The People of
the State of New York,
against
Lawrence White, Defendant.
|
1785-2013
Kalle Condliffe, Esq.
The Legal Aid Society
718-579-3154
Justin Daly
Assistant District AttorneyOffice of the Bronx District Attorney
718-838-7562
Richard L. Price, J.
Defendant is charged with operating a motor vehicle while under the influence of
alcohol (Vehicle and Traffic Law § 1192 [2] and [3], both as "E" felonies, two
counts of aggravated unlicensed operation of a motor vehicle in the first degree (VTL
511 [3] [a] [i]) and other related charges. Defendant moved for suppression of physical
evidence recovered from his vehicle, the results of the chemical blood-alcohol breath
test, and statements made by him to the arresting officer on the basis that they were
unlawfully obtained in violation of the Fourth Amendment of the United States
Constitution and article I, § 12, of the New York State Constitution, claiming they
were improper and fruits of an unlawful arrest. Specifically, the defendant contends that:
(1) his arrest was not supported by the requisite probable cause; (2) there was an
insufficient basis to request he submit to a chemical breath test; (3) the results of the
Intoxilyzer must be suppressed as a violation of VTL 1194 (2) (a); (4) the search of his
vehicle and recovery of a bottle of alcohol was unlawful; (5) his statements were the
product of a custodial interrogation obtained without Miranda warnings.
The District Attorney contends that the defendant's arrest was based upon sufficient
probable cause, that there was a legally sufficient basis upon which to administer the
Intoxilyzer test, that it was administered in accordance with VTL 1194 (2) (a), that the
search of defendant's vehicle was proper, and that any statements made in connection
with his arrest were not subject to the Miranda requirement.
On October 22, 2014, this court conducted a combined
Mapp/Huntley/Dunaway hearing.[FN1]
The People called one witnesses: Police Officer Fredery Alvarez (PO Alvarez), assigned
to the 50 Precinct. Upon the close of testimony, this court adjourned the matter until
October 23, 2014, at which time oral argument was heard from both the defendant and
the People. This court finds the testimony of PO Alvarez credible to the extent indicated
herein. The defendant did not call any witnesses.
Based upon the evidence presented, and the parties' arguments, this court finds that:
(1) defendant's arrest was supported by probable cause; (2) there was a reasonable basis
to request he submit to a chemical blood-alcohol breath test; (3) the Intoxilyzer test was
administered in compliance with VTL 1194 (2) (a); (4) the People failed to satisfy their
burden of establishing that the recovery of a bottle of E & J alcohol from his vehicle
was lawful; and, (4) defendant' statement, "I had a few sips," was the product of the
unlawful search and obtained pursuant to a custodial interrogation absent the requisite
Miranda waiver.
Findings of
Fact
May 3, 2013, PO Alvarez, and his partner, PO Reyes,
assigned to the 42 Precinct Bronx Impact Response Team, were dressed in full uniform
and on routine patrol in a marked police vehicle (H. 4). At approximately 10:13 p.m.,
POs Alvarez and Reyes were in the vicinity of Freeman Street and Southern Boulevard in
Bronx County when PO Alvarez observed the defendant driving a Black, 2010 Chrysler
with "heavily tinted windows" travelling westbound on Freeman Avenue. PO Alvarez,
who was driving, testified that he followed the defendant's vehicle, stopping him
approximately three blocks later on Freeman Avenue and Chisholm Street (H. 6).
PO Alvarez testified that after pulling over the defendant, he approached the
vehicle on the driver's side while PO Reyes approached on the passenger's side. PO
Alvarez stated that upon approaching the vehicle, he asked the defendant for his license
and registration. Unable to produce them, the defendant, who was alone in [*2]the vehicle, replied, "I am suspended" (H. 7). PO Alvarez
stated at that point he smelled the odor of alcohol emanating from the defendant's breath,
and observed him to have "red . . . bloodshot, watery eyes, [and] slurred speech." PO
Alvarez testified he then ordered the defendant out of the car, and instructed him to stand
at the rear of the vehicle. Upon PO Alvarez's request for identification, the defendant
produced an EBT benefit card bearing his photograph and date of birth. PO Alvarez then
verified that the defendant's license had in fact been suspended (H. 6).
At this point, according to PO Alvarez, PO Reyes recovered a bottle of E
& J alcohol from inside the defendant's vehicle whereupon PO Alvarez asked the
defendant if he had been drinking, to which the defendant replied, "I had a few sips" (H.
7). PO Alvarez then asked the defendant whether he had been previously arrested for
DWI, to which the defendant responded in the affirmative. PO Alvarez then tested the
window tinting of the defendant's vehicle with a tint meter. The result was that it
permitted only 27% light to pass through, which was well below the legal limit (H. 8).
PO Alvarez stated that he issued the defendant a summons for the illegal tinting.
Sergeant Alston, who had arrived at the location, administered a Portable Breathalyzer
Test (PBT) to the defendant (H. 7, 13). The defendant blew a .10, was placed under
arrest for operating a motor vehicle while under the influence of alcohol (H. 9).
The defendant was subsequently transported to the 45 Precinct for the purpose of
administering an Intoxilyzer breath test. PO Alvarez further verified that the defendant's
license was indeed suspended, and Sergeant Alston administered the Intoxilyzer breath
test; the defendant blew a .09 (H. 9-10). PO Alvarez then transported the defendant to the
42 Precinct for arrest processing (H. 11).
Conclusions of
Law
Probable Cause
CPL 140.10 (1) (b) provides, "[s]ubject to the provisions of subsection two, a police
officer may arrest a person for: A crime when he has reasonable cause to believe that
such person has committed such crime, whether in his presence or otherwise." Probable
cause, or reasonable cause, does not require proof "sufficient to warrant a conviction
beyond a reasonable doubt but merely information sufficient to support a reasonable
belief that an offense has been or is being committed . . . The legal conclusion is to be
made after considering all of the facts and circumstances together" (People v
Bigelow, 66 NY2d 417, 423 [1985], quoting People v McRay, 51 NY2d 594,
602; see also People v Maldonado, 86 NY2d 631, 635 [1995]).
At a suppression hearing, the People have the burden of presenting evidence of
reasonable cause to show the legality of the police conduct (People v Baldwin, 25
[*3]NY2d 66 [1969]; People v Malinsky, 15
NY2d 86 [1965]). The People must, therefore, demonstrate that the police acted with
probable cause when they arrested the defendant (People v Bouton, 28 NY2d 130
[1980]; People v Berrios, 28 NY2d 361 [1974]). Once this burden has been met,
the defendant is responsible for proving the conduct was illegal (Berrios, 28
NY2d at 361; Baldwin, 25 NY2d at 66). Evidence obtained by an
unconstitutional search is inadmissible and vitiates conviction (see Mapp v Ohio,
367 US 643 [1961]).
In sustaining their burden, the People must demonstrate that the circumstances
authorized the officer's behavior. In assessing the scope of intrusion permissible under a
given set of circumstances, the New York Constitution contemplates weighing the
officer's safety and the public interest against the individual's personal liberty (People
v De Bour, 40 NY2d 210 [1976] [citing Terry v Ohio's federal requirement
of balancing the interests involved in a police inquiry]). In contrast to the Federal
Constitution's emphasis on officer safety in search and seizure matters, the New York
Constitution affords greater protection to an individual's privacy (see Peter Preiser, 2010
Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 140.50).
Accordingly, New York has adopted standards considerably more protective of
individual liberty than federal precedent mandates (id.).
De Bour establishes the basic framework for measuring the intrusiveness of a
police action in New York (id.). The first level of intrusion permits a law
enforcement officer to approach a citizen and request information provided there is an
objective, credible, and articulable reason to do so (id. at 223). The second level,
the common-law right of inquiry, permits a momentary stop when there is a "founded
suspicion that criminal activity is afoot" (id.). Under the third level, an officer
may forcibly stop and detain a person when such officer has a reasonable suspicion that
the individual has committed, is committing, or is about to commit a felony or
misdemeanor (id.). Finally, an officer may initiate an arrest when there is
probable cause to believe that an individual has committed, is committing, or is about to
commit a crime (id.).
Regarding automobile stops, the police must possess an articulable basis for
requesting information from occupants of a vehicle that has been approached but not
seized (People v Ocasio, 85 NY2d 982 [1995]). In other words, there must be an
objective, credible reason not necessarily indicative of criminality (id.). Initial
questioning, limited to a request for identification, is consistent with a request for
information (People v Hollman, 79 NY2d 181, 185, 191 [1992]). Therefore, an
officer's demand for a license constitutes a level-one request for information (People v Thomas, 19 AD3d
32 [1st Dept 2005]).
Here, the People presented sufficient evidence that the approach of the defendant
was proper based upon the observations of PO Alvarez. He observed the defendant
driving with heavily tinted windows in violation of VTL 375 (12) (a)-(b). PO Alvarez
further observed the defendant, who was the sole occupant of the vehicle, to have red,
watery, bloodshot eyes with an odor of alcohol emanating from [*4]him, and slurred speech. And, in response to PO Alvarez's
request for the defendant's license and registration, the defendant responded that it had
been suspended.
Defendant contends the absence of any testimony that PO Alvarez remembers the
specific window that was tinted or whether the windows were up or down prevents him
from affirmatively establishing that he indeed stopped him as a result of a traffic
violation. This, however, is simply incorrect.
The record sufficiently establishes that the window was tinted in violation of the
Vehicle and Traffic Law. PO Alvarez's initial observations regarding such tinting,
verification that the defendant's license had been suspended, the odor of alcohol
emanating from him his bloodshot and watery eyes, slurred speech, along with the results
of both the PBT and Intoxilyzer provided PO Alvarez with reasonable suspicion that the
defendant was intoxicated, and had recently committed a violation of the Vehicle and
Traffic Law (see DeBour, 40 NY2d at 223; People v Ingle, 36 NY2d 413
[1975]). His conclusion, then, that the there was probable cause to arrest the defendant
for operating a motor vehicle while intoxicated or for violating VTL 375 was entirely
justified (see Bigelow, 66 NY2d at 423; People v Goodell, 164 AD2d
321, 323-324 [4th Dept 1990]; affd, 79 NY2d 869 [1992]; People v
Farrell, 89 AD2d 987, 988 [2d Dept 1982]). Accordingly, there was no need for the
People to provide proof of which window the officer tested or observed to be tinted.
Further, since PO Alvarez's observations provided reasonable cause to believe the
defendant had operated a motor vehicle while intoxicated, it follows that his arrest and
subsequent request that he submit to a chemical blood-alcohol breath test were proper
(see People v Johnson, 134 Misc 2d 474 [Crim Ct, Queens County 1987, Johnson
J.]). Defendant's challenge to the legality of his stop, arrest, and basis for submission to
an Intoxilyzer breath test therefore fails.
Finaly, observations by police officers, and chemical analysis tests, or the refusal
thereof (VTL 1194 [2] [a], [b]) present no expectation of privacy (see Katz v
U.S., 389 US 347 [1967]; People v Mercado, 68 NY2d 874 [1986]). As such,
defendant's motion to suppress the results of his Intoxilyzer chemical blood-alcohol
analysis test as the having been requested without a reasonable basis to do so is therefore
denied.
Chemical Blood-Alcohol Content Test
In his omnibus motion, defendant also moved to suppress the chemical
breath test claiming that the results were obtained in violation of the so-called two-hour
rule contained in VTL 1194 (2) (a). This court disagrees. Certainly, where a chemical
breath test is administered within two hours of an arrest, implied consent is deemed to
have been given. When more than two hours have passed between an arrest and the
administering of the Intoxilyzer test, however, the Court of Appeals held that "the
two-hour limitation contained in Vehicle and Traffic Law § 1194 (2) [*5](a) has no application . . . [when the] defendant expressly
and voluntarily consented to administration of the . . . test" (People v Atkins, 85
NY2d 1007, 1008-9 [1995]). Citing its prior decision in People v Ward (307 NY
73 [1974]), the Court stated that the "deemed consent" statute "had no application where
the defendant expressly and voluntarily consented" to the test (see Atkins, 85
NY2d at 1008). It further noted that the statute was "concerned, not with those who
consented to take the test, but those who were required to submit," and added that the
court found it "difficult to perceive any necessity for the protections embodied in [the
deemed consent statute] where the driver freely volunteers to take the test"
(Atkins at 1008-9). It appears, then, that when an Intoxilyzer test is administered
more than two hours after an arrest, admissibility of the test results rests on whether
express consent was given. Where express consent is not established, then the reliability
of those results must be shown.
Here, defense counsel, despite having sought and obtained a hearing on this
issue, neither litigated nor argued it. More problematically, the People ignored it. As
noted, it is People who bear the initial burden at suppression hearings. Yet, the People
elicited no testimony and offered no evidence that the Intoxilyzer breath test was
administered in compliance with VTL 1194 (2) (a). Such disregard aside, this court takes
judicial notice of the accusatory instrument, the IDTU Intoxilyer report, and other related
documents on file, which indicate that PO Alvarez first stopped the defendant on May 3,
2013, at 10:13 PM, and further indicate that the Intoxilyzer test was administered on May
3, 2013, at 11:29 PM. Notwithstanding the People's failure to satisfy their burden on this
issue, it appears the test was administered in accordance with VTL 1194 (2) (a). And,
given that defendant neither objected to such failure nor sought suppression as a
consequence of it, suppression of the Intoxilyzer test results is denied.
Recovery of the E & J Bottle of Alcohol
Upon approaching an otherwise lawfully stopped vehicle, a law enforcement
officer is permitted to open any of its doors, require the defendant to turn the ignition off,
or order him/her to step out (People v David L, 56 NY2d 698, 451 [1982];
People v Diaz, 41 NY2d 876 [1977]; People v Robinson, 74 NY2d 773
[1989]). New York courts have held that once a vehicle's occupants are outside, a search
is conducted when an officer "breaches the plane of the doorway" (People v
Hernandez, 656 NY2d 12 [1st Dept 1997]). Of course, an officer may only conduct
such a search when there is a lawful basis to do so. Here, the paucity of PO Alvarez's
testimony regarding the recovery of the E & J bottle leaves this court to speculate
whether it was observed in plain view upon his approach, discovered pursuant to a
lawful search, or recovered pursuant to an otherwise unlawful search. Given the dearth of
evidence presented on this issue, the People failed to establish the legality of its
recovery.
a. Automobile Exception
Generally, there is a reduced expectation of privacy in automobiles such that
in certain cases, they are exempt from the warrant requirement (Pennsylvania v
Labron, 518 US 938 [1996]). In assessing the propriety of the "automobile
exception" to the warrant requirement, the Court of Appeals enumerated the proper
inquiry as "whether the circumstances gave the officer probable cause to search
the vehicle (People v Blasich, 73 NY2d 673 [1989]) (emphasis supplied).
The defendant argues this exception is inapplicable because the defendant
was secured outside and at the rear of the vehicle. PO Alvarez neither articulated a fear
for his safety nor a suspicion that defendant's vehicle contained any evidence or
contraband. Notwithstanding the assistant district attorney's argument that "the officers
have to search the vehicle to make sure that there is no bombs in it, to make sure the
vehicle is safe to keep at the precinct, the police officers would have recovered this E
& J bottle" (H. 62), not one shred of factual support evidence was elicited from PO
Alvarez to support it. The mere unsupported assertion by the People that officers were
"only doing their jobs," that the officer "didn't say that they searched the whole vehicle . .
. [and] didn't say they were looking for any type of contraband" (H. 61) is woefully
insufficient to rely on the automobile exception.
b. Search Incident to Arrest
When officers have reason to believe evidence related to a crime for which
the defendant was arrested is located in the passenger compartment of a vehicle, the
police may search it in (Arizona v Gant, 556 US 332 [2009]). To be clear,
Gant flatly rejected the wholesale search of vehicle passenger compartments
whenever a suspect was arrested. Rather, a permissible search required some showing it
was necessary to ensure the officer's safety and/or preclude the suspect from destroying
evidence, or, as indicated, be reasonably believed to contain evidence related to the crime
(Gant, 556 US 332). Such showing, of course, must be supported by specifically
articulated facts.
Here, the defendant was stopped for driving with unlawfully tinted windows,
and issued a summons (H. 9). PO Alvarez testified that he observed indicia of
intoxication upon speaking with the defendant and instructing him to step out of the
vehicle (H. 7). As noted, PO Alvarez provided no testimony that the safety of him or his
partner were ever at risk. More problematically, though, no testimony was elicited from
PO Alvarez as to his or PO Reyes' belief the passenger compartment contained evidence
that the defendant was operating a vehicle while intoxicated. There was no testimony that
either of them observed anything in the passenger compartment. There was no testimony
that the defendant made any furtive movement or reached for an object. The fact that the
defendant was observed to have bloodshot and watery eyes, slurred speech and smelled
of alcohol surely provided probable cause that he was driving drunk. But that, by itself,
hardly provides a basis to believe he was consuming alcohol contemporaneous with
driving; it is nothing beyond speculative.
The People would have this court believe that the basis for PO Reyes' search
was defendant's statement that he "had a few sips." In his post-hearing argument, [*6]the assistant district attorney explained:
And these E & J bottles are completely relevant to the proceeding at
hand because it verifies the defendant's own statement that he had sips of E & J, and
verifies that the defendant was possibly intoxicated at the time that he was driving this
vehicle (H. 62).
True, the defendant stated that he "had a few sips," but that was in response
to PO Alvarez asking whether he had been drinking, which was precipitated by PO
Reyes' recovery of the E & J bottle. As for any facts and circumstances supporting
PO Reyes' basis to search the passenger compartment, there simply are none in the
record.
c. Inevitable/Inventory Discovery
The People's argument that recovery of the E & J bottle would have
been subject to inevitable discovery or an inventory search also fails. The assistant
district attorney asserted:
[T]he fact is when the defendant's [sic] being placed under arrest, a police
officer has to drive his car to the precinct no matter what, and the police officer would
have seen the E & J bottles inside the vehicle at that point. . . . So whether it
happened at the scene or whether it happened on the way to the 4-5 or the 4-2 Precinct or
whether it happened at the precinct later on when the officers have to search the vehicle
to make sure that there is no bombs in it, to make sure the vehicle is safe to keep at the
precinct the police officers would have recovered this E & J bottle (H. 61-62).
First, as a matter of law, the "inevitable discovery" exception to the
exclusionary rule, established in People v Fitzpatrick (32 NY2d 499 [1973]), is
inapplicable. While the exclusionary rule prohibits use in court of evidence procured by
officers in violation of the constitutionally-protected rights of the accused (Wong Sun
v United States, 371 US 471, 485 [1963]), the inevitable discovery doctrine permits
admission of evidence discovered through unlawful police conduct provided the
prosecution establishes by a very high degree of probability that, had the illegal police
conduct not occurred, a lawful series of events would have taken place that would have
led to the inevitable discovery of the evidence (Fitzpatrick at 506).
Significantly, the Court of Appeals narrowed the inevitable discovery doctrine to
exclude primary evidence, applying it only to secondary evidence (the product of primary
evidence) only (see, e.g., People v Stith, 69 NY2d 313,
314 [1987] [holding that the officers' discovery of a gun pursuant to an illegally obtained
statement was so attenuated from the illegal police action so as not to significantly "taint"
the evidence]). Here, the bottle of alcohol was obtained as a direct result of PO Reyes'
unlawful search. Even if the police would have inevitably searched the vehicle and
discovered it at the precinct, such discovery would be a primary result of the illegal
police conduct, and therefore not subject to the inevitable discovery [*7]rule (Nardone v United States, 308 US 338, 341
[1939]).
Nevertheless, it is significant to note that no testimony was elicited
supporting the People's claim that officers drove the vehicle to the precinct, searched for
bombs, or ultimately would have discovered the bottle. The People offered no property
invoice vouchers and elicited no testimony that the defendant's vehicle was seized,
searched, impounded or vouchered. In fact, according to defense counsel, the defendant's
wife drove the vehicle home from the location where he had been stopped, a position
unrefuted by the People.
Statements
Fundamental to American jurisprudence is the precept that any custodial
interrogation conducted by law enforcement agents must be preceded by the warnings
enunciated by the Supreme Court of the United States in Miranda v Arizona (384
US 436 [1966]). Specifically, such agents must inform a person in custody of his right to
remain silent and to have an attorney present during any questioning (id). A
suspect may, of course, waive his Miranda rights by voluntarily, knowingly, and
intelligently relinquishing those rights after having been made aware of them (People
v Anderson, 42 NY2d 35 [1977]; People v Leonti, 18 NY2d 384 [1966],
cert denied 389 US 1007 [1967]; People v Medina, 123 AD2d 331 [2d
Dept 1986]). The burden, however, of establishing the voluntariness of a suspect's
statement beyond a reasonable doubt at a Huntley hearing is on the People
(People v Holland, 48 NY2d 861 [1979]; Anderson, 42 NY2d 35;
People v Huntley, 15 NY2d 72 [1965]) and here, this courts finds they satisfied it
only as to the defendant's statement "I am suspended."
a. Custody
In deciding whether a defendant was in custody prior to receiving his
warnings, the subjective beliefs of the defendant are not to be the determinative factor.
The test is not what the defendant thought, but rather what a reasonable man, innocent of
any crime, would have thought had he been in the defendant's position (People v
Yukl, 25 NY2d 585, 589 [1969]; People v Rodney P., 21 NY2d 1 [1969]; People v DeJesus, 32 AD3d
753 [1st Dept 2006]; People v Robbins, 236 AD2d 823 [4th Dept], lv
denied 90 NY2d 863 [1997]; People v Lynch, 178 AD2d 779, 781 [3d Dept
1991), lv denied 79 NY2d 949 [1992]).
In making such an assessment, courts must consider the "totality of the
circumstances" (People v Centano, 76 NY2d 837 [1990]; see also Minnesota
v Murphy, 465 US 420 (1984). Among such circumstances is whether the defendant
voluntarily appeared at, or accompanied officers to, the police precinct and whether
questioning is conducted in a non-coercive atmosphere (People v Acquaah, 167
AD2d 313 [1st Dept 1990], app denied 78 NY2d 961 [1991]; People v
Davis, 161 AD2d 395 [1st Dept 1990], app denied 76 NY2d 955 [1990]).
Based on the defendant's admission that his license was suspended in conjunction with
PO [*8]Alvarez's observations that he was intoxicated, it
is axiomatic that the defendant was in custody after he had been removed from the
vehicle.
b. Interrogation
A suspect is subjected to interrogation when he is confronted with "express
questioning or its functional equivalent" (Rhode Island v Innis, 446 US 291
[1980]). The "functional equivalent" of express questioning is "words or actions on the
part of the police . . . that the police should know are reasonably likely to elicit an
incriminating response from the suspect" (Innis at 301). The Court of Appeals
similarly held that
[w]hat constitutes "interrogation" of a suspect . . . is determined not by the
subjective intent of the police, but by whether an objective observer with the same
knowledge concerning the suspect as the police had would conclude that the remark or
conduct of the police was reasonably likely to elicit a response (People v Ferro,
63 NY2d 316 [1984], cert denied 427 US 1007 [1985]).
Statements made at a preliminary stage of an investigation in response to a
law enforcement agent's general inquiry are not usually considered the product of an
interrogation (People v Johnson, 59 NY2d 1014 [1983]; People v
Chestnut, 51 NY2d 14 [1980]; People v Huffman, 41 NY2d 29 [1976]). Also
exempted from interrogation are spontaneous statements that were essentially forced
upon law enforcement agents and not the product of any inducement, provocation,
encouragement or acquiescence on their part (People v Maerling, 46 NY2d 289
[1978]).
Thus, as to the propriety of the defendant's statement "I am suspended," this court
concludes it was not the product of a custodial interrogation (see People v Zapata, 41 AD3d
109 [1st Dept 2007]; People v Garcia, 19 AD3d 200 [1st Dept 2005]).
Defendant's statement that he "had a few sips," however, was made in response to a
custodial interrogation by PO Alvarez.
When questioning is conducted in a coercive atmosphere, the defendant is
considered to be "in custody" and interrogated for the purposes of Miranda
(People v Acquaah, 167 AD2d 313 [1st Dept 1990], app denied 78 NY2d
961 [1991]; People v Davis, 161 AD2d 395 [1st Dept], app denied 76
NY2d 955 [1990]). Ostensibly, PO Alvarez's purpose for asking the defendant whether
he had been drinking was to confirm his suspicion that the defendant was intoxicated.
Since PO Reyes had already recovered the bottle, the defendant would have been hard
pressed to respond in a manner other than the affirmative. His interrogation of the
defendant, then, was subject to the dictates of Miranda.
With regard to defendant's statement that he had been previously arrested for
DWI, the People concede it would be unduly prejudicial and therefore conceded it would
be inappropriate to introduce at trial.
c. Fruit of the Poisonous Tree
Evidence obtained as an indirect result of a Fourth Amendment violation is
inadmissible under the "fruit of the poisonous tree" doctrine (Nardone, 308 US
338). [*9]As indicated, the defendant's statement that he
"had a few sips" was elicited from the defendant immediately upon PO Reyes search
yielding the E & J bottle. Since his court concluded the People failed to establish the
lawfulness of that search, and that search precipitated PO Alvarez asking the defendant
whether he had been drinking, it was unlawfully obtained separate and apart from it
having also been obtained in violation of Miranda.Conclusion
This court finds that viewing the
evidence in the light most favorable to the People (see People v Williams, 84
NY2d 925 [1994]; see also People v Contes, 60 NY2d 620 [1983]), they have
satisfied their burden of demonstrating by a preponderance of the evidence that the stop
and subsequent arrest of the defendant was lawful, that the request for a chemical
blood-alcohol breath test was proper, and that it was administered in accordance with
VTL 1194 (2). Additionally, defendant's statement, "I am suspended," was not the
product of a custodial interrogation. Defendant's motion to suppress in this regard is
denied.
For the reasons set forth above, however, defendant's motion to suppress the
bottle of E & J alcohol and his subsequent statement, "I had a few sips," along with
any testimony relating to them is granted.
This shall constitute the decision and order of this court.
Dated: October 31, 2014E N T E
R
___________________________________
Richard Lee Price, J.S.C.
Footnotes
Footnote 1:By decision and order
dated November 8, 2013, Justice Judith Lieb, in deciding defendant's omnibus motion,
ordered that a combined pre-trial Mapp/Huntley/Dunaway hearing be conducted.
As part of that decision, Justice Lieb also ordered that a hearing be conducted to establish
that the chemical breath test was administered in accordance with VTL 1194 (2). Neither
party, however, litigated this issue.