed at the scene. Officer McGovern testified that the defendant was no longer free to leave once he was placed in handcuffs.

The defendant introduced into evidence an approximately 90-second clip of police body-worn camera footage from another officer who was present at the scene of the accident [*3](Defendant's Exhibit A in Evidence).[FN1] In that clip, the defendant is visible, not in handcuffs, and officers are questioning him as to where he was sitting in the vehicle. An officer can be heard telling the defendant that he has a mark that doesn't match what he told the officers. The officer states, "If you were in the rear passenger seat, why do you have a mark across your chest like this?" A different officer asks the defendant where he was sitting in the vehicle, to which the defendant responds "back seat." An officer can be heard stating that the defendant's claim he was sitting in the rear of the car "makes no sense." The officer then asks another person present at the scene where he was sitting in the car. That person states: "I plead the Fifth, officer. I plead the Fifth." Then a different voice with a higher intonation, also not belonging to the defendant, and perhaps coming from off-screen, states: "I plead the Fifth."

Officer McGovern testified that he was not present during the police questioning depicted in Defendant's Exhibit A and that he did not recall ever hearing the defendant state: "I'll plead the Fifth." Officer McGovern did not advise the defendant of his Miranda rights at the scene and he did not hear any other officer do so. Officer McGovern was not involved in determining who was the owner of the vehicle involved in the accident.

Testimony of Officer Addison Chavez

Officer Addison Chavez testified that he has been a member of the Village of Ossining Police Department for approximately seven years. Prior to becoming an officer, Officer Chavez received training at the police academy in identifying intoxicated persons and administering standardized field sobriety tests. On the morning of February 9, 2020, Officer Chavez responded to police headquarters to assist with processing the defendant, who was being investigated for driving while intoxicated.

Officer Chavez testified that he asked the defendant whether he had had any drinks that evening. The defendant responded that he had consumed a "Long Island Iced Tea" and other drinks at a bar in White Plains. Officer Chavez testified that he believed the defendant was intoxicated based upon the odor of alcohol on his breath, slurred speech, and watery and glassy eyes. Officer Chavez requested that the defendant perform three standardized field sobriety tests: the horizontal gaze nystagmus test, the walk and turn, and the one-leg stand. The defendant complied with the requests and performed the tests, but failed all three. Officer Chavez testified that at all times he interacted with the defendant, the defendant was never threatened and that he voluntarily complied with the requests made of him.

After the field sobriety tests, Officer Chavez asked the defendant whether he would submit to a chemical breath test, and the defendant indicated that he would. The defendant was seated at the Datamaster breathalyzer machine, was asked to place his mouth on the mouth attachment, make a proper seal, and blow. Officer Chavez testified that the defendant placed his mouth on the attachment, but failed to make a proper seal, so the machine was unable to register a proper reading. Officer Chavez then read to the defendant the statutory refusal warnings from a standardized form, which was introduced into evidence (People's Exhibit 8 in Evidence). Specifically, Officer Chavez testified, and People's Exhibit 8 indicates, that at 5:29 a.m. and 5:37 [*4]a.m., the defendant was warned, inter alia, about the immediate suspension of his license upon a refusal to submit to the test and that a refusal may be admitted into evidence in a trial resulting from his arrest. The defendant refused to submit to the test on each occasion.

On cross-examination, Officer Chavez was asked, among other things, whether he filed a report in this case, and he replied that he had filed a "supplemental." Defense counsel immediately brought to the Court's attention that the People had not disclosed a written report by Officer Chavez, and requested, as a sanction, that the Court draw a negative inference regarding Chavez's testimony. The Court then recessed the hearing so that the report could be provided to defense counsel and for counsel to have an opportunity to review it. The report was provided and, after defense counsel stated that he had had enough time to review it, the cross-examination resumed.

Officer Chavez testified that he never read the defendant the Miranda warnings while he was at the station, and never heard any other officer read him the Miranda warnings.

CONCLUSIONS OF LAW

1. The defendant did not invoke his right to counsel at the scene of the accident

Defense counsel asserted in his argument at the hearing that the defendant's voice can be heard in the bodycam footage admitted as Defendant's Exhibit A stating "I plead the Fifth." As a factual matter, the Court disagrees. Upon careful review of Defendant's Exhibit A, I conclude that the words "I plead the Fifth" were spoken three times. The first two times those words were clearly stated by another person present at the scene, and not the defendant. The third statement of the words "I plead the Fifth" may have come from a person off-screen. Regardless, when those words were spoken, the defendant was visible on screen and his mouth did not appear to move. Thus, although the right to silence may be invoked in a noncustodial setting (see People v Reid, 34 AD3d 1273, 1273 [4th Dept 2006]; John J. Brunetti, New York Confessions § 2.08[4][a]), Defendant's Exhibit A does not support the defendant's contention that he invoked his Fifth Amendment right to silence at the scene of the accident.

2. The People established probable cause to arrest the defendant for driving while intoxicated

"In determining probable cause, the standard to be applied is that it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" (People v Vandover, 20 NY3d 235, 237 [2012], quoting People v Carrasquillo, 54 NY2d 248, 254 [1981]). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v Bigelow, 66 NY2d 417, 423 [1985] [citations omitted]).

"When a defendant is charged with driving while intoxicated, probable cause for the arrest exists if the arresting officer can demonstrate reasonable grounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law § 1192" (People v Kowalski, 291 AD2d 669, 670 [3d Dept 2002]; see People v Fenger, 68 AD3d 1441, 1442 [3d Dept 2009]).

There was no direct evidence that the defendant was the operator of the subject vehicle. However, it is well-established that the element of operation may be proven through circumstantial evidence (see People v Blake, 5 NY2d 118, 120 [1958] ["The facts established point logically to the defendant's operation of the automobile while intoxicated, even though there is no direct proof that he drove into the guardrail. It is conceivable that some one else drove the car against the guardrail, but that is a possibility often present in many circumstantially proven criminal cases"]; People v Turner, 34 Misc 3d 159[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2012] ["The District Court properly concluded that the police had probable cause to arrest defendant. The element of operation can be proven by circumstantial evidence, that is, without the necessity of eyewitness testimony that defendant operated his or her vehicle." (emphasis added)]).

The confluence of several objective factors gave rise to probable cause that the defendant was the operator of the vehicle. Although the defendant insisted that he had been a passenger, in the rear passenger-side seat, several pieces of evidence belied that claim. Officer McGovern observed bruising and abrasions on the left side of the defendant's body, which McGovern recognized as a seat belt injury that could only have occurred had the defendant been seated on the driver's side of the vehicle. Although Officer McGovern acknowledged during defense counsel's questioning that such injury could have occurred had the defendant been seated in the rear driver-side seat, the large amount of blood in that seat more logically placed the other passenger who was bleeding badly at the scene of the accident in that seat.

Further, Officer McGovern's observations of the defendant's bloodshot eyes, slurred speech, and the odor of alcohol on his breath, coupled with the defendant's failure of the horizontal gaze and vertical gaze nystagmus test, were sufficient to give rise to probable cause that the defendant was intoxicated (see People v Riley, 69 Misc 3d 132[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; see also People v Johnson, 140 AD3d 978, 979 [2d Dept 2016]). In making its probable cause determination, the Court has not relied upon Officer Chavez's testimony regarding the field sobriety tests administered at police headquarters, since those tests were performed after the defendant's arrest.

3. The defendant is entitled to suppression of all custodial statements

The Court now turns to the issue of the defendant's statements made at police headquarters. "Statements made in response to custodial interrogation are inadmissible in the absence of Miranda warnings" (People v Stephans, 168 AD3d 990, 994 [2d Dept 2019], citing People v Dunbar, 24 NY3d 304, 313—314 [2014]). "[T]he special procedural safeguards outlined in Miranda are required . . . where a suspect in custody is subjected to interrogation" (Rhode Island v Innis, 446 US 291, 300 [1980]).

Here, the defendant was in custody from the moment he was placed into handcuffs at the scene of the accident. "The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" (People v Paulman, 5 NY3d 122, 129 [2005]). Officer McGovern testified that, at the point the defendant was arrested and handcuffed, he was no longer free to leave (see People v Sylvester, 187 AD3d 798, 800 [2d Dept 2020] ["The evidence presented at the hearing, including, among other things, the officer's testimony that the defendant was handcuffed, in custody, and not free to leave established that a reasonable, innocent person would not have [*5]believed that he or she was free to leave at the time that the defendant made his statement to the officer" [citation omitted]).

Furthermore, the defendant's statements regarding what beverages he consumed and which bar he had been at earlier that evening were clearly the product of interrogation, as the statements were made in response to Officer Chavez's questions and were not, for example, volunteered spontaneously (see People v Stephans, 168 AD3d 990, 995 [2d Dept 2019]).

Accordingly, the defendant's statements made at police headquarters, which were in response to custodial interrogation, must be suppressed.

4. The results of the defendant's field field sobriety tests and his refusal to submit to a chemical test are admissible

The failure to provide Miranda warnings to the defendant does not require suppression of the results of the standardized field sobriety tests administered at police headquarters or the defendant's refusal to consent to a chemical test. "The privilege against self-incrimination bars the State from compelling a person to provide 'evidence of a testimonial or communicative nature'" (People v Hager, 69 NY2d 141, 142 [1987], quoting Schmerber v California, 384 US 757, 761). "Evidence is 'testimonial or communicative' when it reveals a person's subjective knowledge or thought processes" (People v Hager, 69 NY2d at 142). Thus, Miranda warnings are not required to allow the results of field sobriety tests into evidence" (People v Berg, 92 NY2d 701, 703 [1999]). Similarly, "Miranda warnings are not required in order to admit the results of chemical analysis tests, or a defendant's refusal to take such tests" (id.). The Court notes that verbal responses by the defendant during standardized field sobriety tests, such as "[r]eciting the alphabet and counting are not testimonial or communicative" and, thus, are admissible absent the administration of Miranda warnings (id. at 705).

Additionally, the People established that the defendant was provided with sufficient warnings in clear and unequivocal language that his refusal to submit to a chemical test to determine the alcoholic content of his blood would be admissible in any trial resulting from his arrest and, therefore, the Court finds that the defendant's refusal to submit to the breathalyzer test is admissible (see Vehicle and Traffic Law § 1194[2][f]; see also People v Thomas, 46 NY2d 100, 103 [1978]).

5. Under the circumstances, no sanction is warranted for the People's discovery violation

Officer Chavez's supplemental report in this case was required to be disclosed to the defendant pursuant to CPL 245.20(1)(e), which requires automatic disclosure of, inter alia, "all police reports, notes of police and other investigators, and law enforcement agency reports." That provision specifically applies to "statements, written or recorded or summarized in any writing or recording, by persons to be called as witnesses at pre-trial hearings" (CPL 245.20[1][e]). "[A]ll items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution" (CPL 245.20[2]).

The standard for imposing sanctions for discovery violations is set forth in CPL 245.80, which states, in relevant part:

"When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material"

(CPL 245.80[1][a] [emphasis added]).

Here, although Officer Chavez's supplemental report was disclosed belatedly, the defendant failed to demonstrate that he was prejudiced by the late disclosure. The Court has reviewed Officer Chavez's supplemental report, which was made part of the record for the sole purpose of determining what sanction, if any, was warranted for the discovery violation, and finds that the brief written statement contained therein was not meaningfully different or otherwise contradictory to his testimony at the hearing. Moreover, to guard against prejudice to the defendant, the Court recessed the suppression hearing and gave defense counsel as much time as was needed to review the report before proceeding with the hearing. The Court did not resume the hearing until defense counsel signaled that he was ready to proceed. The defendant was, thus, given a reasonable period of time to review the report and cross-examine Officer Chavez regarding its contents.

Even assuming that the defendant established prejudice, CPL 245.80(2), entitled "Available remedies or sanctions," specifies that, upon a failure to turn over discovery required pursuant to CPL article 245,

"the court may make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges, or make such other order as it deems just under the circumstances"

(CPL 245.80[2] [emphasis added]). By recessing the hearing so that the report could be provided to defense counsel, and affording defense counsel an opportunity to review the supplemental report before resuming his cross-examination, the Court effectively granted the defendant the same remedy he would have been afforded by a continuance.

Accordingly, it is

ORDERED that the defendant's motion is granted to the extent of suppressing all statements made after he was arrested and placed in handcuffs at the scene of the accident, including all statements made at police headquarters, and his motion is otherwise denied.

This constitutes the decision and order of the Court.

Dated: May 18, 2021

Ossining, New York

____________________________

HON. JEFFREY W. GASBARRO

TOWN JUSTICE Footnotes

Footnote 1: Only a 90-second portion of Defendant's Exhibit A, beginning at timestamp 09:13:31Z, was played at the hearing. Only that 90-second portion is in evidence.