People v Rivera

[*1] People v Rivera 2023 NY Slip Op 51213(U) Decided on November 13, 2023 Criminal Court Of The City Of New York, Queens County Licitra, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2023
Criminal Court of the City of New York, Queens County

The People of the State of New York,

against

Rivera, Defendant.



Docket No. CR-012327-23QN


For the People: Melinda Katz, District Attorney (by Tara Hayes & Peyton Nir)

For Mr. Rivera: Queens Defenders (by Madison Carvello & Kathleen Rende)
Wanda L. Licitra, J.

On October 3, 2023, this court conducted a Huntley/Dunaway/Refusal hearing. The following now constitutes the court's findings of fact and conclusions of law. In sum, the Huntley motion is denied. The Dunaway motion is granted. The Refusal motion is moot; but were it not, it would be granted.

FINDINGS OF FACT

At the hearing, the People called one witness, Fidney Moise. The court credits his testimony in full. Fidney Moise is a police officer employed by the NYPD. He has worked there for seven years. His formal rank is "police officer" and he is at the 104th Precinct. Before coming to court, Officer Moise reviewed his file for this case, including his body-worn camera footage, a 911 call, his memo book, his partner's memo book, the Highway Unit officer's memo book, an accident report sheet, and other police paperwork.

Officer Moise has been trained by the NYPD Highway Unit in cases involving intoxicated driving, though the training was six years ago. He has also been trained for "speeding, tints, and violations." In his career, he has been involved in about thirty investigations involving intoxicated persons. He has been involved in about thirty DWI arrests.

On May 2, 2023, Officer Moise was on patrol in the 104th Precinct in Ridgewood, Queens. He was working with his partner, Officer Kim, and the two were in a marked police vehicle. Both officers were in uniform.

At approximately 1:05 a.m., Officer Moise received approximately three 911 calls stating that a car had slammed into a wall on the Jackie Robinson Parkway in Queens. The officers responded to the location. Upon arriving there, Officer Moise observed two women and one man walking on the side of the highway. He also saw a black Jeep that was crashed.

When the officers arrived, Mr. Rivera approached the officers' vehicle and the officers stepped out. The officer asked, "What happened?" Mr. Rivera stated, "I crashed," and said he was the driver. The officer noted that English did not appear to be Mr. Rivera's first language, but he did not ask him whether he needed an interpreter.

At the scene, the officer made observations of Mr. Rivera. The officer was only a few [*2]inches away from Mr. Rivera; neither the officer nor Mr. Rivera was wearing a mask; and the area was well lit by streetlights. At the hearing, the prosecutor elicited these observations from the officer during direct examination several times:

Q: Now, Officer, what, if any, observations did you make of the defendant during this conversation?A: During the conversation, the driver, the defendant, was slurring and speaking towards me and unsteady on his feet. Bloodshot, red eyes and watery eyes as well. . . .Q: Did you make any other observations during this conversation with the defendant?A: The vehicle that was crashed probably two car lengths in front of me, and the two females that were drunk on the back of the road behind me. . . .Q: Officer, after your conversation with the defendant did you make any other observations about the defendant?A: The defendant was clearly intoxicated.Q: Why do you say that?A: Based on my expertise and training the defendant was intoxicated.

(Tr. at 8-10). Throughout this interaction at the scene, Mr. Rivera was speaking both English and Spanish and appeared confused. The officer's demeanor was calm. He made no threats or promises, and Mr. Rivera was not under any restraints or force. At the hearing, the prosecutor asked, again:

Q: Did there come a time when you made any other observations—actually, withdrawn. Based on your experience and observations of the defendant on May 2, 2023, did you form an opinion as to the defendant's sobriety?A: Yes, I did.Q: What was that opinion?A: My opinion was that the defendant was unsteady on his feet—MS. CARVELLO: Objection, asked and answered.THE COURT: Overruled.Q: Go ahead.A: The defendant was unsteady on his feet, he was slurring his answers to me, and his eyes were bloody red.

(Id. at 11). Though the question had, effectively, been asked and answered three times, the court in its discretion allowed the officer to answer the question yet again. After giving this fourth repeated answer, however, the prosecutor then asked, "Did you make any observations with regards to any smells?" (Id. at 11-12). The tone and inflection of the question clearly put emphasis on the word "smells." The court sustained an objection to the question as leading.[FN1]

At approximately 1:25 a.m., the officers arrested Mr. Rivera with handcuffs and, along with FDNY Emergency Medical Services, took him to Jamaica Hospital. After Mr. Rivera arrived at the hospital, Officer Dipalo of the NYPD Highway Unit responded. Mr. Rivera was kept in a hospital bed with a neck brace. At around 2:47 a.m., Officer Dipalo began requesting that Mr. Rivera submit to a chemical test, and he did so in English. No Spanish interpreter was present. The exchange was captured on body-worn camera footage, introduced as People's Exhibit 1.

At the hospital, Officer Dipalo appeared to have some conversation on the body-worn camera footage while the audio was off. Nothing in the record explains what was said during that conversation. When the body-worn camera audio came on, Officer Dipalo first asked, "You have been arrested for operating a motor vehicle while impaired, I would like you to take a breath test, will you take a breath test, yes or no?" Mr. Rivera said, "No." Officer Dipalo then stated, "If you refuse a subject test, or any portion thereof, it will result in the immediate suspension and subsequent revocation of your driver's license and operating privileges for a minimum period of one year whether or not you are found guilty of the charges that you have been arrested for. In addition, your refusal to submit to a blood test, or any portion thereof, can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest. I will ask you again, will you take a blood test, yes or no?" Mr. Rivera said, "No." Officer Dipalo then asked Mr. Rivera if he'd take a "breathalyzer test." Mr. Rivera said, "Excuse me?" Officer Dipalo responded, "Will you take a breathalyzer test that I was telling you about, you wanna take a breathalyzer test?" After apparently equivocating, Mr. Rivera refused.

CONCLUSIONS OF LAW

I. Huntley

The defense first argues that Mr. Rivera's alleged statement to the police, admitting he crashed his car, was the product of custodial interrogation and elicited in violation of Miranda. Custodial interrogation consists of two things: custody and interrogation. A person is in "custody" when a "reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave." (E.g., People v. Paulman, 5 NY3d 122, 129 [2005]). A person is "interrogated" when the police act or speak in a way they "should know [is] reasonably likely to elicit an incriminating response from the suspect." (E.g., Rhode Island v. Innis, 446 U.S. 291, 300-02 [1980]).

The court rejects the defense's argument. The record establishes that Mr. Rivera was not in custody at the time of the alleged statement. While the court understands that some traffic-[*3]related police interactions may develop into "treatment that renders [a person] 'in custody' for practical purposes"—and thereby entitle that person "to the full panoply of protections prescribed by Miranda"—that is not the case here. (See Berkemer v. McCarty, 468 U.S. 420, 440 [1984]). The officers arrived in their police vehicle; there was no testimony their lights or sirens were activated; Mr. Rivera voluntarily approached the officers; and the officers then stepped out and asked, "What happened?" These are not circumstances that would suggest that a reasonable person innocent of any wrongdoing would not feel free to leave. Thus, Miranda warnings were not necessary.

Accordingly, the Huntley motion is denied.

II. Dunaway

At a Dunaway hearing, the People have the initial burden of going forward with facts that establish, prima facie, that the arrest was lawful. (See, e.g., People v. Adams, 224 AD2d 443, 434 [2d Dep't 1996]). If the People meet their burden of production, the burden then shifts to the defense to show, by a preponderance of the evidence, that the police action was unlawful. (See, e.g., People v. Berrios, 28 NY2d 361 [1971]).

Vehicle and Traffic Law § 1192 criminalizes driving while impaired or intoxicated by alcohol or by ingestion of a drug listed in Public Health Law § 3306. (See generally V.T.L. § 1192]). Thus, at a Dunaway hearing, the People must show that it was "more probable than not" that the accused person "exhibited actual impairment" and that "the impairment resulted from" either consuming alcohol or ingesting a listed drug. (See People v. Koszko, 57 Misc 3d 47, 49 [App. Term, 2d Dep't 2017]). "Conduct equally compatible with guilt or innocence will not suffice." (People v. Vandover, 20 NY3d 235, 237 [2012] [internal quotation marks omitted]).

Here, the People fail to establish that the cause of any possible mental or physical impairment was due to consuming alcohol. While the officer attested that Mr. Rivera exhibited bloodshot, watery eyes; slurred his words; and was unsteady on his feet; he volunteered no observations suggesting that the cause of any of those symptoms was alcohol. The officer's conclusory appeal to his "training and experience" in making that determination is not sufficient. (See Tr. at 8-10). The officer must connect his training and experience to the observations he actually made in order for the court to determine the reasonableness of his conclusion that alcohol was involved. But here, the officer did not testify to any observations on which one could reasonably suspect that it was "more probable than not" that Mr. Rivera had consumed alcohol. (See People v. Rossi, 58 Misc 3d 284, 292 [Just. Ct., Monroe County 2017] ["Based on the evidence presented, this court cannot conclude that it is more probable than not that the defendant's condition was based on alcohol consumption or that a single motor vehicle accident is of itself evidence of intoxicated driving."]). The officer did not testify that alcoholic beverages were found in the car; that Mr. Rivera admitted to drinking any alcohol; or that he smelled "any odor of an alcoholic beverage." (See id. at 294 [involving the same]). Nor did the officer explain why any of his observations suggested that Mr. Rivera's apparent physical state was specifically due to alcohol intoxication. Probable cause for a violation of V.T.L. § 1192 "must be based on articulated facts leading to the logical conclusion of impairment" by alcohol, "not guesswork on the part of the police." (Id. at 293 [noting the same]).

Indeed, Mr. Rivera's unsteadiness, bloodshot eyes, and slurred words [FN2] may very well have been due to the serious accident that left him in a neck brace at a hospital. In such a situation, these observations—without any observations relating to alcohol consumption—are "equally compatible with guilt or innocence." (Vandover, 20 NY3d at 237 [internal quotation marks omitted]; cf. People v. Hira, 32 Misc 3d 129[A], at *2-*3 [App. Term, 2d Dep't 2011] ["However, once the officer smelled the odor of alcohol, he had reasonable suspicion to believe that defendant had committed the offense . . . of driving while ability impaired."]).

In other words, it was premature for the officer to make an arrest for violating V.T.L. § 1192 simply because Mr. Rivera appeared discombobulated after an apparently serious motor vehicle accident. There must be more investigation first to determine whether the person possibly impaired is so because of alcohol. Here, however, the record is "devoid of any credible evidence establishing the presence of alcohol." (People v. Khuns, 191 Misc 2d 655, 657 [Just. Ct., Monroe County 2001]). "Absent such proof," an accused person's "physical appearance and condition" can "reasonably be attributed to causes other than intoxication." (Id.; see also People v. Vedder, 43 Misc 3d 1234[A], at *2 [City Ct., City of Amsterdam 2014] ["Absent any testimony [of alcohol consumption], there were no reasonable grounds to believe that the defendant was operating a motor vehicle in violation of VTL § 1192."]).

Accordingly, the People fail to meet their burden establishing probable cause to arrest Mr. Rivera for violating V.T.L. § 1192. As a result, the fruits of that arrest—including all the observations by the police that followed and Mr. Rivera's later alleged refusal—are suppressed.

III. Refusal

Because the court grants the Dunaway motion, the refusal is suppressed, and the so-called "Refusal" motion is now moot. Nonetheless, the court notes that it would have alternatively suppressed the refusal because it was elicited in violation of V.T.L. § 1194. That statute only allows the People to introduce evidence of a refusal to submit to a chemical test in certain circumstances. Relevant here, the People must first show that the police warned the person of the consequences of refusing to a chemical test in "clear and unequivocal" language. (V.T.L. § 1194[2][f]). "The determination of the standard for clear and unequivocal language is viewed in the eyes of the person who is being told the warnings, not on the objective standard of whether the police officer read the warnings verbatim from the statute." (People v. Lynch, 195 Misc 2d 814 [Crim. Ct., Bronx County 2003] [Clark, J.]).

Here, the officer did not request and warn Mr. Rivera of the consequences of submitting to a chemical test in clear and unequivocal language. Indeed, he did not warn Mr. Rivera of the consequences of refusing to submit to a general "chemical test" at all. Instead, he specified at least two kinds of tests, a breath test and a blood test, and then referred to each one specifically, yet inconsistently. The officer first requested that Mr. Rivera submit to a "breath test." Then the officer warned him of the consequences of submitting to a "blood test." Then the officer asked [*4]him—in the officer's words, "again," but in fact for the first time—whether he would take a "blood test." Finally, the officer asked him whether he would take a "breathalyzer test."

The court has no confidence that, viewed in Mr. Rivera's eyes, he was clearly and unequivocally warned of the consequences of refusing a chemical test. At best, the officer's warning was confusing as to which test the stated consequences would specifically attach. Indeed, Mr. Rivera was never specifically warned of the consequences of refusing to the officer's request for a "breath test." And although the officer did objectively warn Mr. Rivera of the consequences of submitting to a "blood test," he did so sandwiched in between his requests for a "breath test." This confusing warning, therefore, did not meet the "clear and unequivocal" standard sufficient to admit his refusal at trial.

* * *

Accordingly, the Dunaway motion is granted. The Refusal motion is moot; but, if it were it not, the court would grant it. The Huntley motion is denied.

The foregoing constitutes the order and decision of the court.

Dated: November 13, 2023
Queens, NY
Wanda L. Licitra, J.C.C. Footnotes

Footnote 1:"A leading question is one which suggests the answer that the question wants to elicit." (See generally Robert A. Barker & Vincent C. Alexander, 5 NY Prac., Evidence in New York State and Federal Courts § 6:70 [2023]). "Form alone, however, is not always determinative; the content, context and circumstances, including the tone and inflection of counsel's violence, play a role in evaluating suggestiveness." (Id.). Such was the case here. A lawyer asking, "Did you make any observations with regards to smells?" is not necessarily leading. In this case, however, it was clear to the court that the question improperly sought to suggest an answer, and was therefore leading. The officer had not testified to smelling anything at the scene, even though the prosecutor had already asked about his observations four times. And the court observed, based on the prosecutor's demeanor, tone, inflection, and gestures, that she placed special emphasis on the word "smells." Alongside its context, the question plainly sought to suggest an answer to the witness. While the court generally gives lawyers ample opportunity to elicit evidence from their witnesses—in fact, the court here gave the People four chances at asking effectively the same question—it will not countenance suggesting specific answers on direct examination.

Footnote 2:The court also discounts the probative value of "slurred" speech because the officer had little basis on which to reasonably determine that Mr. Rivera's speech was slurred. The officer conceded that he could tell that Mr. Rivera's first language was not English, (Tr. at 27), and he did not testify to any training or experience suggesting that he is familiar with how a non-intoxicated Spanish-speaker may speak English.