BACKGROUND AND PROCEDURAL HISTORY

On March 19, 2023, defendant Brian Chinga was arrested on charges related to operating a motor vehicle while under the influence of alcohol or drug (Vehicle and Traffic Law ["VTL"] § 1192 [3] and [1]). He was arraigned the next day and released on his own recognizance. At arraignment, the People served notice pursuant to Criminal Procedure Law ("CPL") § 710.30 (1)(a), of their intent to use at trial a statement allegedly made by defendant while at Lincoln Hospital, at 234 East 149th Street, Bronx New York.

By notice of omnibus motion, the defense moved to, inter alia: (1) suppress all evidence relating to defendant's identification for which the People served proper notice pursuant to CPL § 710.30; (2) suppress all observations of defendant made by the police including body-worn camera footage and photographs; (3) suppress all statements taken from defendant for which the People served proper notice pursuant to CPL § 710.30; (4) suppress all blood seized; (5) preclude from being introduced at trial any evidence of defendant's prior convictions or bad acts.

By order dated October 11, 2023, the court (Hon. Carmen A. Pacheco), granted defendant's motion to the extent of ordering that, inter alia, the following suppression hearings be conducted prior to trial: Wade/Dunaway/Crews/Rodriguez/Mapp/Ingle/Huntley.^[FN1]

By order dated January 23, 2024, the court (Hon. Carmen A. Pacheco), amended its prior order and the hearings it previously ordered, and granted defendant's subsequent omnibus motion [*2](which sought to suppress evidence relating to a chemical blood test), to the extent that the following suppression hearings were ordered to be conducted: Mapp /Huntley /Dunaway/ Crews/Gethers/Rodriguez/Ingle/Atkins/Refusal.

On February 22nd, 26th, and 28th of 2024, the hearings were conducted. Prior to the commencement of testimony, the parties agreed that based upon the facts of this case, only the following hearings were necessary: Ingle/Mapp/Huntley/Dunaway/Atkins.^[FN2]

The People called as their witnesses Police Officers Estrellalopez and Foizal Khan. Defendant neither testified, nor presented any witnesses.

Based on the testimony and evidence presented at the hearing, the court makes the following findings of fact and conclusions of law.

The court finds Police Officers Estrellalopez and Khan testified credibly.

Police Officer Estrellalopez has been employed with the NYPD for approximately 2.5 years. He is currently assigned to Patrol, in the borough of the Bronx, where he has been working for approximately six (6) months. He received training at the police academy which included how to recognize an individual under the influence of alcohol. He has been the arresting officer in approximately 100 arrests and assisted in over 200 other arrests. At least four (4) of the arrests he was involved in were for driving while intoxicated.

On March 19, 2023 at approximately 6:40 am, Police Officer Estrellalopez and his partner were involved in an investigation of an incident that occurred in the vicinity of 161st Street and the Major Deegan Expressway, Bronx, New York. The officers were in uniform and travelling in a marked police vehicle.

The officers received a radio run regarding a patient at Lincoln Hospital that may have been a victim of assault. Upon arrival at the hospital, Officer Estrellalopez proceeded to the nurse's station and was guided to hospital room C14 where he found defendant and defendant's girlfriend. Defendant was in a hospital bed.

Officer Estrellalopez spoke with defendant's girlfriend who told him that she brought defendant to the hospital after receiving a call from defendant to pick him up from Dr. Martin Luther King Boulevard and West 166th Street.

The officer observed defendant to have a strong odor of alcohol coming from his body and bloodshot eyes. Based on those observations, the officer believed that defendant was drunk.

Officer Estrellalopez took a photograph of defendant while in the hospital which was admitted into evidence. The photograph showed defendant attached to an IV machine and with lacerations to his face, arms, and hands. Officer Estrellalopez testified that defendant did not tell him that the injuries were from any assault; nor did defendant say anything to this officer during [*3]the interaction in the hospital.

The officer observed a plastic bag with black clothing in it, next to defendant's bed. The officer testified that he observed the clothing to be wet and that he believed they were wet with blood.

After the interaction in the hospital room, the officer called his supervisor, Lieutenant Douglas, and reported the information he had obtained. Lieutenant Douglas arrived at the hospital and spoke with defendant's girlfriend.

Lieutenant Douglas told Officer Estrellalopez that he had spoken with another officer (Officer Khan), that had taken a report about a motor vehicle accident involving a 2014 red BMW (New Hampshire plate, 5099000), that occurred at the Major Deegan Expressway and West 161st Street. This is near the area where defendant's girlfriend picked him up.

Officer Estrellalopez testified that he received a photograph of a person walking on the sidewalk that was given to Officer Khan by a witness. The witness ("the witness") had seen an accident and called 911 to report it. The witness took a picture of a male person who had been driving the red BMW involved in the motor vehicle accident and was seen exiting the driver's door of the vehicle. The person in the photograph was wearing all black.

Officer Estrellalopez testified that after viewing the photograph, he checked the bag of clothing that was next to defendant's bed, and it appeared to be the same black clothing that was depicted in the photograph of the individual leaving the scene of the accident. As a result, Officer Estrellalopez determined that defendant was the driver of the vehicle that was involved in the accident and left the scene, and that defendant was drunk while driving that vehicle.

After Officer Estrellalopez was provided information that the red BMW is registered to Melanie Sanchez. According to defendant's girlfriend, Melanie Sanchez is the mother of defendant's child.

At approximately 10 a.m., Officer Estrellalopez arrested defendant.

Officer Estrellalopez called Highway One to respond to the hospital to administer a blood test to confirm that defendant was intoxicated. Officer Prodan, a certified IDTU technician, offered defendant the test at approximately 10:25 a.m. At first defendant responded that he did not know if he wanted to take the test. Officer Prodan then read defendant the refusal warnings, after which defendant consented to taking the blood test. During this time, the officers did not have their weapons displayed, make any promises or coerce defendant in any way, to get his consent. The blood-draw was captured on Officer Prodan's body-worn camera video which was admitted into evidence.

Officer Estrellalopez was present during the blood draw and testified that it was done by a registered nurse. He also observed Officer Prodan box the blood samples taken from defendant and seal the box. Officer Estrellalopez vouchered the box containing the samples and took the samples to the Office of the Chief Medical Examiner ("OCME"). The officer testified that he was not trained or certified as to conducting blood tests and was not able to confirm whether the blood draw on defendant was conducted properly.

At the OCME, testing was conducted on defendant's blood by Elba Arrango, Assistant Director of Forensic Toxicology. The test showed a result of .09 blood alcohol content.

Officer Estrellalopez learned that a bottle of Hennessy with brown liquid was recovered from the red BMW. The officer vouchered and photographed the bottle which depicted blood on the outside of the bottle. Three (3) photographs of the bottle were admitted into evidence.

Police Officer Khan has been employed with the NYPD for approximately six (6) years and has been assigned to the Driver Safety Unit for the last two (2) years. His current duties include traffic enforcement. He has made approximately 54 arrests, one (1) of which was for driving while intoxicated. Prior to becoming a police officer, Officer Khan received specialized training in, inter alia, accident investigations including being able to determine the cause of an accident.

On March 19, 2023, at approximately 6:40 a.m., PO Khan was assigned to highway enforcement within the confines of the 44th Precinct and was in the vicinity of East 161st Street and the Major Deegan Expressway. His duties included conducting car stops, investigating motorist operators, accident investigations, and assisting other police officers on radio runs. PO Khan was working alone, in uniform, and traveling in a marked police vehicle. The weather was clear, the traffic conditions were normal, and it was daylight.

The location of 161st Street and the Major Deegan Expressway is a six-lane highway, with three (3) lanes going southbound and three (3) lanes going northbound. On the east side of the Major Deegan Expressway there is a concrete median. There is a ramp in the vicinity of 164th Street and a metal rail that separates the Major Deegan Expressway at that ramp from Sedgwick Avenue.

PO Khan was conducting traffic enforcement at Jerome and Sedgwick Avenues, when a passerby on the northern side of Jerome Avenue yelled to him, indicating that there had been a vehicle accident. The officer left his location and traveled north on Sedgwick Avenue approximately 140 feet, where he observed a red, four-door, sedan BMW (New Hampshire License Number 5099000) at the ramp from the Major Deegan Expressway going to Sedgwick Avenue. The front portion of the vehicle had collided with the metal rail that separates the Major Deegan Expressway and Sedgwick Avenue. When he approached the vehicle, he did not observe anyone inside.

The officer stopped his vehicle, activated his body-worn camera, and examined the BMW. According to the officer, there was extensive damage to the front of the vehicle, both airbags had deployed, there was debris of car parts all over the front portion of the vehicle. There were also bloodstains on the windshield, the front portion of the vehicle, the steering wheel, and the deployed airbags. The officer observed an open bottle of Hennessy that contained a brownish liquid with blood stains on it, in the console between the driver's and front passenger seats. The officer took photos of the vehicle which were admitted into evidence.

PO Khan contacted the radio dispatcher, asking if there were any calls about a vehicle accident at the subject location. The dispatcher told the officer that there had been a 911 call for an accident involving a red BMW at the subject location. The officer contacted the 911 caller and asked him to return to the scene.^[FN3]

The witness returned to the scene and told the officer that he observed the red BMW going northbound on the Major Deegan Expressway at a fast rate of speed; the BMW lost control and collided with the metal guardrail; he then saw the driver of the BMW exit the vehicle from the driver's side door and walk over to the southern sidewalk and proceed northbound. [*5]According to the witness, there was blood on the driver's face and clothing, and the witness only saw this person exit the vehicle after the accident; no one else exited the vehicle. The witness described the person that walked from the driver's side of the red BMW as a short male, wearing all black.

The witness showed the officer a picture on his phone that he took of the male that exited the BMW; the male was dressed in all black; and the photo was of the back of this person. The witness told the officer that the individual walked northbound on the eastern sidewalk of Sedgwick Avenue. Officer Khan took a picture of the photo with his NYPD phone; the picture was admitted into evidence. The witness never gave the officer a description of the driver of the red BMW (other than to say the individual was short and male), and the witness never identified defendant as the driver of the red BMW.^[FN4]

Officer Khan reported the accident and his observations to his supervisor, Lieutenant Douglas, and sent him a copy of the photo. The Lieutenant instructed Officer Khan to stay at the scene while the Lieutenant conducted a hospital canvas. Officer Khan described a hospital canvas as a search of the hospital's administrative section to see if anybody walked into the hospital or was taken by ambulance, having injuries sustained in a vehicle collision. Officer Khan testified that hospital canvases are required by the NYPD.

Officer Khan's body-worn camera video of the accident scene was admitted into evidence.

At the close of the officers' testimony, the parties stipulated to the following facts:

NYPD swabbed the vehicle in this case for DNA, namely, blood; vouchered those swabs and submitted it [sic] to OCME, Office of Chief Medical Examiner, an independent agency, for comparison against the defendant's consent blood draw sample. However, no comparison results were obtained as to OCME declined to conduct testing. OCME, not NYPD, is the agency that conducts this sort of testing.

At a suppression hearing, the People bear the initial burden of presenting evidence to show the legality of the police conduct (see People v Berrios, 28 NY2d 361, 367-68 [1971] [citations omitted]. Once the People meet their burden, the defendant bears the ultimate burden to show by a preponderance of the credible evidence that the evidence at issue (i.e. statements, identification or items seized), should not be used against her because it was obtained in an illegal manner (see id. at 367; Mapp v Ohio, 367 US 643 [1961]; Dunaway v New York, 442 US 200 [1979]).

Additionally, hearsay is admissible at suppression hearings to establish material facts (see CPL § 710.60 [4]; People v Norman, 304 AD2d 405, 405 [1st Dept 2003]).

At the outset, the court finds that since there was no vehicle stop involved in this case, a hearing [*6]under People v Ingle, 36 NY2d 413, 414 [1975] was not warranted.^[FN5]

At a hearing to determine whether there was probable cause to arrest a defendant without a warrant, the People bear the burden of proving that the defendant's arrest was lawful (see Dunaway v New York, 442 US 200 [1979]; People v De Bour, 40 NY2d 210, 223 [1976]). "Probable cause . . . 'does not require proof . . . beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been . . . committed [by the defendant]'" (People v Guthrie, 25 NY3d 130, 133 [2015] [citation omitted]; see also People v Vandover, 20 NY3d 235 [2012]).

As to tangible property and other evidence which may have been seized by the Police as well as the fruit of any illegal police conduct, the People bear the initial burden of establishing by credible evidence the legality of the police conduct that led to the recovery of the property (see People v Berrios, 28 NY2d 367-68). The burden then shifts to the defense to persuade the court by a preponderance of the evidence that the seizure was unlawful and that the seized evidence should therefore be suppressed (Mapp v Ohio, 367 US 643 [1961]).

As stated, in this matter defendant is charged with operating a motor vehicle while under the influence of alcohol or drug under VTL § 1192 (1) and (3).

Probable cause in the context of alcohol related driving offenses exists when "viewing the facts and circumstances as they appeared at the time of the arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor" (People v Farrell, 89 AD2d 987, 988 [2d Dept 1982]; see also People v Poje, 270 AD2d 649,650 lv denied 95 NY2d 802 [2000] [the officers' observations of VTL violations and defendant's impaired speech, instability and odor of alcohol gave reasonable cause to believe the defendant had been driving while intoxicated]; People v Thomas, 68 AD3d 482, 483 [1st Dept 2009] [holding that police had probable cause to arrest the defendant based on factors such as odor of alcohol, his slurred speech, and his uncooperative behavior and that he caused a serious traffic accident]).

Here the court finds that the People failed to meet their burden of establishing probable cause for defendant's arrest for operating a motor vehicle while under the influence of alcohol or drug in violation of VTL § 1192. Specifically, there was insufficient evidence that defendant was the operator of the red BMW at the time of the accident, or that defendant had been operating that vehicle while intoxicated or impaired.

It was undisputed that when defendant was arrested, Officer Estrellalopez lacked personal knowledge that defendant was the operator of the red BMW and instead based his determination on comparing the clothes depicted in the photograph of the person who was seen exiting the vehicle, to the clothes the officer observed in the bag next to defendant's hospital bed. Notably however, the record fails to contain any particularized details of the clothes depicted in the photograph or those contained in the bag (i.e. type, style, fabric, or brand) to lead Officer Estrellalopez to such conclusion.

The photograph merely shows the back of what appears to be a male individual dressed in all black that was taken from several feet away and does not show any visible details needed [*7]to match the clothes. From the information given by the witness and what can be gleamed from the photo, the clothes were not distinct in any way, other than being black in color.

Contrary to the defenses' argument, PO Estrella had a lawful and legitimate reason to be in defendant's hospital room since he was investigating an assault. However, the People failed to establish that the clothes inside of the bag were sufficiently visible, to enable the officer to determine that the clothes in the bag were the same as those depicted in the photograph. Notably, there was no evidence presented as to whether the bag was clear or opaque; the size of the bag; or any detailed explanation as to how the officer made his determination by mere observation of the bag of clothes that the clothes were the same as those worn by the individual in the photograph, other than the officer's vague and conclusory testimony. Significantly, no photos of the bag were admitted into evidence and Officer Estrellalopez testified that his body-worn camera was not activated during his interaction with defendant in the hospital.

Thus, it is this court's view that the testimony of Officer Estrellalopez failed to establish probable cause that defendant was the operator of the red BMW (cf. People v Thomas, 175 AD2d 188, 189 [2d Dept 1991] [upon observing in plain view clothing that matched the complainant's detailed description of the clothes worn by the perpetrator, the officers had probable cause to effectuate the arrest]).

The record does not contain any description of the driver's personal characteristics, except that the driver was a short male. Additionally, there was no testimony that anyone saw and identified defendant as the driver of the BMW.

Under these circumstances, the court finds the evidence was insufficient to establish that there was probable cause to believe that defendant was the operator of red BMW involved in the accident (see People v Brodie, 87 AD2d 653, 653 [2d Dept 1982] ["articulable facts concerning the defendant's clothes and characteristics and a particular description of the person to be arrested were necessary to evaluate the People's claim that the arrest met probable cause standards"]).

Additionally, even if the People established probable cause that defendant was the driver of the red BMW at the time of the accident, the People failed to establish probable cause that defendant was operating that vehicle while under the influence of alcohol.

Officer Estrellalopez's conclusion that defendant was intoxicated is based only on his observation of defendant in the hospital bed. He saw that defendant had bloodshot eyes and there was a strong smell of alcohol coming from defendant's body. There was no showing that defendant exhibited signs of actual impairment (such as that defendant was unsteady on his feet, slurred his words or was otherwise physically impaired by alcohol) (see People v Vandover, 20 NY3d 235, 239 [2012] [in determining whether there was probable cause to arrest under VTL § 1192, it must be proved that it was more probable than not that the defendant "exhibited actual impairment to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable prudent driver" [citations and internal quotations omitted]; People v Gilliland, 78 Misc 3d 1201 [A] [Crim Ct, Queens Cty 2023] [arrest for driving while intoxicated based only on the officer's observations of breath and eyes, without indication of actual physical coordination impairment, was not lawful]; cf People v Gullo, 51 Misc 3d 150 [A], *1 [App Term, 2d Dept 2016] [defendant exhibited relevant evidence of impairment where he had bloodshot, watery eyes, and, as dimensions of actual physical coordination impairment, slurred speech and unsteadiness on his feet]; People v Rich, 25 Misc 3d 126 [A], at *1 [App Term, 2d Dept 2021] [probable cause to arrest for violating VTL § 1192 [*8][1] was established where there was evidence that the officer detected motor impairment, a strong odor of alcohol, and slurred speech]). There was also evidence that defendant had received medication at the hospital before Officer Estrellalopez spoke with defendant.

Moreover, no accounting was offered by the People for the approximate four (4) hours from when the accident occurred to when Officer Estrellalopez observed defendant and determined that he was intoxicated. Even assuming that defendant was intoxicated when the officer spoke with him in the hospital, any consumption of alcohol by defendant may have occurred after the accident which could mean that defendant was not under the influence at the time of the crash.

Thus, defendant's motion to suppress all fruits of his arrest, including the chemical blood test (and blood test results) on the basis that the arrest was unlawful is granted.

Pursuant to CPL § 710.30 (1)(a), the People served notice of their intent to introduce a statement made by defendant while at Lincoln Hospital.

The People have the burden to prove beyond a reasonable doubt that a defendant's statements made to the police officer were voluntary and not the product of coercion (see CPL § 60.45 [2]; People v Huntley, 15 NY2d 72, 78 [1965]; People v Lin, 26 NY3d 701, 719 [2016] ["statements must not be 'products of coercion, either physical or psychological' . . . they must be the 'result of a free and unconstrained choice by their maker'" (citations omitted)]).^[FN6] The voluntariness of the statement is to be assessed when viewing the totality of the circumstances, including reasonable inferences made therefrom (see CPL§ 60.45 [2]; Dickerson v US, 530 US 428, 434 [2000] ["the totality of the circumstances [includes] . . . the characteristics of the accused and the details of the interrogation" [citations and internal quotation marks omitted]; People v Lin, 26 NY3d at 719.

The prosecution "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination" (Miranda v Arizona, 384 US 436, 444 [1966]). "[C]ustodial interrogation" was explained by the Supreme Court in Miranda to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" (id. at 444). By "procedural safeguards," the Miranda Court referred to warning defendant of her right to remain silent, that any statement made may be used as evidence against her, and that she has the right to an attorney [*9](see id. at 444-45).

It is well settled that statements made by a defendant at a preliminary stage of an investigation in response to a law enforcement agency's general inquiry are not generally considered the product of interrogation (see People v Johnson, 59 NY2d 1014, 1016 [1983]; People v Huffman, 41 NY2d 29, 33 [1976]).

Here, since there was no evidence presented at that hearing that the defendant in fact made any statements which the People served notice of their intent to use at trial, defendant's motion pursuant to CPL § 710.30 (3) to suppress the prosecution from introducing at trial any statements taken from defendant for which the People served notice under CPL § 710.30 (1)(a) is granted.

Based upon the above, the portion of defendant's motion which seeks to suppress the fruits of his arrest including the chemical blood test (and blood test results) on the basis that the arrest was unlawful is granted. The portion of the motion which sought to suppress any statements taken from defendant for which the People served notice pursuant to CPL § 710.30 is granted.^[FN7]