People of the
State of New York
against
Bryan K. Amos, Defendant.
|
13050161
Roman A. Misula, Esq., Assistant District Attorney
Michael D. Flowerday, Esq., of Counsel to Stephen M. Leonardo, Esq.,
Attorney for Defendant.
Thomas J. DiSalvo, J.
History of the Case
Thomas J. DiSalvo, J. The defendant was charged with common law driving
while
intoxicated, VTL § 1192 (3), aggravated driving while intoxicated,
VTL 1192 (2-a) (a), leaving
the scene of a personal injury accident, VTL 600 (2) (a), leaving the scene of
a property damage
accident, VTL § 600 (1) (a), failure to keep right, VTL § 1120 (a),
and following too closely,
VTL § 1129 (a). Subsequently, a Prosecutor's information, dated
September 3, 2013, was
filed with the court, charging the defendant with aggravated driving while
intoxicated, VTL §
1192 (2-a) (a) and operating a motor vehicle while impaired by the
combined influence of
drugs and alcohol, VTL § 1192 (4-a). Said prosecutor's information
alleges a blood alcohol
count, of .33% and the presence of the drug of diazepam in the defendant's
blood, based on a
toxicology report. Probable cause, Huntley and Payton hearings were
conducted on August 15,
2014 and were continued on September 26, 2014. The People presented
Officer Douglas Rose,
Officer Bryan Cayward, Sergeant Carl Adriaansen and Registered Nurse
Lynette Engright to
testify at the hearings. The defense presented one witness, Ruby Grace
Gropp.
Findings of Fact
The People's first witness was Officer Douglas Rose of the Webster Police
Department.
He testified to receiving a dispatch at approximately 1:44 P.M. regarding an
accident at 150-160
East Main Street in the Village of Webster. When he arrived at the scene he
observed a vehicle
heading westbound with rear end damage and automobile parts in the
roadway. The driver of
said vehicle advised the officer that he was hit from behind by a black
vehicle license plate
number AYK 5718, that then drove away from the scene. The driver
complained of back pain
but refused any medical attention. Upon obtaining the address of the
registered owner he drove
to 1110 Rousseau Drive in the Town of Webster, where he found a 2013
black Nissan license
plate number AYK 5718 with extensive front end damage. He testified that
while at 1110
Rouseau Drive nobody entered said apartment. He also stated that he briefly
spoke to the
defendant at the Rochester General Hospital Emergency Room.
The next witness was Officer Bryan Cayward of the Webster Police Department.
He
testified that on May 13, 2013 at approximately 1:34 P.M. He was
dispatched to an alleged hit an
run accident on West Main Street in the Village of Webster. He was advised
that the vehicle in
question was a black Nissan with license plate AYK 5718. Reportedly, the
vehicle was headed
westbound out of the Village and into the Town of Webster on Ridge Road.
The officer was
advised that the vehicle was registered to a Ruby G. Gropp of 1110
Rousseau Drive, Webster
New York. Officer Cayward never arrived at the scene of that accident.
While on the way to the
scene of that accident he came upon the intersection of Ridge Road and
Webster Commons
Boulevard. At that location the officer observed what appeared to him as the
remnants of another
motor vehicle accident. He was advised at the scene by various individuals
that the suspect
vehicle turned onto Webster Commons Boulevard. Individuals at the scene
provided him with
the license plate number of the car involved in that incident, which was
AYK 5718. Armed with
the license plate number the officer was able to determine that the car was
registered to an owner
located at 1110 Rousseau Drive, Webster New York. Whereupon he
proceeded to that address.
The officer then located the said unoccupied vehicle parked in in front of the
said residence.
Officer Cayward observed damage to the front of said car, which indicated
to him the vehicle had
been in an accident. The officer knocked on the locked door of 1110
Rousseau Drive but no one
answered. By this time other Webster Police Officers arrived at the scene.
Officer Cayward
obtained the cell phone number of Ruby G. Gropp, the owner of the vehicle
from Lt Rieger of the
Webster Police. He then phoned that individual who was at work at a car
dealership in the Town
of Webster. The officer informed Ms. Gropp that her vehicle was in a motor
vehicle accident
and that it was parked outside her apartment. He was advised by Ms. Gropp
that the defendant
was driving her vehicle. Officer Cayward testified that in answer to a
question Ms. Gropp told
the officer that the defendant was a diabetic. The officer then testified that he
asked Ms. Groop if
it was possible that Mr. Amos needed medical assistance. She reportedly
responded "maybe".
He then testified to asking if the defendant had a drinking problem. To that
question the officer
stated that Ms. Gropp said "no". He indicated that Ms. Gropp advised him
that 1110 Rousseau
Drive was her apartment, but that the Bryan Amos lived there as well. The
officer requested that
Ms. Groop leave work and come to her apartment. She agreed to do so and
arrived at about 2:46
P.M. Officer Cayward testified that he asked if he would be able to
accompany her into the
residence. To which she allegedly agreed both over the phone and upon
arriving at her
apartment. Upon arriving Ms. Gropp opened the garage door with her
automatic door opener.
She then used her key to open the door leading from the garage into her
apartment. She was
followed into the residence by Officer Cayward, Officer Sotir, Sargent
Adriaansen and the
emergency medical personnel who had been summoned to the scene. The
defendant was
located asleep and snoring in one of the bedrooms. The officers and medical
personnel woke up
the defendant and began to question him. But the defendant could not be
understood by Officer
Cayward. He was asked to get out of bed, which he did. However, in so
doing the defendant
appeared to sway and stagger. Officer Cayward described him as having
blood shot watery eyes
and emitting a strong odor of alcoholic beverage. He then fell over hitting
his head on the night
stand causing a three to four inch laceration to the back of his head. The
defendant was
eventually transported Rochester General Hospital by ambulance for
treatment. At the
hospital the defendant reportedly told Officer Cayward that "I was drinking
and driving".
Officer Cayward further testified that the defendant admitted to have been
drinking straight
vodka. The officer asked the defendant if he had been in a motor vehicle
accident to which the
defendant admitted to hitting one car and that he left the scene because he
had been drinking and
driving. Upon further questioning the defendant advised the officer that he
was a diabetic, but
did not take insulin. Instead he took "one pill per day". He also told the
officer that he took
Valium. The officer stated that at 15:41 hours he arrested the defendant for
driving while
intoxicated. When asked by the assistant district attorney if the defendant
consented to a blood
draw, the officer stated "implied consent". The defendant asked the officer
what was next. The
officer advised the defendant that a blood test was next. The officer testified
that the defendant
did not object to that blood draw. Upon cross examination Officer Cayward
said he did not
specifically ask the defendant to consent to a blood draw, but that the
defendant just responded
"okay" upon being advised that the blood draw was in fact next. Defense
counsel asked the
officer what he saw at 1110 Rousseau Drive. Officer Cayward said he found
a 2013 Nissan
Ultima with license plate number NYK 5718, which matched the vehicle for
which he was
looking. He testified to telling Ms. Gropp that it may be necessary to force
the door to the
apartment if she did not return to the apartment. However Ms. Gropp arrived
at the apartment
within twenty to twenty-five minutes. She reportedly said nothing upon
arriving but simply
opened the garage door and the door to the apartment, whereupon the
officers and emergency
medical personnel followed her into her residence.
The next witness was Lynnette Enright, R.N. who was responsible for taking a
blood
draw from the defendant in the Rochester General Hospital Emergency
Room. The nurse testified
to having a conversation with the defendant. He told her that he had been
under a great deal of
stress as the result of a divorce. He told her he had been drinking all day. Ms.
Enright told the
defendant that the doctors would be suturing his head laceration. She also
told the defendant
that she was going to take two blood draws from him, to wit: one for the
police and one for
Rochester General Hospital. Nurse Enright further advised the defendant
that he could not be
released from the hospital until his blood alcohol level was below .08 % and
that he would be
getting breath tests until that blood alcohol level was reached. There was no
indication that the
defendant did not understand what she told him. The nurse did take the two
blood draws as
described. However, before obtaining those draws the defendant signed a
hospital consent form,
which was also signed by the nurse and Officer Cayward. That consent form
was entered into
evidence as People's Exhibit 4. Prior to his signing the consent form she told
the defendant that
the purpose of the first blood draw was for the police to determine the level
of alcohol in his
system. She testified the defendant understood the purpose of the said legal
blood draw. On
cross examination the nurse advised defense counsel that she had been told
that the defendant
had been mental hygiene arrested for telling the officers that he did not want
to live.
The last witness to testify for the People was Sargent Carl Adriaasen of the
Webster
Police Department.He responded to 1110 Rousseau Drive, where Officer
Cayward was
already located, to deal with the motor vehicle accident in the Village of
Webster. When he
arrived he observed a black Nissan Sedan on the north side of Rousseau
Drive with significant
damage to the front end of said vehicle. He further observed the arrival of
the emergency
medical personnel at the Rousseau Drive address. He did not speak to owner
of vehicle or the
or the resident of the apartment. He was advised by Officer Cayward of his
conversation with
Ruby Gropp. He testified that no warrant was needed because he was
advised that consent to
enter the premises was given by Ruby Gropp to Officer Cayward. He further
testified that he
was under the impression that there was a medical emergency at hand and
that he had no reason
to suspect there was any other issue. Sargent Adriaansen followed Ms.
Gropp into the residence.
He testified to not using any force to enter the apartment and that he was
never asked to leave.
Once in the apartment he observed the defendant asleep in one of the
bedrooms. He also was
present when the defendant fell over onto the night stand that caused the
laceration on the back
of defendant's head. On cross-examination he indicated that he never heard
Ruby Gropp give
anyone permission to enter her apartment. He also indicated that it was he
who called for
emergency medical personnel to come to 1110 Rousseau Drive, because of
his belief that
diabetic medical issues were involved.
The defense produced one witness, to wit: Ruby Grace Gropp. Ms. Gropp testified
that
she lived at 1110 Rousseau Drive since April of 2011. She said that on May
13, 2013 she was
called at her place of employment at Vision Nissan in the Town of Webster
by the Webster
Police. They advised her that her vehicle was involved in an accident. She
indicated that at
that time the defendant was her boyfriend, that he resided with her and that
he was driving her
vehicle. . She testified that the phone conversation with the officer lasted
about thirty seconds.
She answered "No" to whether she was asked if the defendant was a
diabetic; to whether he had
any disabilities or heart issues; to whether he was overweight; to whether he
had a drinking
problem; to whether he was epileptic. Finally in response to whether she had
given anyone
consent to enter her apartment, she stated "No". She stated that she was
advised by the officer on
the phone that if she did not come to the apartment and open it up or the
police would open it
themselves. She stated that it took her about five minutes to arrive at her
apartment. That on the
way she observed what seemed to be her car being towed away. When she
arrived she opened
the overhead garage door. She then proceeded to open the door leading to
the apartment and went
in. She was followed by the police and the paramedics. Again, she testified
that she did not give
permission to anyone to enter her apartment. In fact she said she spoke to no
one when she
arrived, but proceed directly into her apartment. Upon entering her residence
she had no idea if
the defendant was actually there. Nevertheless, she found the door to the
master bedroom closed.
At that point she opened the door and observed the defendant asleep on the
bed. On cross-
examination, she testified that she was asked by the paramedics if the
defendant was diabetic at
the time they entered the bedroom. Finally she indicated that she was no
longer romantically
involved with Brian Amos.
Issues Presented.
Did the police have consent to enter the residence in question?
Were there exigent circumstances that allowed the police to enter the residence?
Should the observations of the police of the defendant in his residence and the
statements
of the defendant made in said residence be suppressed?
Did the police have probable cause to arrest the defendant at the hospital?
Did the defendant voluntarily agree to submit to a blood test?
Should certain vehicle and traffic charges be dismissed for failure to provide a
supporting
deposition?
Legal Analysis
Entry of the Residence by the Police. This issue is governed by both the 4th
Amendment
to the United States Constitution and the Article I, Section 12 of the New
York State
Constitution, which prohibit unreasonable searches and seizures and
requiring that any warrants
issued be based on probable cause. The defendant herein was living, albeit
temporarily, with his
girlfriend at 1110 Rousseau Drive. At that time the Webster Police were
investigating two motor
vehicle accidents. The officers in question did not witness the accidents.
Their investigation led
them to 1110 Rousseau Drive because the police obtained an identification
of the vehicle that
was involved in said accidents. That identification allowed them to obtain
the name and address
of that vehicle's owner.
"It is a basic principle of Fourth Amendment law' that searches inside a home
without a
warrant are presumptively unreasonable." (Payton v. New York 445
U.S. 573,586 [1980]) In
this case the police were searching for the driver of the vehicle they found
outside the residence
of 1110 Rousseau Drive, because the vehicle matched the description of the
vehicle involved in
the hit and run accidents that had recently taken place. They did not possess
either a search or an
arrest warrant when they entered the defendant's residence.
"Courts have long recognized that te Fourth Amendment is not violated
every time police enter a private premises without a warrant. Indeed,
though warrantless entries into a home are presumptively unreasonable'
(Payton v New York, 445 U.S. 573, 586, 63 L.Ed. 2d 639, 100 S. Ct.
1379 [1980]; see also Coolidge V. New Hampshire, 403 U.S. 443, 474-475,
29 L. Ed. 564, 91 S. Ct 20022 [1971], the touchstone of the Fourth
Amendment is reasonableness' - - not the warrant requirement (United
States v. Knigths, 534 US 112,118, 151 L. Ed. 2d 497, 122 S.CT. 587
[2001]). (People v. Molnar, 98 NY2d 328,331, 746 N.Y.S.2d 673,
674-675 [2002]).
There are specific instances when the police are not bound by the warrant
requirement. "Indeed,
provided that there is probable cause, the police may proceed without a
warrant to effectuate an
arrest within a home if exigent circumstances exist to justify a warrantless
entry (see Kirk v.
Louisiana, 536 US 635, 638, 122 S Ct 2458, 153 L Ed 2d 599 [2002] see
also People v. Burr, 70
NY2d 354, 360, 514 NE2d 13363, 520 NYS2d 739 [1987])." (People v.
McBride, 14 NY3d
440,445, 902 N.Y.S.2d 830 [2010])
In any event, other than the misdemeanor of leaving the scene of a personal
injury
accident, VTL 600 ([2) (a), the police had no objective basis on which to
suspect any other
crime had been committed when they entered the defendant's residence. "A
warrantless
governmental intrusion into the privacy of a home is, with limited
exceptions, prohibited by
constitutional limitations. (citations omitted) At a minimum, there must be
probable cause to
believe that the suspect sought therein has committed a felony." (People
v. Cruz, 149 AD2d
151, 156, 545 N.Y.S.2d 561 [1989]). There was no such felony investigation
being conducted
by the Webster Police at 1110 Rousseau Drive.
(i) Exigent Circumstances. The People allege that the exigent circumstances
presented
in the instant case result from the fact that the police believed that the
defendant was having
a medical emergency due to diabetes. Medical emergencies have been
recognized as a basis for
the warrantless entry of a residence. However, the police must have an
objective basis for
believing that such a medical emergency exists. (Brigham City, Utah v.
Stuart, 547 U.S. 398,
126 S. Ct. 1943, 164 L. ED. 2d 650 [2006]) This would be the case even if
the officer's actual or
additional motive was to investigate a crime. The United States Supreme
court has determined
that the subjective motivation of the officer is irrelevant. (See Wren v.
United States, 517 U.S.
806 [1996].).
However, the facts herein show that Ruby Gropp, the primary resident of the
apartment
was present with a key to enter the residence and check in on the defendant,
if he was in fact in
the apartment at the time. In addition, there were paramedics on the scene,
from the Union Hill
Fire Department, who entered the apartment to check on the defendant.
These facts beg the
question as to why the police also needed to enter the apartment at that time?
Certainly, Ms.
Gropp could look to see if the defendant was in the apartment and was in
any kind of distress.
If he was in distress, the paramedics could have tended to him. Thus it would
appear that the
People could not rely on an objective exigent circumstance of a possible
medical emergency to
justify entry into the defendant's residence.
(ii) Consent. There is no doubt that Ruby Gropp had authority to grant police
consent to
enter and search her apartment. She was the primary occupant having been
the legal lessee.
However, it is far less than clear as to whether she gave such permission
either on the occasion of
the phone call to her by Officer Cayward or on the occasion of her arriving
at the apartment.
"When the police claim to have consent to enter the premises, it is the
People's burden to show that consent was in fact voluntarily given, and not the result of
duress or coercion, express or implied.' Bumper v. North Carolina, 391 U.S. 543, 88 S.
Ct. 1788, 20 L. Ed. 2d 797 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.
Ct. 2041, 36 L. Ed. 2d 854 (1973). There are a variety of factors that should be examined
as a whole when determining the voluntariness of consent, including, 1) whether the
consenter was in police custody at the time (also including such considerations as
number of officers present and the extent to which they restrained the defendant), 2) the
background of the consenter, including prior experiences with the police, 3) whether or
not the consenter offered any resistance to the police, and 4) whether the police informed
the consenter of their right to refuse consent. People v. Gonzalez, 39 NY2d 122,
128-130, 347 N.E.2d 575, 383 N.Y.S.2d 215 (1976). None of these factors is
individually controlling; rather consent must be determined from the totality of the
circumstances. Id. at 128. Furthermore, such consent need not be specifically or orally
given, but may be inferred from an individual's words, gestures, or conduct.' United
States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981)." (People v.
Fakoya, 25 Misc.3d1 1205(A), 901 N.Y.S.2d 909
[2008])
First, Ms. Gropp was not in custody at any time.
However, there were three officers on
the scene when she arrived at her apartment, Cayward, Sotir and Adriaansen.
Second, there was
no evidence that Ruby Gropp had any prior experience in dealing with police
officers. Third,
there was no evidence presented that Ruby Gropp resisted entry of the police
officers into her
apartment. Fourth, there was no testimony that Ms. Gropp was advised of
her right to refuse
to consent to the search. Officer Cayward testified that Ms. Gropp agreed to
have the officers
accompany her into her apartment both on the phone and when she arrived at
the scene.
However, on cross-examination, he testified to advising Ms. Gropp on the
phone that they [the
police] might have to force the door if they were not let into the
apartment.
Suppression of Evidence Obtained From Entry of Residence. As stated above
the
police did not have either exigent circumstances or consent to enter the
residence of the
defendant. Nevertheless, suppression of evidence obtained as a result of said
entry is not
automatic as fruit of the poisonous tree. The Court of Appeals stated "There
are, it is settled,
exceptions to the rule that evidence is inadmissible if uncovered as a result
of information
obtained by impermissible conduct on the part of police officers" (People
v. Fitzpatrick, 32
NY2d 499,505-506, 346 N.Y.S.2d 793,796 [1973]) One of these exceptions
is known as the
" inevitable discovery'" rule.[FN1]
(See also People v. Adams,
120 AD3d 1253, 992 N.Y.S.2d 133
[2014]) In this case the general observations of the defendant as it applies to
indicia of
intoxication would be inevitably discovered by the police once the defendant
was taken out of
the house and taken to the hospital. In addition, the doctrine of inevitable
discovery would also
apply to both the observations of the fall of the defendant on the night stand
and the statements
made by the defendant in the bedroom of his residence. That incident and the
statements of the
defendant would be reported by and testified to by the paramedics. The
Appellate Division,
Second Department held in People v. Adams, 120 AD3d 1253,1254-1255, 992
N.Y.S.2d 133,
135 [2nd Dept. 2014] that "... the hearing court erred in suppressing disputed
identification
evidence and the defendant's statement to law enforcement officials as fruit
of the poisonous tree
because this evidence fell under the inevitable discovery exception to the
exclusionary rule...." .
Thus neither the observations of defendant nor his statements to the police in
his residence are
suppressed.
Probable Cause to Arrest. This case does not fit into any convenient category
such as
a warrantless arrest of the defendant in his home. That is because no arrest
took place in the
defendant's home. Instead, due to the fact that the defendant fell and injured
his head, he was
transported by the Union Hill Fire Department Ambulance personnel to
Rochester General
Hospital. Webster Police Officer Bryan Cayward followed the ambulance to
the hospital
emergency department. Once there he began to speak with the defendant.
Totally ignoring
what went on in the defendant's residence, Officer Cayward still had
evidence of two hit and run
traffic accidents involving damage to the rear end of two vehicles, a
description of the vehicle
involved, including a license plate number, an address of the registered
owner of the vehicle, a
phone conference with that owner of that vehicle pointing to the defendant
as the driver, the car
of the registered owner matching the description of the car that left the scene
of two accidents
which is found in the front of the owner's apartment, said car having front
end damage and a
license plate number matching that which was previously provided as part of
the description. In
addition, there is a male individual being taken out of the residence of the
registered owner by
emergency medical personnel so he can be taken to a hospital.
At the Rochester General Emergency Department Officer Cayward went into the
room
where the defendant was being treated to further investigate the situation.
"Such approaches are
governed by People v. Hollman, 79 NY2d 181, 581 N.Y.S.2d 619,
590 N.E.2d 204 (1992), and
People v. DeBour, 40 NY2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562
(1976)." Gertstenzang,
Handling the DWI Case in New York § 1:2 at 3 (2013-2014 Edition).
Once in the room the
officer began to question the defendant, which led to various statements
made by the defendant, a
blood draw and an arrest of the defendant in the hospital emergency room.
The Court of Appeals
has stated that such situations set out
" ... the fundamental issue of whether or not a police officer, in the absence
of any [*2]concrete indication of criminality, may
approach a private citizen on the street for the purpose of requesting information. We
hold that he may. The basis for this inquiry need not rest on any indication of criminal
activity on the part of the person of whom the inquiry is made but there must be some
articulable reason sufficient to justify the police action which was undertaken."
(People v. DeBour, 40 NY2d 210,213, 386 N.Y.S.2d 375, 378 [1976])
Over a decade later the court summarized its thoughts on
the issue of a police officer
approaching a citizen to obtain information.
"In People v De Bour (40 NY2d 210, 223), we set out a four-tiered method
for evaluating the propriety of encounters initiated by police officers in their criminal law
enforcement capacity. If a police officer seeks simply to request information from an
individual, that request must be supported by an objective, credible reason, not
necessarily indicative of criminality. The common-law right of inquiry, a wholly separate
level of contact, is activated by a founded suspicion that criminal activity is afoot and
permits a somewhat greater intrusion' ( People v De Bour, supra, at 223). Where a police
officer has reasonable suspicion that a particular person was involved in a felony or
misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally,
where the officer has probable cause to believe that a person has committed a crime, an
arrest is authorized." (People v. Hollman 79 NY2d 181,184-185, 581 N.Y.S.2d
619,620 [1992])
In this particular case the police conversation
with the defendant at the hospital is
at the beginning a level one encounter to obtain information. Certainly he
was aware of two
prior hit and run motor vehicle accidents, with one involving possible
personal injuries.This
escalated very quickly to a level two encounter when the defendant advised
the officer that
he "had been drinking and driving" and that he had been drinking straight
vodka. The defendant
then admitted to hitting one car and leaving the scene of the accident
because of the said drinking
and driving. In response to further questioning the defendant indicated that
he was not a diabetic
but did take some sort of diabetes medication and that he took Valium. The
officer then moved
to a level three encounter by remaining with the defendant in his hospital
room. For all intents
and purposes the defendant was being stopped and detained by the officer.
As a result of the
information obtained to that point the officer arrested the defendant for
driving while intoxicated.
This court holds that the arresting officer had probable cause, that is
reasonable cause, to make
that arrest.[FN2]
(i) Huntley Issues. In addition to the reasons set forth above, the statements
made by the
defendant to Officer Cayward in the emergency department are not
suppressible as being made in
a custodial setting. "The fact that he was injured and was lying in a hospital
bed did not render
the environment a custodial one." (People v Alvarez-Hernandez,
2002 Slip Op 50379U *28)
Nor is the subjective belief of the defendant as to his custodial status
relevant.[FN3]
Voluntariness of Blood Test. In order for the blood test to be admissible into
evidence
the consent of the defendant must be voluntary, knowingly and freely given.
(See People v.
Slater, 166 A.D. 828, 830, 562 N.Y.S.2d 985, 987 [3rd Dept. 1990]
When asked by the assistant
district attorney during direct examination if the defendant consented to a
blood draw, Officer
Cayward responded "implied consent". The evidence indicated that when the
defendant was in
the hospital emergency room and following his arrest, he asked Officer
Cayward "What's next?"
Officer Cayward responded "A blood Test'. To which the defendant said
"Okay". During that
time the defendant complained of pain in his head, presumably from his fall
at the apartment. On
cross-examination the officer indicated that he did not specifically ask the
defendant if he would
submit to a blood draw to determine his blood alcohol count. As stated
above Lynette Enright,
the nurse in the emergency room went into greater detail with the defendant
regarding the taking
of two blood tests, i.e. one for the police and one for the hospital. She even
had him sign a
hospital consent form, which states above the defendant's signature in upper
case letters "I
HAVE GRANTED PERMISSION FOR BLOOD TO BE TAKEN."
In a case remarkably similar to the case at hand as it applies to the blood test, the
Appellate Division, Fourth Department held in a memorandum decision in
People V. Skardinski,
24 AD3d 1207, 807 N.Y.S.2d 232 [4th Dept. 2005] that the defendant did
not voluntarily
consent to the blood draw. The pertinent part of the courts decision is as
follows:
"When defendant failed to respond to or indicate that she understood the
State Trooper's warnings, the State Trooper stepped into the hall to speak with a nurse
about the possibility of a court-ordered blood test. The nurse then entered defendant's
room and said, [T]he police are here. They want to take blood for possible, for a DWI,
you know. Do you know that's why they're here, we're going to take blood. We need you
to consent on this in order to do it.' The nurse presented defendant with a clipboard
securing the consent form, and defendant signed the consent form at an irregular angle
across the title of the document rather than on the designated signature line. Under the
circumstances presented herein, we conclude that the People failed to meet their heavy
burden of proving the voluntariness of the purported consent[]' (People v Gonzalez, 39
NY2d 122, 128, 347 NE2d 575, 383 NYS2d 215 [1976]; see Ellis, 190 Misc 2d at
105-107; cf. People v Atkins, 85 NY2d 1007, 1008-1009, 654 NE2d 1213, 630 NYS2d
965 [1995]; People v Hoffman, 283 AD2d 928, 929, 725 NYS2d 494 [2001], lv denied
96 NY2d 919, 758 NE2d 662, 732 NYS2d 636 [2001])."(People v. Skardinski, 24 AD3d
1207,1208, 807 N.Y.S.2d 232,233 [4th Dept. 2005]).
The court
does not elaborate as to why under those facts that the court determined that the
defendant did not voluntarily, knowingly and freely given consent. Nor are
the cases cited by
the court overly helpful.[FN4]
One is left to speculate that the court felt that the State Trooper
abrogated his responsibility of obtaining a proper consent to the emergency
room nurse. It is
possible to argue that a person would be more willing to give consent to
draw blood to a medical
person rather than a police officer. Certainly, there was no indication that the
defendant in
Skardinski was advised that he could refuse to allow the blood draw.
Certainly in the instant
case, the defendant was never advised as to his right to refuse to permit the
blood draw. In
addition, it was the nurse and not the officer that discussed the purpose of
the test. Based on
all these facts and on the holding by the Appellate Division in People v.
Skardinski, this court
holds that the People have failed to meet their burden proving the
voluntariness of the purported
consent.
Supporting Deposition. The defendant was charged with common law
driving while
intoxicated, VTL § 1192 (3), aggravated driving while intoxicated,
VTL 1192 (2-a) (a), leaving
the scene of a personal injury accident, VTL 600 (2) (a), leaving the scene of
a property damage
accident, VTL § 600 (1) (a),failure to keep right, VTL § 1120 (a),
and following too closely,
VTL § 1129 (a) by simplified information in accordance with VTL
§ 100.25 (1). Defendant
was arraigned with counsel on June 5, 2013. He pled guilty to aggravated
driving while
intoxicated, VTL 1192 (2-a) (a) in full satisfaction of all charges before the
court on September
4, 2013. The defendant's current attorney was substituted as counsel on or
about January 13,
2014. Defendant was allowed to vacate his plea on February 14, 2014. His
new attorney
submitted Omnibus Motions on or about on or about April 2, 2014. The
motions papers
included a demand for dismissal of the charges of following too closely,
VTL § 1129 (a) and ,
leaving the scene of a personal injury accident, VTL 600 (2) (a) for failure to
provide a
supporting deposition in pursuant to People v. Tyler, 1 NY3d 49, 776 N.Y.S.2d 199 [2004].
It
is uncontroverted that a standard form supporting deposition was provided to
the defendant
relative to the charge of common law driving while intoxicated ,VTL §
1992 (3) along with the
C.P.L. 710.30 Notice within the required time.
The controlling statute is C.P.L. § 100.25 (2) which states in pertinent part
"A defendant charged by a simplified information is, upon a timely request,
entitled as a matter of right to have filed with the court and served upon him, or if he is
represented by an attorney, upon his attorney, a supporting deposition of the complainant
police officer or public servant, containing allegations of fact, based either upon personal
knowledge or upon information and belief, providing reasonable cause to believe that the
defendant committed the offense or offenses charged. To be timely, such a request must,
except as otherwise provided herein and in subdivision three of this section, be made
before entry of a plea of guilty to the charge specified and before commencement of a
trial thereon, but not later than thirty days after the date the defendant is directed to
appear in court as such date appears upon the simplified information and upon the
appearance ticket issued pursuant thereto."
In defense counsel's
omnibus motions he states in his affidavit "Upon information and
belief, the Defendant requested a supporting deposition within the thirty (30)
day statutory
time period." However, the court has scoured its file to find any request for a
supporting
deposition either verbally or in writing during the said thirty day time frame.
No such request
for a supporting deposition was made by defendant or his then attorney. "In
short, ... a defendant
cannot ask for a supporting deposition later than 30 days after the return date
on the appearance
ticket...." (People v.
Tyler, 1 NY3d 493,496, 776 N.Y.S.2d 199,201 [2004]) Since no request
was made for a supporting deposition within the statutory time, the
defendant's motion to
dismiss the charges of following too closely, VTL § 1129 (a) and,
leaving the scene of a
personal injury accident, VTL 600 (2) (a) for failure to provide a supporting
deposition is hereby
denied.
Conclusion.
The entry of the police into the residence of the defendant without an arrest or
search
warrant was not justified by exigent circumstances. Nor did the police obtain
the requisite
consent to enter said premises from the defendant or an authorized third
party. However, based
on the doctrine of inevitable discovery the evidence obtained by the police
while in the defendant's residence is not suppressed. However, the People failed to
establish its burden to prove the defendant's knowing and voluntary consent to the blood
draw at Rochester General Hospital. Therefore the results of the blood tests are
suppressed. Thus the charges of aggravated driving while intoxicated, VTL § 1192
(2-a) (a) and operating a motor vehicle while impaired by the combined influence of
drugs and alcohol, VTL § 1192 (4-a) are hereby dismissed, pursuant to CPL §
170.30 (1) (f).[FN5]
The court does find that the Officer had probable cause to arrest the defendant for
common law driving while intoxicated, VTL § 1192 (3), based on the evidence
obtained by the officer before entry into the defendant's residence, while in the residence
and at the hospital emergency room. The motion to suppress statements made by the
defendant while in the emergency room is denied, since they were voluntarily made to a
police officer with a common law right of inquiry and not made in a custodial setting.
Finally, as previously indicated, defendant's motion to dismiss the charges of following
too closely, VTL § 1129 (a) and leaving the scene of a personal injury accident,
VTL 600 (2) (a) for failure to provide supporting depositions is denied. The charges of
common law driving while intoxicated, VTL § 1192 (3), leaving the scene of a
personal injury accident, VTL 600 (2) (a), leaving the scene of a property damage
accident, VTL § 600 (1) (a), failure to keep right, VTL § 1120 (a), and
following too closely, VTL § 1129 (a) remain before the court. This constitutes the
decision and order of this court.
Dated: January 5, 2015
Webster, New York
__________________________________
Hon. Thomas J. DiSalvo
Webster Town Justice
Footnotes
Footnote 1: Id at 507, 798.
Footnote 2: C.P.L.§ 70.10 (2)
sets out the definition of reasonable cause.
Footnote 3: Id.
Footnote 4: The concept of consent
and the factors to be considered are discussed above.
Footnote 5: CPL § 170.30 (1)
(f) states as follows: "After arraignment upon an information, a simplified information, a
prosecutor's information or a misdemeanor complaint, the local criminal court may upon
motion of the defendant, dismiss such instrument or any count thereof upon the ground
that: There exists some other jurisdictional or legal impediment to conviction of the
defendant for the offense charged."