Criminal Court of the City of New York, New York County, October 19, 2018

Ying-Ying Ma for defendant.

Cyrus R. Vance, Jr., District Attorney, New York (Katherine Demartini of counsel), for plaintiff.

The defendant, K.S., is charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and other charges.

On October 18, 2018, Dunaway, Mapp, Huntley, and Johnson hearings were held before this court. Police Officer Robert Alejo{**62 Misc 3d at 361} testified for the People. Based on his credible testimony, the court makes the following findings of fact and law.

Findings of Fact

Police Officer Robert Alejo has been a New York City Police Officer for 181/2 years. He is assigned to the DWI Unit in the Citywide Traffic Taskforce. In that time, he has made over 400 DWI arrests, and assisted in over 500 DWI arrests. He has also been trained at the New York Police Department Lab, through 40 hours of class instruction, on the effects of alcohol on the body, signs of intoxication, signs of bad driving, and traffic infractions codified in the Vehicle and Traffic Law.

On January 6, 2017, Officer Alejo was on patrol with his supervisor, Lieutenant Wick. Their shift ended on January 7, 2017. That night, they were on uniformed patrol in an unmarked vehicle. Specifically, they were on DWI enforcement of all vehicle and traffic laws. He testified that on that night he arrested the defendant under the following circumstances: Officer Alejo and his Lieutenant were patrolling the Meat Packing District in New York County. This area included south of 14th Street between Washington and Greenwich Streets. They chose this patrol area because it was an area densely populated with bars, lounges, and restaurants. At [*2]approximately 11:40 p.m., while traveling northbound on 9th Avenue between West 12th and West 13th Streets, Officer Alejo observed a black Mercury Mountaineer, with expired temporary New Jersey license plates, fail to stop at a stop sign. Specifically, Officer Alejo observed the vehicle slowly roll through the stop sign, without attempting to come to a complete stop. Officer Alejo testified that he immediately activated his lights and sirens and pulled the vehicle over. Once the vehicles came to a full stop near the Apple Store north of West 14th Street, he approached the driver's side, while his Lieutenant approached the passenger's side. Officer Alejo observed the defendant seated in the driver's seat with the engine running. The driver's window was up, so Officer Alejo knocked on the window and had the defendant lower it. Officer Alejo immediately observed the strong odor of alcohol coming from inside the vehicle. He also observed that there was a male passenger seated in the front passenger seat. Officer Alejo observed that the defendant had bloodshot, watery eyes and a flushed face. Officer Alejo asked the defendant where he was coming from, to which the defendant responded that he was coming from Brooklyn. And, Officer Alejo asked if the defendant had any alcoholic{**62 Misc 3d at 362} drinks, to which the defendant responded that he had a couple of beers. Officer Alejo testified that it was during this conversation he noticed that the defendant had slurred speech. Officer Alejo asked the defendant to step out of the vehicle because he wanted to further investigate the source of the odor of alcohol. Once the defendant exited his vehicle, Officer Alejo observed that the odor of alcohol was emanating from the defendant's breath and clothes. The defendant still had bloodshot, watery eyes and a flushed face. Officer Alejo asked the defendant if he would submit to a portable breath test; the defendant indicated that he would. The result of the breath test was that the defendant had a .15% blood alcohol content. The entirety of this investigation was conducted in English. The defendant was placed under arrest.

After arresting the defendant, Officer Alejo went back to the Mountaineer to park it in a legal space. He testified that he was not going to release the vehicle to the passenger because the passenger also appeared to be intoxicated. Officer Alejo went to the passenger side and observed from outside the window that there was a bottle of alcohol near the floor of the passenger seat. He entered the vehicle and observed that there was a bottle of Evan Williams whiskey, that was about one-third full, wedged between the seat and the floor. The whiskey bottle was secured and vouchered. The defendant was then transported to the 7th Precinct's Intox-Driver Testing Unit (IDTU). Officer Alejo testified that while transporting the defendant to the Precinct he had to open the window because of the strong odor of alcohol. He also indicated that he had a conversation with the defendant because he recalls that they talked about martial arts, and that the defendant "was a martial arts instructor or something like that." During the ride to the Precinct, the defendant also mentioned that he was celebrating his Christmas. Officer Alejo testified that he did not ask the defendant any questions during the car ride.

At the 7th Precinct IDTU room, Officer Alejo believed there was a language barrier and played the defendant a prerecorded New York City Police Department video that asked the defendant if he would submit to a breath test. This tape was in Russian. The defendant stated, "yes, if I say no?" Upon hearing this, Officer Alejo took out preprinted refusal warnings and said, "let me see if you understand this" and read the defendant refusal warnings. Officer Alejo asks the defendant if he would take the test after reading the refusal warnings, and the{**62 Misc 3d at 363} defendant did not respond; instead the defendant says, "mmmm" and smiles. Officer Alejo then reads the refusal warning again, where the defendant interrupts and asks, "forever, ever?" To this question, Officer Alejo responded that a judge would determine how long the defendant's license would be suspended. Officer Alejo [*3]finished reading the refusal warnings a second time, and the defendant asks, "if I say no, I am going to a test by the judge, right?" Then, Officer Alejo reads the consequences of a refusal again, but the defendant asks, "if I say no, I can go now?" Officer Alejo indicated that the defendant would not be free to go if he refused the test because he would be arrested for DWI with or without the breath test. The defendant indicated that he would take the test, but before he blew, he asked Officer Alejo if he could change his mind. Officer Alejo allowed the defendant to change his mind. The defendant did not take the test. Officer Alejo testified that he did not offer the defendant physical coordination tests or question him because he knew there was a language barrier and that there were others waiting to use the IDTU room. Officer Alejo also testified that the prerecorded video did not have Russian refusal warnings on it and that such capabilities were not available until a few months after the defendant's arrest.

Findings of Law

[1] Officer Alejo had probable cause to stop the defendant's vehicle for a traffic infraction (see People v Robinson, 97 NY2d 341, 348-349 [2001]; People v Ingle, 36 NY2d 413 [1975]). When a police officer has reasonable suspicion that the Vehicle and Traffic Law has been violated, the stop of the motorist is justified so long as the stop is not motivated by "mere whim, caprice, or idle curiosity" (Ingle at 420). In this case, the requirement of reasonable suspicion is met by the observed traffic infraction—failing to stop at a stop sign. Accordingly, having reasonable suspicion to stop the defendant's vehicle for an observed violation of the Vehicle and Traffic Law, the officer had probable cause to arrest the defendant for driving while intoxicated (see People v Thomas, 68 AD3d 482 [1st Dept 2009] [defendant's appearance combined with the smell of alcohol emanating from him gave the officer probable cause to arrest for driving while intoxicated]; People v Creer, 31 Misc 3d 1 [App Term, 1st Dept 2010] [same]).

Motion to Suppress Statements

The defendant's sum and substance statements that he was coming from Brooklyn, and that he had a couple of beers are{**62 Misc 3d at 364} not suppressed. The statements were made in response to investigatory and noncustodial interrogation (see People v Tieman, 132 AD3d 703, 703-704 [2d Dept 2015]; People v Henriquez, 39 Misc 3d 134[A], 2013 NY Slip Op 50579[U] [App Term, 1st Dept 2013]). Additionally, the defendant's statement that he was celebrating Christmas is not suppressed as it was spontaneous and not a product of police questioning or its functional equivalent (People v Flagg, 149 AD3d 513 [1st Dept 2017]; People v Sparks, 132 AD3d 513 [1st Dept 2015]).

Motion to Suppress Physical Evidence

The bottle of Evan Williams that was recovered by Officer Alejo was properly seized pursuant to the plain view doctrine (see People v Abraham, 111 AD3d 756 [2d Dept 2013] [denial of the defendant's motion to suppress physical evidence proper as evidence was in plain view]; see also People v Coggins, 175 AD2d 924, 925 [2d Dept 1991] [same]). He lawfully entered the vehicle, after a proper arrest, to secure it and park it legally, where he observed the liquor bottle in the vehicle.

Motion to Suppress Refusal

Finally, the defendant's motion to suppress his refusal is granted.

[2] "[T]hough a defendant . . . has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance" (People v Berrios, 28 NY2d 361, 367 [1971] [internal quotation marks and emphasis omitted]). The defendant's argument that the refusal warnings were not "clear and unequivocal" because they were not provided in Russian is [*4]not persuasive. As the court held in People v Burnet (24 Misc 3d 292, 299 [Sup Ct, Bronx County 2009] [citations omitted]), "whether the defendant failed to understand them or believed them to be ambiguous is not a basis for suppression." Rather, a determination of whether the refusal warnings were in "clear and unequivocal language" must be based on an objective standard independent of whether the defendant actually understood them (id.). But, based on the testimony elicited at the hearing, and the court's review of the IDTU video, it cannot be said that the defendant understood the consequences of his refusal. While not controlling, this court finds People v Borzon (45 Misc 3d 1217[A], 2014 NY Slip Op 51613[U] [Sup Ct, Bronx County 2014]) instructive. Like in Borzon, Officer Alejo's explanation and clarification muddied a clear and unequivocal warning. Officer Alejo misstated the law when he told the defendant that a{**62 Misc 3d at 365} judge would determine the length of his revocation and suspension because if the defendant refused and persisted in his refusal, his license would be automatically revoked (see Matter of Gargano v New York State Dept. of Motor Vehs., 118 AD2d 859, 860 [2d Dept 1986]). But more importantly, it does not appear that the defendant persisted in his refusal. The Court of Appeals in People v Thomas (46 NY2d 100 [1978]) seems to indicate that in order to persist in a refusal, the defendant must decline once, be read his refusal warnings, and decline a second time. Based on the facts of this case, and review of the IDTU video, the defendant never actually refuses to take the test. Instead, he consents to take the test but asks for an explanation of alternatives. Specifically, when he is asked if he would submit to a test, the defendant states, "yes, if I say no?" And, upon being read the refusal warnings as an explanation of his alternative, he never refuses to take the test, he just smiles and says "mmmm." The defendant was not warned that his refusal may be used against him at trial and indeed, even "silence" cannot be deemed as a refusal without the warning (see People v Niedzwiecki, 127 Misc 2d 919, 920 [Crim Ct, Queens County 1985]).

Accordingly, the defendant's motion to suppress his statements and the recovered bottle of liquor is denied. The defendant's motion to suppress his refusal to take the Intoxilyzer test is granted.