People v Reed
2004 NY Slip Op 51662(U)
Decided on December 15, 2004
Supreme Court, Bronx County
Tallmer, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2004
Supreme Court, Bronx County



DAVID REED, Defendant.


Megan Tallmer, J.

Defendant is charged with driving while intoxicated. At defendant's arraignment on July 14, 2003, the People gave the following notice pursuant to CPL § 710.30(1)(a):

The defendant stated on 7-14-03 at 10:08 a.m. at the 45th Precinct, a video statement, the defendant requested an attorney. There was a second statement on 7-14-03, it looks like 12:28 a.m. at the time and place of occurrence to Sergeant Daskalakis, "He walked out on the street then hesitated, went back to the sidewalk and then stepped out on the street again in front of the car. I was at a bar and a comedy club." Pre-Miranda to P.O. Fanini on 7-14-03, at approximately 12:28 a.m. at the corner of Co-op City boulevard and Bartow Avenue in sum and substance "I was driving. I am the one who hit him."

On August 27, 2003, the People filed a superceding information which alleged that at about 12:20 AM at the scene of the accident, defendant stated to Officer Maher "I was driving the car on Bartow Avenue. As I entered the intersection of Coop City Blvd., a guy ran out in front of me and stopped. He made a movement back to the curb and then continued into the street. I had no time to stop and ran him over. I had a few drinks."

On October 23, 2003, defendant made a demand for discovery and an omnibus motion to suppress physical evidence as the fruit of an unlawful arrest. He also moved to suppress the results of a field test on the ground that it was not administered within the two hour period proscribed by VTL 1194(2)(a)(2). In their response to defendant's omnibus motion, dated December 1, 2003, the People asserted that defendant told one of the police officers at the scene that he had a few drinks. The People resisted a hearing on defendant's motion to suppress on the basis that the two hour rule only applies to chemical tests given post-arrest and does not govern pre-arrest field alcohol tests (page 5 of People's Response).

On December 4, 2003, Judge Marvin granted defendant's motion to suppress the field test results to the extent of ordering a Mapp/Dunaway hearing. Judge Marvin referred the admissibility of the field test to the trial court. The People moved to reargue Judge Marvin's decision. In his affirmation in support of reargument, the Assistant District Attorney stated:

The legislature specifically distinguished between "breath tests" and "chemical tests" in section 1194 of the VTL and only set forth [*2]a probable (reasonable) cause threshold (as well as a "two hour" rule) for chemical tests. If the legislature intended to require probable cause for the police to administer a field breath test, then it would not have created a separate section in the statute for breath tests....A Mapp hearing is only appropriate when the defense is requesting suppression of tangible physical evidence that was recovered from the defendant and that the People seek to introduce at trial. In this case, there is none.

The prosecutor added in a footnote that "a field breath test is a device that is used in part to determine probable cause to make an arrest and administer a chemical test, and it is therefore illogical to require probable cause to administer the breath test."

Judge Marvin granted the motion to reargue but adhered to his original decision granting a Mapp/Dunaway hearing as to the field test results. Citing several cases, Judge Marvin observed that the admissibility of field sobriety tests "is hardly a settled issue."

At the hearing on defendant's motion held on August 9, 2004, the People changed their position and asserted that the field test results were admissible at trial as evidence in chief of intoxication. The parties were directed to submit memoranda of law on this issue.

In the course of the hearing, the People indicated that they wished to introduce the following statements made by defendant in addition to those noticed at arraignment:

1. On July 14, 2003 at 12:20 AM at the scene to Police Officer Maher: I was driving the car on Bartow Avenue. As I entered the intersection of Coop City Boulevard, a guy ran out in front of me and stopped. He made a movement back to the curb and continued into the street. I had no time to stop and ran him over. I had a few drinks. (People's Memorandum of Law, September 24, 2004, pp 42, 47).
2. On July 14, 2003 at 2:25 AM at the scene to Detective Bowden: We were on Bartow Avenue with the green light. The guy was running across the street after the intersection. I was in the middle lane. He slowed down and I swerved to avoid him, but he started again and ran right in front of the car. I was going about 20-30. He was running from my left to right (South). I was drinking. I had two Jack Daniels. (People's Memorandum of Law, September 24, 2004, p. 47).

Upon learning of these unnoticed statements, defendant moved to preclude their use at trial, arguing that the People failed to provide adequate notice pursuant to CPL 710.30(1)(a). The Court held the Huntley hearing in abeyance pending resolution of defendant's preclusion motion. The Court proceeded to hold a refusal hearing, at which Police Officer Fantini testified for the People. I find Officer Fantini credible and make the following findings of fact as to the refusal hearing.

On July 14, 2003 at 12:20 AM, Officer Fantini and his partner received a radio run of a car accident at Coop City Boulevard and Bartow Avenue. When they responded to that location, they observed a pedestrian on the ground and two parked cars, one of which was a silver [*3]Mitsubishi with extensive damage. Officer Fantini walked over to the Mitsubishi and spoke with defendant, who was standing a few inches away from the car. When Officer Fantini asked whether defendant had been driving, defendant replied "yes." Defendant had no trouble standing, his speech was not slurred and there was no other indication that he had consumed alcohol.

Officer Fanini followed an ambulance carrying the pedestrian to Jacobi Hospital. After he was told that the pedestrian had died, Officer Fantini returned to the scene of the accident at about 2:40 AM. He was informed that defendant registered a .166 blood alcohol content on a field test[FN1] and had been placed under arrest. Officer Fantini claimed that at that time, he detected a moderate smell of alcohol on defendant's breath and observed that he had red, bloodshot eyes.

A videotape introduced at the hearing indicates that at approximately 3:38 a.m. on July 14, 2003 at the 45th Precinct, defendant was asked by Officer Ryan of the Highway 1 Unit to submit to a breathalyzer test. Initially, defendant agreed to take the test. After Officer Ryan explained the testing procedure, however, defendant asked Officer Ryan, "should I do this without checking with a lawyer first?" Officer Ryan told defendant it was his choice but that a lawyer would not be allowed in the testing room. Officer Ryan then read defendant instructions advising him of the consequences of refusing to take the test and again asked defendant if he would take the breath test. When the defendant did not respond, Officer Ryan said he needed a yes or no answer. Defendant stated that he wanted to speak with his lawyer first and videotaping was suspended. Defendant was allowed to make telephone calls to his sister but she was unable to find an attorney. Without any further inquiry of defendant, the police determined that he had refused to take a breathalyzer test.

The Court makes finds the following conclusions of law as to (1) the admissibility of the field test; (2) defendant's motion to preclude statements; (3) defendant's motion to suppress evidence of his refusal to submit to a chemical test.

1. Admissibility of the Field Test

In their response to defendant's omnibus motion and again in their motion to reargue, the People emphatically asserted that it was unnecessary to hold a suppression hearing as to the field test because a field test is not a chemical test within the meaning of VTL 1194(2). It was not until the suppression hearing held nine months later that the People reversed their position and argued that the field test does qualify as a chemical test admissible in evidence to prove intoxication.

Pursuant to CPL 60.10, the rules of evidence applicable to civil cases are applicable to criminal proceedings unless otherwise provided by statute or judicially established rules of evidence. In civil cases, the law long has recognized an exception to the hearsay rule for admissions made by a party. Prince, Richardson on Evidence § 8-201, p. 510 (Farrell 11th ed); Matter of MNORX, 46 NY2d 985 (1979). That same rule applies in criminal cases. See, e.g., People v. Brown, 98 NY2d 226 (2002); People v Rivera, 58 AD2d 147 (1st Dept. 1977), affd on op below 45 NY2d 989 (1978).

One species of admissions are informal judicial admissions made by the parties in their written submissions to the court. See Richardson, supra at § 8-219, p. 529. An informal judicial [*4]admission is not conclusive but is evidence of the fact or facts admitted. Richardson, supra , at 530; People v. Brown, supra at 232; People v. Rivera, supra . The declarant may offer an explanation for an admission. Richardson, supra , at § 8-211, p. 520; Jack C. Hirsch, Inc. v. Town of North Hempstead, 177 AD2d 683 (2nd Dept. 1991).

Numerous cases have held that statements made by attorneys in moving papers constitute admissions. People v. Brown, 98 NY2d 226, 232-233 (2002), concerned statements made by counsel in a pretrial motion. Noting that the attorney's statements were made to secure a favorable pretrial ruling, the Court held that these statements could be used to impeach defendant's inconsistent trial testimony. See also Gomez v. City of New York, 215 AD2d 353 (2d Dept. 1995) (statements contained in bill of particulars); People v. Rivera, supra (statement made by attorney in affirmation in support of pretrial motion). Accord Kurten v. R.D. Werner Co. Inc., 139 AD2d 699 (2d Dept. 1988).

In Matter of Liquidation of Union Indemnity Insurance Co., 89 NY2d 94 (1996), the Court of Appeals found that plaintiff made informal judicial admissions in its response to pretrial motions. The case involved the liquidation of Union Insurance Company, a subsidiary of Hall & Co.. When the Liquidator brought an action against Hall for fraud, it submitted affidavits of counsel. Those affidavits asserted that Hall failed to disclose Union's insolvency and planned to use Union for Hall's purposes. After that suit was settled, the respondent reinsurers sought rescission of their agreements with Union. The Liquidator opposed their claim, contending that Union was operated as an independent insurance company and that Union's transactions with Hall met acceptable industry standards.

The Court of Appeals agreed with the Appellate Division and trial court that the facts alleged in the Liquidator's written submissions for the first case were admissible as informal judicial admissions. The Court observed:

It would be unseemly, to say the least, to permit the Liquidator to

renege on its court-submitted evidence and, in effect, to use quasi-official

assertions as both a sword and a shield by simultaneously documenting

Union's fraud and failure to disclose its insolvency and yet later trying to

deny the relevance and applicability of the same admissions and data

in an action involving the reinsurers.

89 NY2d at 103-104.

Following the reasoning of these cases, the statements made by the People in opposition to defendant's omnibus motion and in support of its motion to reargue are informal judicial admissions. As such, they may be considered in determining whether the field test administered to defendant was a chemical test admissible in evidence. While their admission is not conclusive, the People have made no attempt to explain why the position they now espouse diametrically is opposed to their original contention.[FN2] See Matter of Liquidation of Union Ins. [*5]Co., supra at 104 (although given full and fair opportunity, party fails to rebut nonconclusive informal judicial admissions).

The Court acknowledges that the admissions made in the People's original papers could be characterized as conclusions of law rather than as assertions of facts. Nonetheless, the same unseemliness that concerned the Court of Appeals in Union, supra , is present here. It is not fair for the People on the one hand to argue and reargue against a Mapp hearing on the grounds that the field test is not physical evidence admissible at trial and on the other to seek to admit the field test as evidence in chief of intoxication. Cf. People v. Jerrick, NYLJ, Nov 25, 1996, at 34, col 5 (Sup Ct, Kings County) (People estopped from claiming in suppression hearing that charges are unrelated where People earlier affirmed that charges were related for purposes of consolidation). The Court accordingly will take the People's admission into account in determining whether the field test qualifies as a chemical test within the meaning of VTL 1192(2).

Article 31 of the Vehicle and Traffic Law provides an elaborate statutory scheme for proving and punishing offenses involving alcohol and drugs

Section 1194 of the Vehicle and Traffic Law is entitled "Arrest and testing." VTL 1194(1)(a) provides that the police may arrest a person for the violation of driving while impaired if there has been an accident and the police have reasonable cause to believe that the person violated VTL 1192(1). The police have this authority even if they have not witnessed the violation, an exception to the general rule that a violation must be committed in an officer's presence [see CPL 140.10(1)(a)].

Subdivision two(b) of VTL 1194 provides:

(b) Report of refusal. (1) If: (A) such person having been placed under arrest; or (B) after a breath test indicates the presence of alcohol in the person's system; or (C) with regard to a person under the age of twenty-one, there are reasonable grounds to believe that such person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article; and having thereafter been requested to submit to such chemical test and having been informed that the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked ... whether or not the person is found guilty of the charge for which such person is arrested or detained, refuses to submit to such chemical test or any portion thereof, unless a court order has been granted pursuant to subdivision three of this section, the test shall not be given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made.

It long has been recognized that the purpose of a field test is to provide probable cause for defendant's arrest, rather than to serve as evidence at trial. In People v. Thomas, 70 NY2d 823 (1987), the Court of Appeals ruled that it was error to admit evidence of an alcosensor test. The Court reasoned that the sole purpose of this evidence was to establish that the police had cause to [*6]administer a breathalyser test, an issue not relevant to whether defendant committed the crime of driving while intoxicated. See also People v. McDonald, 227 AD2d 672 (3nd Dept. 1996), affd 89 NY2d 908 (1996) (results of alcohol prescreening device not admissible to prove intoxication); People v. Wright,

1 Misc 3d 133(A) (App Term, 9th and 10th Jud Dists 2003) (error to admit results of alcosensor test, although deemed harmless). Numerous trial courts as well as courts of other States have agreed that the results of a test administered at the scene of an accident are not admissible at trial.[FN3]

The commentary to VTL 1194(1)(b) similarly concludes that the field tests results should not be admitted at trial, stating:

[The] breath test, sometimes called a screening test, involves a portable

machine which is used by the police on the road to determine whether there is

alcohol present in the motorist being tested. The screening or breath test machine

is used as a pass/fail test and is basically reliable for the determination of some presence of alcohol in a person's blood but not the actual percentage or concentration....While the cases differ, it would appear that the majority and the better view is that the breath

or alcosensor test results should not be admissible in evidence

Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A, VTL 1194, at 91-92 (1996 ed).

As the People originally maintained, VTL 1194 distinguishes between field tests and chemical tests. Thus, VTL 1194(2)(a)(2) provides that any driver is deemed to have consented to a chemical test of his breath within two hours after a breath test authorized by VTL 1194(1)(b) indicates he has consumed alcohol. VTL 1194(2)(f) allows the People to introduce evidence of a driver's refusal to submit to a chemical test if he refuses to take a chemical test after being given clear and unequivocal warnings of the effect of such refusal. VTL 1195(1), entitled "Chemical test evidence," allows the introduction of evidence of blood alcohol content "as shown by a test administered pursuant to [VTL 1194]."

The statute further requires the Department of Health to issue rules and regulations approving satisfactory methods of conducting chemical analyses of a person's breath [VTL 1194(4)(c)]. The rules and regulations of the Department of Health governing the administration of chemical tests are set out in Part 59 of Title 10 of the New York Codes Rules and Regulations. 10 NYCRR 59.1 defines a "chemical test" as including breath tests conducted on instruments found on the Conforming Products List of Evidential Breath Measurement Devices, as [*7]established by the United States Department of Transportation. 10 NYCRR 59.4(b) provides that the Department of Health has adopted the United States Department of Transportation's list of approved breath testing instruments and that unless otherwise noted, those devices are approved both for mobile and nonmobile use. The Intoxilyser S-D2 is included on that list.

The Department of Health regulations themselves recognize the distinction between preliminary screening tests and chemical tests. 10 NYCRR 59.5 provides that a breath sample shall be collected within two hours of the time of arrest "or within two hours of a positive breath alcohol screening test." This subsection also requires that the driver be under continuous observation for 15 minutes prior to a chemical test, that a system purge immediately must precede both the test and analysis of the reference sample and that analysis of a reference standard be made and recorded immediately prior to or following the breath test.[FN4]

The statutory scheme set out in VTL 1194 and 1195 clearly contemplates the following sequence of events:

1. The police arrive at the scene of an accident;

2. Based on the fact that the driver has been involved in an accident, the driver is asked to submit to a field test of his breath [VTL 1194(1)(b)];

3. Within two hours after a field test indicates the consumption of alcohol, the driver is asked to submit to a chemical test and is given warnings as to the consequences of refusing to take a chemical test [VTL 1194(2)(a)(2), 1194(2)(f)];

4. If defendant does not refuse to take a test, a chemical test is conducted in accordance with the provisions of VTL 1194(2);

5. Evidence of a test administered pursuant to VTL 1194 is admissible in evidence at a trial for violation of VTL 1192 [VTL 1195(1)].

The position urged by the People does violence to this statutory scheme and is contrary to the weight of judicial authority construing VTL 1194. Clearly, the Legislature intended to differentiate between preliminary tests done at the scene of the crime and those conducted back at the station house. The obvious rationale for this distinction is that the conditions surrounding a field test do not give the same assurance of reliability and accuracy as those in a controlled environment.

The People's reliance upon People v. Monahan, 25 NY2d 378 (1969) and People v. Hampe, 181 AD2d 238 (3d Dept.1992) is misplaced. In Monahan, a sample of defendant's blood was taken by a physician and analyzed by a laboratory assistant. The sole issue on appeal was whether the People could lay the foundation for the admission of the test results without introducing documentary proof of the rules and regulations of the police department adopted pursuant to VTL 1194(1). The Third Department concluded that the People need not introduce such rules and regulations, provided the customary foundation for admitting scientific evidence exists. Monahan thus did not concern the admissibility of field tests. [*8]

Hampe similarly did not involve a test conducted in the field. In Hampe, defendant was arrested after the police conducted coordination tests in the field. The disputed breath test was administered at the police substation.[FN5] The only question addressed in Hampe was whether the inclusion of a breath testing instrument in the list of devices approved by the Department of Health dispenses with the need for expert testimony as to the accuracy and reliability of the device. The Third Department's holding that expert testimony is not necessary to establish the foundation for admitting a breath test conducted with an approved instrument in no way concerns the admissibility of a test conducted in the field with such an instrument.

None of the other cases cited by the People holds that a breath test conducted at the scene of an accident is admissible at trial as evidence of defendant's intoxication. In People v. DeMarasse, 85 NY2d 842 (1995), defendant was removed to Central Testing at police headquarters for a breath test after he failed field sobriety tests. Similarly, in People v. Seide, 5 Misc 3d 395 (Just Ct, Tioga County 2004), defendant's breath was tested at the State Police substation. People v. O'Brien, 2001 WL 1722772 (Erie County Ct) distinguishes cases involving alcosensor prescreening devices used in the field from the BAC Datamaster at issue in that case. There is no indication in People v. Holmes, 171 Misc2d 962 (Just Ct, Monroe County 1997) that the disputed test was conducted on the scene.

After considering the statute, the case law, and the submissions of the parties, including the People's unexplained admission that field tests are not admissible, the Court concludes that field test results cannot be introduced as evidence in chief of defendant's intoxication.

2 Defendant's Refusal to Submit to a Breathalyzer Test

A person who has been arrested for driving while intoxicated has the right to speak with an attorney before deciding whether to take the chemical test. See People v. Gursey, 22 NY2d 224, 229 (1968). Gursey cautioned, however, that the right to counsel does not give defendant an absolute right to refuse to take a test until a lawyer appears and may not be used to delay a timely test.

It is well settled that an individual may not condition his consent to a blood alcohol test on first consulting with an attorney. See People v. Monahan, 295 AD2d 626 (2d Dept. 2002). See also Matter of Boyce v. Commissioner of N.Y.S. Dept. Of Motor Vehicles, 215 AD2d 476, 477 (2d Dept. 1995); Matter of Cook v. Adduci, 205 AD2d 903 (3d Dept. 1994). In this case, the defendant was afforded the opportunity to contact an attorney. He also was given clear and unequivocal warnings of the consequences of refusing to take the breathalyzer test, as required by VTL 1194(2)(f). Under these circumstances, defendant's response to the police that he wanted to speak with an attorney before taking the test correctly was deemed to be a refusal to submit to the test and such refusal is admissible in evidence.

3. Defendant's Motion to Preclude Statements

CPL 710.30(1)(a) requires the People to serve notice of their intention to introduce evidence of statements made by defendant to law enforcement. The People must serve this notice within 15 days of arraignment [CPL 710.30(2)]. The purpose of the statute is to give defendant adequate time to investigate the circumstances under which a statement was made and to allow defendant adequate time to prepare for a hearing as to the statement's voluntariness. [*9]CPL 710.30(1)(a) also permits an orderly hearing and determination of the voluntariness of statements prior to trial. People v. Briggs, 38 NY2d 319, 322-323 (1975).

Defendant asserts that statements not noticed at arraignment must be precluded because the People failed to comply with CPL 710.30(1)(a). The People counter that the notice given at arraignment was sufficient to apprise defendant of the existence of the unnoticed statements. The People also oppose preclusion on the ground that the unnoticed statements were included in the superceding accusatory instrument and in the People's response to defendant's omnibus motion.

The absence of timely notice pursuant to CPL 710.30(1)(a) cannot be cured by documents turned over in discovery or recited in an accusatory instrument. See People v. Lopez, 84 NY2d 425, 428 (1994); People v. Phillips, 183 AD2d 856 (2d Dept. 1992); People v. Calise, 167 Misc2d 277, 280 (Crim Ct Bronx County 1996) (Sussman, J.). Nor does the absence of prejudice to defendant relieve the People of their obligation to provide timely notice. People v. Lopez, supra .

Notwithstanding the lack of timely notice, the courts have held that CPL 710.30(1)(a) is not violated if the unnoticed statements substantially are consistent with statements that properly were noticed. See People v. Cooper, 78 NY2d 476, 484 (1991); People v. Bennett, 56 NY2d 837, 839 (1982). The cases in which this principle has been applied generally involve additional statements made to the same police officer in the course of a single conversation. See, e.g., People v. Cooper, 78 NY2d 476, 484 (1991); People v. Garcia, 290 AD2d 299 (1st Dept 2002); People v. Morris, 248 AD2d 169 (1st Dept 1998); People v. Martinez, 203 AD2d 212 (1st Dept 1994).

An alternative exception to the requirements of CPL 710.30(1)(a) has been recognized where the People serve notice of a statement in one form but fail to notice a substantially similar statement in another form. See, e.g., People v. Bennett, 56 NY2d 837 (1982) (oral statement substantially same as written confession); People v. Valdivia, 236 AD2d 225 (1st Dept 1997) (statements in written form substantially consistent with noticed statements); People v. Kelly, 200 AD2d 440 (1st Dept 1994) (videotaped statement substantially identical to noticed statements). But see People v. Phillips, 183 AD2d 856, 858 (2d Dept 1992) (notice of videotape did not satisfy CPL 710.30(1)(a) as to oral statement).

The unnoticed statement to Officer Maher at the scene of the accident falls within this first line of cases. The statement is more incriminating because defendant admits that he was drinking. It is consistent, however, with the defendant's noticed statement to Sgt. Daskalakis that he was at a bar and appears to have been made at the same time and place as the noticed statements.

The unnoticed statement to Detective Bowden is more problematic. It was made two hours later and to a different police officer than the noticed statements and thus does not fall squarely within either of the recognized exceptions to the requirements of CPL 710.30(1)(a). In People v. Poole, 10 AD3d 581 (1st Dept 2004), however, the Appellate Division found that the statute was satisfied where defendant's statements to a detective were similar to noticed statements made to other officers earlier in time. A review of the briefs submitted in Poole reveals that the People indicated in their Voluntary Disclosure Form that they intended to introduce evidence of the following three statements (Brief for Respondent at 28-29):

1. May 17, 2002 at about 10:30 a.m., to Police Officer Andrew Lewis, in [*10]response to a question by the officer about whether defendant had anything sharp in his pocket, defendant stated, in substance, "Like a razor blade, no I got rid of that. I'm gonna deny I cut her. I just feel bad about the old man. I didn't mean to cut him."
2. May 17, 2002, at about 11:00 a.m., to Police Officer Andrew Lewis, defendant stated, in substance, "I had a gun with me, but I got rid of it. I threw it near the dumpsters at 103 and Park. I had another gun when I was in the apartment where you arrested me, But I threw it out the window before you came in."
3. May 17, 2002 at about 10:30 to Police Officer Lee, defendant stated, in substance "I wanted to kill Shameika Wilson. I think she was trying to set me up. I bought a gun out of state and threw it out the window. I had a gun with me when I sliced her face and I threw it in the dumpster."

The unnoticed statement at issue in Poole was made to Detective Leahy at 11:45 AM at the precinct. Defendant told Detective Leahy that he "hooked up " with Sameika Nelson a few days before May 17, when the couple ate at a restaurant together. On May 17, defendant went to Nelson's building and waited outside of her apartment until she emerged. After Nelson entered an elevator, defendant ran downstairs to a lower floor and pressed the elevator button. When the elevator arrived, defendant dragged Nelson off the elevator and slashed her. Nelson's father and children appeared, after which the razor was kicked out of defendant's hand, and defendant "blacked out" (Brief for Respondent at 32-33).

The facts in Poole are close to those here. While defendant's statement to Detective Bowden was made about two hours later in time and contains more inculpatory details, it is consistent with and similar to the statements noticed at arraignment. Accordingly, the Court finds that the People did provide sufficient notice of all of defendant's statements and defendant's motion to preclude is denied. Having denied preclusion, the Court directs a Huntley/Dunaway hearing as to defendant's statements.

This constitutes the decision and order of the Court.


Megan Tallmer, J.S.C.

Dated: December 15, 2004




Footnote 1:The People assert and defendant does not dispute that the field test was performed with an Intoxilyser S-D2.

Footnote 2:The issue as to the change in the People's position was raised at the hearing on August 9, 2004. On September 24, 2004, the People filed a voluminous Memorandum of Law addressed to the field test issue. A Supplemental Memorandum of Law was filed on October 14, 2004. On November 18, 2004, the People filed a Response to Defendant's Memorandum of Law. None of these submissions makes any reference to or attempts to explain the People's about-face.

Footnote 3:See People v. Ronald Schwartz, ___AD2d ____, 783 NYS2d 806 (1st Dept. 2004) (challenge to admission of field test academic where court specifically disclaimed reliance upon the results); People v. Gray, NYLJ, Jan.18, 2002, at 19, col 3 (Sup Ct, Kings County) (People concede alcosensor unreliable); People v. Cannella, NYLJ, Apr. 12, 1994, at 25, col. 3 (County Ct., Nassau County) (preliminary breath test unreliable and inadmissible); Boyd v. City of Montgomery, 472 So2d 694 (1985) (results of roadside alcosensor unreliable); Iowa v. Thompson, 357 NW2d 591 (1984) (not harmless error to admit preliminary breath screening test); Nebraska v. Smith, 218 Neb 201 (1984) (error to admit results of preliminary breath test).

Footnote 4:The People concede that the field test failed to comply with 10 NYCRR 59.5(d), but argue that such failure does not preclude admissibility (People's Response, November 18, 2004, at 3). In People v. Aldrich-O'Shea, NYLJ, Dec 14, 2004, at 32, col 4 (App Term, 9th and 10th Jud Dists 2004) however, the Appellate Term held that the results of blood tests improperly were admitted where the People failed to show compliance with the regulations of the Department of Health.

Footnote 5:These facts were obtained from the briefs to the Third Department in People v. Hampe.