People v Salguero-Saavedra
Annotate this CaseDecided on October 23, 2023
District Court of Nassau County, First District
The People of the State of New York,
against
Raul Salguero-Saavedra, Defendant(s)
Index No. CR-005942-23/NA
Anne T. Donnelly, District Attorney, Nassau County, Attorney for Plaintiff, 262 Old Country Road, Mineola, New York 11501, 516-571-3800; Steven F. Christiansen, PLLC, 170 Old Country Rd, Ste 316, Mineola, New York 11501-4310, 516-481-3121.
Michael A. Montesano, J.
The defendant is charged with violating VTL sections 1192.02, and 1192.03 and 1192.1.
A Huntley, Dunaway, Hinshaw hearing was held pursuant to a written stipulation. The hearing was held on September 19, 2023, with the assistance of a Spanish Interpreter.
Testimony was given by Police Officer Kevin Turbush (hereinafter "Turbush").
FINDINGS OF FACT
Turbush testified that on March 24, 2023, he came upon a car stop at 11:00 p.m. in front of 2 Babylon Turnpike in Roosevelt, New York Nassau County. He was operating an unmarked police car and assigned to DWI enforcement. Two officers in a marked police car had stopped the defendant for a VTL violation of 1128-C( Failure to use designated lane). While driving, the defendant crossed over into the opposite lane of traffic almost causing a head-on collision with the police car of the two officers i.e., Police Timpinaro and Police Officer Noonan. When P.O. Turbush arrived at the scene, P.O. Timpinaro handed over the matter and investigation to him. P.O. Turbush testified what P.O. Timpinaro told him based upon his observations as to the defendant's operation of the vehicle and near head-on collision.
P.O. Timpinaro further told P.O. Turbush of his observations of the defendant's indicia of intoxication.
P.O. Turbush then went over to the defendant's vehicle a 2010 Ford 150 pick-up truck. The Defendant was seated in the driver's seat with the engine running and that there were two (2) passengers in the vehicle. The defendant, in response to Turbush's [*2]inquiry, stated he had been drinking at a party and had two (2) beers.
Police Officer Turbush further testified that he conducted an HGN test and PBT test but did not administer any other Field Sobriety Test because the defendant was Spanish-speaking and had difficulty in understanding the instructions (see transcript at Pg 26 lines14-245 and page 27, line 1). When administering the HGN test Turbush gave instructions using "broken" Spanish and English. Turbush then had the defendant move to the rear of his pick-up truck to conduct the HGN test in order to avoid interference from the lights of his police car.
Turbush testified that a total of four (4) additional officers came to the scene in separate cars. He had called for assistance because the two passengers in the truck became unruly. At one point there a total 6 police cars at the scene all with their emergency lights and head lights on. The roadway had one lane in each direction and a minimal shoulder. He then proceeded to conduct the HGN test using a combination of both English and broken Spanish there were positive clues for intoxication.
Turbush then proceeded to conduct a PBT, at which time he left the defendant seated on a curb while he walked back to police car about two car lengths from where the defendant was seated to retrieve his police bag from his car and open it and retrive his PBT kit and insert a straw and returned to the defendant. His retrieval of the police bag broke the twenty minute observation period. The officer then testified he left the defendant again to walk over to the defendants vehicle turning his back on the defendant and going several steps away to assist officers timpinaro and noonan with the unruly passengers. This again broke the twenty minute observation period. Turbush testified on cross examination that on both occasions he was able to observe the defendant and saw no belching, burping ,regurgitation or the defendant putting anything in his mouth, the Court finds this testimony not to be credible. He then administered the test with positive results for intoxication and then placed the defendant under arrest.
CONCLUSIONS OF LAW
The stop of the defendant's vehicle based on the testimony of Police Officer Turbush, who under the fellow officer's rule, (See People v. Edwards, 95 NY2d 491 and People v. Petralia, 2 NY2d 47) testified as to the pre-arrest actions and observation of Officer Timpanaro the Court finds that there was probable cause for the car stop. (See People v. Mitchell 124 AD3d 912, NYS 3d 207, App Div 2nd Dept 1/28/2015.
As to the first statement made on March 24, 2023 at 11:00 p.m. to Officer Turbush, defendant states that he had been drinking at a party and had two beers. After hearing the testimony of Police Officer Turbish as to voluntariness The Court finds the statement to be made voluntarily in the course of the investigation and prior to arrest and therefore will be admissible at trial. As to the second statement made by the defendant on March 25, 2023 at 3:26 a.m., there was no testimony given as to the voluntariness of the statement and therefore that statement is suppressed.
All other statements not noticed are also excluded pursuant to the stipulation between defense counsel and the People.
As to the administration of the HGN test to the defendant by Police Officer Turbush, the results of the test are suppressed for the following reasons:
1.) First and foremost, the instructions for the test were given in English and broken Spanish. It was evident that the defendant was not proficient in understanding English.
2.) Under cross-examination, Turbush admitted that certain medication could affect HGN and must be ascertained before the test but he could not state if he asked the defendant the question or not . This is a basic foundation for the test. Both the police department and the prosecution have a substantive interest in ensuring the reliability of conducting the test ensuring the reliability and clarity of the results. See: People v. Aviles 28 NY3d 497, 46 NYS 2d 478 Ct of Appeals 10/18/2016.
As a result of the above the HGN test testified to by Police Officer Turbush is hereby suppressed.
As to the PBT test, the glaring absence of the twenty minute observation period is troublesome. In addition to the language barrier issue of the defendant and the officer's attempt to instruct the defendant in both broken-Spanish and English.
In the People v. Hernandez 78 Misc 3d 768 Criminal Ct City of NY which this Court considers for pervasive purposes lays out what is required for the admissibility of a portable breath test, and as further held in People v. Jones 33 Misc 3d 927 NYS 2d 586. The device must be in good working order and must be properly calibrated, this has not been established in the case at bar, in that Turbush could not recall when the last time his PBT unit was calibrated See transcript pg 55 lines 1-25 and pg 56 line 1-7.
In addition the device must be on the approval list of the Commissioner of Health under 10 NYC Pt. 59.4 there was no testimony that the unit used met this requirement.
In addition, there must be a twenty minute observation period prior to the test being administered.
In the case at bar, the officer's testimony clearly indicated that he did not observe the twenty minute observation period in that, on two occasions, the observation period was broken. It occurred once when he had the defendant seated on the side of the road and he left the defendant to walk back to this police car which was in the Court's estimate from the testimony about 2 car lengths away from the defendant and approximately at 11:20 p.m at night. The officer had to go into his car and retrieve his police bag and remove the PBT kit, open the unit, put in the straw and go back to the defendant and the second break in the observation period, Officer Turbush stopped and walked over several feet to assist Officers Timpinaro and Noonan who needed assistance in controlling the disorderly passengers in the defendant's vehicle and in doing so, Officer Turbush turned his back on the defendant and was several steps away from the defendant, breaking the observation period a second time. The officer's testimony that he could observe the [*3]defendant on each occasion to see if he belched, burped or regurgitated or put anything in his mouth is not credible. (See transcript pg 52 lines 14-25, page 53 lines 1-25, pg 54 lines 1-25, pg 55 lines 1-25, page 56 lines 1-7)
Therefore, based on the facts of the case, the testimony of Officer Turbush and the conclusions of law, the Court finds that statement No.2 taken on March 25, 2023 at 3:26 a.m. and listed on the peoples 710.30 notice is suppressed as there was no testimony offered as to the voluntariness of the statement. The non-noticed statements are suppressed; as per the stipulation, both the HGN and PBT tests with results are suppressed for the reasons stated supra.
While the Court finds that there was probable cause for the vehicle stop (See People v. Hinshaw, 35 NY3d 427), the absence of legal protocol mandates the Court's suppression.
This constitutes the decision and order of the Court.
So Ordered.
Michael A. Montesano
DISTRICT COURT JUDGE
Dated: October 23, 2023
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