Defendant is charged with Reckless Endangerment, Reckless Driving, and two counts of Operating a Motor Vehicle While Under the Influence of Alcohol. See Penal Law § 120.20; Vehicle and Traffic Law §§ 1212, 1192(3) and 1192(1). Defendant moved to suppress evidence of his refusal to submit to a breathalyzer test and a statement he allegedly made to a police officer. On March 13 and 15, 2007, this Court conducted a combined Huntley/Dunaway and refusal hearing. For the reasons set forth below, defendant's motion to suppress is denied.

The sole witness was Police Officer Jason Daly ("Daly"). The Court finds Daly to be credible and credits his testimony in all material respects. Defendant presented no evidence.

Daly has been a police officer with the New York City Police Department for approximately three and one-half years. On May 30, 2006, Daly was working in a marked police car with Police Officer Fernando Colon in the 46th Precinct. At approximately 5:17 P.M., the officers received a radio run about a dispute involving a traffic enforcement agent near 240 Echo Place. Upon arriving at the scene, Daly saw two traffic enforcement agents standing on the north side of Echo Place and defendant on the south side of that street. Colon approached the agents, and Daly approached defendant.

Daly asked defendant what had happened. Defendant told Daly that he had gotten into a dispute with a traffic agent and that he had "Internal Affairs" on the phone. Daly observed that defendant had bloodshot eyes, semi-slurred speech, a strong smell of alcohol on his breath, and an unsteady gait. Daly concluded that defendant was intoxicated. Daly then conferred with Colon. Colon advised Daly that the traffic enforcement agents had informed him that, after being given a traffic ticket on East Tremont Avenue, "defendant chased the traffic agent onto Echo [Place] in the defendant's own motor vehicle." See Minutes, 3/13/2007, at p. 8. Colon and Daly placed defendant under arrest. At that point, the "[d]efendant asked why he was being arrested." See id. at p. 9. After being told of the basis for that action, defendant stated in substance that he could not be arrested because the officers had not seen him driving. The arrest occurred at approximately 5:27 P.M. [*2]

The defendant was then taken to the 45th Precinct for a breathalyzer test. The attempt to administer the test was recorded on video. The video, which was received into evidence at the hearing, shows that the police asked the defendant to submit to the test at 9:05 P.M., that the defendant refused, and that the police officer administering the test duly warned the defendant of the consequences of a refusal. Specifically, defendant was informed that, if he refused, his driver's license would be suspended immediately and then revoked, whether or not he ultimately was found guilty, and that the refusal could be used against him at his trial. The defendant refused again to take the breathalyzer test. The refusal occurred more than two hours after the arrest.

For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statements were voluntary. People v. Huntley, 15 NY2d 72, 78 (1965). As to the Dunaway 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 officers acted illegally. The People have met both their burden of proof on the Huntley issue and their burden of going forward on the Dunaway issue. In addition, the People have established that defendant persisted in refusing to take the breathalyzer test despite being given appropriate warnings in clear and unequivocal language, rendering the refusal admissible. See VTL § 1194(2)(f). Although the breathalyzer test was offered more than two hours after defendant was arrested, the Court concludes that this does not warrant suppression of the refusal.

First, as to the Huntley portion of the hearing, the People have shown beyond a reasonable doubt that the encounter was not unconstitutionally or factually coercive, and that defendant's statements were made voluntarily. The defendant's first statement that he was in a dispute with a traffic agent and had gotten Internal Affairs on the phone was made to Daly when he was initially investigating what happened and before defendant was arrested. Thus, it was not the result of custodial interrogation, and Miranda warnings need not have been given at that point. The defendant's second statement that he could not be arrested because the officers did not see him driving also was voluntary. Although defendant was handcuffed by that point, he was not asked any question before he made the statement; thus, there was no legal requirement that Miranda warnings be administered. Rather, defendant himself had asked the police officers why he was being arrested, and his statement was made spontaneously after the officers simply responded to his question. Since defendant's remark was spontaneous, the statement was voluntary and not subject to suppression on Huntley grounds. People v. Rodney, 85 NY2d 289, 292-93 (1995); People v. Watts, 309 AD2d 628 (1st Dept.), appeal denied, 1 NY3d 582 (2003).

Second, the People presented ample evidence to meet their burden of going forward on the Dunaway issue. Daly testified that the defendant exhibited classic signs of intoxication, and Daly was informed by Colon that a traffic enforcement agent had personally observed defendant driving a motor vehicle. Pursuant to the "fellow-officer" rule, Daly was entitled to rely upon what Colon had told him and to act upon it, provided that this information, either standing alone or coupled with Daly's own observations, established probable cause. See People v. Dickerson, 20 AD3d 359, 359-60 (1st Dept.), appeal denied, 5 NY3d 852 (2005). Since Colon's conversation with the traffic enforcement agent supplied sufficient reason to believe that [*3]defendant had been driving a car just before Daly saw him in an intoxicated condition, the officers had ample probable cause to make the arrest. Hence, the People have met their burden of going forward with evidence tending to show that the arrest was lawful.

Finally, the videotape demonstrated that defendant persisted in his refusal to take the breathalyzer test after being given clear and unequivocal warnings of the consequences. See VTL § 1194(2)(f). The mere fact that the refusal occurred more than two hours after defendant was arrested does not require suppression of the refusal. While there is a split of authority on this issue, the more persuasive cases hold that otherwise-admissible refusals should not be suppressed solely because they have occurred more than two hours following a defendant's arrest. People v. Torres, 2004WL2339812 (Crim. Ct. Queens Co. 2004); People v. Ward, 176 Misc 2d 398 (Sup. Ct. Richmond Co. 1998); see also People v. Burns, 2006WL2660913 (Dist. Co. Nassau Co. 2006). But see People v. Morris, 8 Misc 3d 360 (Crim. Ct. Richmond Co. 2005); People v. Kenny, 2005WL2148893 (Crim. Ct. Richmond Co. 2005). The motion to suppress the refusal is therefore denied. Although defense counsel would have the Court go beyond the suppression motion and hold that, as an evidentiary matter, the purported delay in offering the test renders the refusal inadmissible on the theory that the risk of undue prejudice outweighs the probative value of such evidence, that issue falls within the province of the trial judge in this case. I therefore express no opinion on that issue.

The motions to suppress are denied in all respects.

The foregoing constitutes the Decision and Order of the Court.

Dated:March 15, 2007

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J.