The defendant herein, Patrick S. Gammon, is charged with VTL 1192.03, occurring February 13, 2012 at approximately 11:10 pm at 228 S/B CR 46, Shirley, Town of Brookhaven, Suffolk County. On June 19, 2012 a Dunaway/ Mapp/ Huntley/ Refusal hearing was held before this court to determine the admissibility at trial of evidence obtained from this defendant. Testifying on behalf of the People was Officer Christopher Sanchez of the Suffolk County Police Department.

Officer Sanchez testified credibly that on February 13, 2012 he was employed by the Suffolk County Police Department working a 9 pm to 7 am shift. He was alone in a marked vehicle in uniform when he responded to a 911 call and arrived at the 7-11 convenience store located at 228 SB William Floyd Pkwy, Shirley, New York. Off duty National Park Service Officer Steven Olijnyk, who had placed the 911 call, was already on scene. Mr. Gammon was leaning against the hood of a gray Cadillac that was parked in a row of parking spaces at the entrance of the store.

Officer Sanchez separated Officer Olijnyk and Mr. Gammon, first questioning the reporting officer. Officer Olijnyk stated he first observed Mr. Gammon overshoot a parking space, driving a concrete barrier into the under carriage of the gray Cadillac. Mr. Gammon then reversed off the parking barrier at a rapid rate of acceleration prompting the off duty officer to [*2]follow the vehicle to the 7-11. After Mr. Gammon exited the 7-11, Officer Olijnyk identified himself as a law enforcement officer. Making note of Mr. Gammon's staggered walk and bloodshot eyes, Officer Olijnyk asked if Mr. Gammon should be operating the vehicle, to which Mr. Gammon responded in the negative, adding that he was drunk.

Next, Officer Sanchez approached the driver Officer Olijnyk had identified to be the intoxicated driver he had reported, and had the driver produce his license, which identified him as Patrick S. Gammon. Officer Sanchez observed Mr. Gammon's eyes as bloodshot and glassy, his speech slurred and mumbled, and his breath scented with alcohol. In addition, the officer noticed Mr. Gammon's need to lean on the vehicle to steady himself.

When Officer Sanchez attempted to conduct the Standardized Field Sobriety Tests (SFSTs), Mr. Gammon was unable to stand on his own and refused to submit to the SFSTs. Shortly thereafter, Mr. Gammon refused to cooperate when Officer Sanchez attempted to administer a portable breath test. In addition to Mr. Gammon's general refusal to the standard screenings for intoxication, he told Officer Sanchez, "I'm drunk but you didn't see me driving, so you got nothing."

After all these events, Officer Sanchez determined defendant was intoxicated and placed Mr. Gammon under arrest at 11:46 pm and transported him to the Seventh Precinct.

At the precinct, Officer Sanchez read Mr. Gammon the chemical test warnings verbatim and advised him of his rights and the consequences of a refusal. The officer completed the standard Alcohol/Drug Influence Report (AIR). Mr. Gammon's first refusal occurred at approximately 12:05 am and his response to the officer was, "I don't give a flying fuck about that test." In addition, Mr. Gammon refused to sign the AIR in accordance to his refusal. Mr. Gammon's second refusal occurred at approximately 12:10 am, to which he had the same explicit reaction and grew more agitated. Due to this increased level of agitation demonstrated by Mr. Gammon, Officer Sanchez did not make a third attempt at getting Mr. Gammon to submit to a breath test. The AIR notes the times two refusals, Mr. Gammon's response, and the word "refuse" in both locations where his signature should have appeared.

CONCLUSIONS OF LAW

The Arrest

The statements made by Officer Olijnyk in his sworn deposition, while considered hearsay, are nonetheless admissible at a hearing to support a showing of probable cause for the defendant's arrest under CPL § 710.60 (4). Officer Olijnyk's observations of reckless driving sworn to in his submitted Supporting Deposition, in addition to Officer Sanchez's observations of Mr. Gammon's physical condition, the scent of alcohol on his breath, and the defendant's admission of being drunk when refusing all SFSTs, gave probable cause to place Mr. Gammon under arrest for driving while intoxicated. People v. Kowalski, 291 AD2d 669 (3d Dept. 2002); People v. Lamb, 235 AD2d 829, 830-31 (3d Dept. 1997); People v. Kalwiss, 6 Misc 3d 129 (A), 2005 NY Slip Op. 50057(U) (App. Term 2d Dept., 9 & 10th Jud. Dists. 2005); People v. [*3]McLaney, 135 AD2d 901 (3d Dept 1987).

The Refusal

Under VTL § 1194(2)(a) evidence of the defendant's refusal to submit to a chemical test is admissible at trial if the People are first able to make a showing that the request for these tests were made within two hours of the defendant's arrest or breath test. Next, the People must additionally fulfill their burden of proof by showing the defendant was given adequate warning of the effect of the defendant's refusal, VTL 1994 (2)(a); People v. Brol, 81 AD2d 739 (4th Dept 1981), affd as modified 89 AD2d 813 (1982) and that the defendant persisted in his or her right to refuse the chemical test. VTL 1194(2)(f); see also People v. Thomas, 46 NY2d 100, 108 (1978), app. dsmd. 444 US 891 (1979). Such a persistent refusal can be demonstrated by the defendant's verbal responses or observed conduct. See People v. Richburg, 287 AD2d 790, at 792 (3rd Dept 2001), lv app den 97 NY2d 687 (2001); People v. D'Angelo, 244 AD2d 788, at 789 ( 3rd Dept. 1997), lv app den 91 NY2d 890 (1998).

Here, the arrest occurred at 11:46 pm. The warnings were first read to Mr. Gammon at 12:05 pm and he responded verbally with the previously mentioned expletive statement that is noted on the AIR along with his refusal to sign the required fields of the AIR. The warnings were then read again to Mr. Gammon at 12:10 pm and both his verbal response and conduct were identical to his first refusal, however, this time they were conveyed with increased agitation. Due to the defendant's emotionally excited state, Officer Sanchez did not find it necessary to repeat this process a third time in order to establish the defendant's refusal to submit. The People have successfully made a showing of each requisite element of a persistent refusal, and therefore the evidence of such will be admissible at trial.

Defendant's Statements

Mr. Gammon's statements made at the 7-11 convenience store regarding his beliefs that Officer Sanchez did not have the authority to arrest him despite his intoxication were made voluntarily during the course of Officer Sanchez's investigation and were not obtained by unfairness or coercion. Therefore, Mr. Gammon's statement regarding his state prior to the arrest is admissible, and the motion to suppress for lack of probable cause is denied in all respects.

Accordingly, after hearing and evaluating all of the testimony presented herein, this Court finds that probable cause existed for the defendant's arrest and the defendant's motion to suppress evidence obtained as a result of the same is denied. The defendant's motion to suppress his statements and evidence of his refusal to submit to a chemical test are also denied.

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