Defendant is charged with one count each of Driving While Intoxicated and Driving While Ability Impaired in connection with an incident that allegedly occurred on January 26, 2024 (VTL §§ 1192[3], [1]).

Defendant moves to suppress all noticed statements, physical evidence, evidence of his refusal to submit to chemical testing, police observations, video recordings, photographs, and all other fruits of his arrest by police. Defendant also moves to preclude statements he argues were not properly noticed.^[FN1]

The Prosecution opposes.

On February 11 and 27, 2024, the Court conducted a combined Dunaway, Huntley, Ingle, Mapp, and Refusal hearing. The Prosecution presented two witnesses, police officers Edgar Veras and Erica Arroyo. The Prosecution admitted into evidence the BWC of both officers as well as that of Intoxicated Driver Testing Unit (IDTU) officer Ralph Gaston. Defendant did not present any witnesses but admitted a photograph into evidence.^[FN2] After testimony was concluded, both parties made oral arguments.

The Court orally granted Defendant's motion to preclude statements pertaining to the second CPL §710.30(1)(a) notice, which lists thirteen BWC links but does not identify any specific statements. The Court reserved decision on the remainder of Defendant's application.

The Court now makes the following findings of fact and conclusions of law.

The Court finds as fact all events depicted in the videos admitted into evidence. The Court also credits the testimony of officers Arroyo and Veras to the extent set forth below and makes the following specific findings of fact.

Officer Edgar Veras has been employed by the New York City Police Department (NYPD) for twenty-one years. He is assigned to lead the auxiliary unit of the 88th Precinct. Officer Veras received training at the police academy, including how to identify intoxicated drivers. During his career, Officer Veras has made approximately five arrests for suspected driving under the influence.

On January 26, 2024, around 7:45 p.m., Officer Veras was working with a partner, Lieutenant Quintero, in uniform, in a marked police vehicle. Officer Veras was stationed at a checkpoint at the intersection of Lafayette Avenue and Flatbush Avenue in Kings County when he heard tires screeching. He turned to see Defendant's car abruptly stop behind his police vehicle. Officer Veras approached Defendant's car on the driver's side between traffic lanes and started knocking on his window; Lt. Quintero approached on the passenger side, which was next to the curb. Defendant was the sole occupant of the car and was wearing his seatbelt. His car was stopped at least two feet away from the police vehicle. Officer Veras did not observe Defendant commit any traffic infractions.

Defendant put his passenger side window down to speak with Lt. Quintero, then turned his wheel as if to leave. Officer Veras attempted to open the car door, but it was locked. Lt. Quintero instructed Defendant to park the car, and Defendant complied. Approximately thirty seconds after the police approached Defendant's car, Defendant opened the door and stepped out of the car. Officer Veras immediately grabbed Defendant by his arm and ordered him to get back in his car. On the opposite side of the car, Lt. Quintero removed Defendant's keys from the ignition. Defendant indicated to Officer Veras to let go of his arm; Officer Veras did not let go, and Defendant sat back down in the driver's seat. Immediately thereafter — approximately one minute from the time the officers first approached Defendant's car — Officer Veras and another officer ordered Defendant to get out of the car. Officer Veras and the other officer each gripped one of Defendant's arms, guiding him out of the car. Within ten seconds of getting Defendant out, Officer Veras handcuffed him. Standing about a foot away from Defendant, who was handcuffed, Officer Veras asked if he had been drinking, which Defendant denied. Officer Veras observed the smell of alcohol on Defendant's breath, Defendant's eyes to be bloodshot, and Defendant to be agitated. Officer Veras concluded that Defendant was intoxicated.

The other officer led Defendant to the hood of his car. Officer Veras opened the back driver's side door and shone his flashlight inside. While Defendant remained handcuffed, Officer Veras asked if he had paperwork or a license, whose car he had been driving, and what his name was. Officer Veras shone his flashlight into the front of the car and retrieved paperwork from the center console. He approached Defendant, again asking if he had a license. He reached into Defendant's jacket pocket while the other officer reached into his pants pockets. The other officer retrieved two small bottles of Johnny Walker Black whiskey, both of which were closed [*2]and full, from Defendant's pants pocket. From his other pants pocket, the other officer retrieved Defendant's wallet. While Officer Veras searched through Defendant's wallet, Defendant and Officer Veras conversed Spanish. Defendant became increasingly irate, shouting at Officer Veras. While Officer Veras ran Defendant's identification, Defendant lied down on the ground. Neither Officer Veras nor any other officer conducted any field sobriety tests.

Officer Erica Arroyo has been employed by the NYPD for approximately a year and half as a patrol officer. She received training from the police academy, including how to identify intoxicated drivers. This was her first and only arrest for suspected intoxicated driving.

On January 26, 2024, Officer Arroyo was assigned to train under another officer while working at the checkpoint at the intersection of Lafayette Avenue and Flatbush Avenue. She was working with a partner, Officer Vargas, in uniform, in a marked police vehicle. Around 7:44 p.m., Officer Arroyo was issuing a summons to another driver at the checkpoint when she heard screeching tires. She looked over, but did not approach immediately, as she was still finishing the summons. At 7:53 p.m., Officer Arroyo approached Defendant's vehicle, where she saw Defendant lying handcuffed on the ground and several officers standing nearby.

After several minutes, Officer Arroyo and two other officers got Defendant off the ground and put him in the back of a police car. Officer Arroyo and her partner transported Defendant to the IDTU at the 78th Precinct. At the precinct, Defendant was uncooperative. The police requested Emergency Medical Services, who transported Defendant to the hospital in an ambulance. Officer Arroyo accompanied them.

At some point, IDTU Officer Ralph Gaston joined them at the hospital. At 10:46 p.m., officers Gaston and Arroyo stood next to Defendant, who was handcuffed to a gurney, and Officer Arroyo held a cellphone with a purported translator on speakerphone. Officer Gaston asked Defendant in English if he would take a chemical test, and the person on speakerphone ostensibly repeated them to Defendant in Spanish. Defendant responded by saying, "no." Officer Gaston then issued refusal warnings in English at 10:46 p.m., and again the person on speakerphone again ostensibly repeated them in Spanish. Defendant replied, "okay, okay." The person on speakerphone said in English, "okay, he agreed." Officer Gaston then briefly addressed the person on speakerphone in English, saying he wanted to confirm Defendant's response. The person said something to Defendant in Spanish, to which Defendant replied in Spanish. The person on speakerphone told Officer Gaston in English, "he stated that he does not refuse." Officer Gaston asked the person on speakerphone if Defendant consented to giving blood; after a brief exchange in Spanish with Defendant, the person on speakerphone said something to Officer Gaston in English. Officer Gaston asked the person on speakerphone to tell Defendant he needed to sign paperwork; when the person ostensibly translated the request into Spanish, Defendant agreed. Officer Gaston handed Defendant the refusal warnings form, which Defendant signed. Officer Arroyo asked the person on the phone to ask Defendant in Spanish if he would take a breathalyzer test. Officer Gaston offered Defendant a portable breath test, which Defendant took. Shortly thereafter, Officer Arroyo read Miranda warnings in English and the person on speakerphone ostensibly translated them into Spanish.

At some point following Defendant's arrest, Officer Arroyo vouchered the two bottles of Johnny Walker Black taken from Defendant's pocket. Both bottles were sealed and full.

At a suppression hearing, the prosecution has the burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v Hernandez, 40 AD3d 777 [2007]; see also People v Berrios, 28 NY2d 361 [1971]; People v Wise, 46 NY2d 321 [1978]). To evaluate the police conduct, the Court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v DeBour, 40 NY2d 210 [1976]). If the prosecution satisfies the initial burden of going forward, the defendant "bears the ultimate burden of proving that the evidence should not be used against him" (People v Berrios, 28 NY2d at 367).

The Court of Appeals has established a four-tiered method for evaluating the propriety of police-initiated street encounters (People v DeBour, 40 NY2d at 223). Level one allows the police to request information based on an objective, credible reason, not necessarily indicative of criminality (DeBour at 223). Level one requests for information include only basic, nonthreatening questions, such as identity, address, or destination (People v Hollman, 79 NY2d 181, 185 [1992]). Level two is the common-law right of inquiry based on a founded suspicion that criminal activity is afoot (Debour at 223). Pointed questions that would lead the person approached to reasonably believe he or she is suspected of some wrongdoing require level two suspicion (People v Hollman, 79 NY2d at 185). Level three authorizes the police to forcibly stop and detain a person if the police have a reasonable suspicion that the person was involved in a crime (DeBour at 223). Finally, level four permits police to arrest a person based on probable cause that he or she has committed a crime (id.).

When police interfere with a moving vehicle, such a seizure must be supported by reasonable suspicion that criminality is afoot (People v May, 81 NY2d 725 [1992]). On the other hand, to approach a parked car, the police need only have an objective, credible reason not necessarily indicative of criminality (People v Harrison, 57 NY2d 470 [1982]). When a car is neither parked nor moving, the question of whether the police have effectuated a seizure by approaching the car comes down to whether a reasonable person faced with the same circumstances would have believed that the police conduct significantly limited his freedom (People v Ocasio, 85 NY2d 982 [1995]).

Although Defendant was not parked when police approached him, his car was already stopped; thus, the police needed at least an objective, credible reason not necessarily indicative of criminality to approach (People v Harrison, 57 NY2d 470; People v Ocasio, 85 NY2d 982). They had as much when they heard Defendant's tires screech to a halt after nearly rear-ending a police car. This provided a sufficient basis for them to approach Defendant's car and ask basic, nonthreatening questions, such as identity, address, or destination (People v Hollman, 79 NY2d 181, 185 [1992]). However, the police did not have any heightened suspicion at this point; Defendant's vehicle had not collided with anything, and Defendant had not committed any traffic infractions.

Lt. Quintero approached from Defendant's passenger side window, while Officer Veras approached from the driver's side. Neither had his gun drawn, nor used a siren or loudspeaker. Officer Veras did, however, block Defendant's exit path: the police vehicle was directly in front of him and behind him was oncoming traffic, so the adjoining lane where Officer Veras stood [*3]was the only way Defendant could have driven away. Although Lt. Quintero can be seen on BWC speaking with Defendant through the open passenger window, their exchange is inaudible from Officer Veras's vantage on the other side, behind a closed window. Nevertheless, Officer Veras testified credibly that Defendant parked his vehicle on Lt. Quintero's instruction. Lt. Quintero can also be seen pointing to Defendant's driver side door, where Officer Veras is knocking on the glass and attempting to open to door. It is unclear whether Lt. Quintero ordered Defendant out of the vehicle or Defendant got out on his own accord.

Without Lt. Quintero's testimony, the Court cannot surmise what, if any, indicia of intoxication he may have observed in the first thirty seconds of his interaction with Defendant. Moreover, even assuming arguendo that Lt. Quintero had observed some indicia of intoxication, nothing before the Court — including the BWC and Officer Veras's testimony — indicates that Lt. Quintero communicated any such information to Officer Veras before he grabbed Defendant's arm, ordered him to get back in his car, then pulled him out of the car and handcuffed him. The record is devoid of any evidence that would give rise to heightened suspicion beyond a level one encounter.

Officer Veras testified that he smelled alcohol on Defendant's breath at some point, but did not clarify exactly when. In any event, he could not have smelled the alcohol while Defendant was still in his car, as the window and door were closed. Because Lt. Quintero did not testify at the hearing, the Court has no basis upon which to determine whether he observed anything that would give rise to heightened suspicion prior to taking Defendant's keys. Assuming Officer Veras observed the smell of alcohol on Defendant's breath and his bloodshot eyes within the first thirty seconds after Defendant opened his car door, the police had founded suspicion that criminality was afoot (People v Wallgren; 94 AD3d 1339 [2012]).

From the moment Defendant stepped out of the vehicle, Officer Veras grabbed his arm and ordered him to get back in. At the same time, Lt. Quintero reached into Defendant's vehicle and took the keys. These actions — grabbing Defendant, ordering him to get back in his car, and taking his keys — would lead any reasonable person to believe he was not free to leave. Almost immediately thereafter, Officer Veras further constrained Defendant's freedom by ordering him back out of his vehicle and, with the help of another officer, pulling Defendant out by his arms. Ten seconds later, the police had Defendant handcuffed. This was plainly a seizure requiring reasonable suspicion (People v Ocasio, 85 NY2d 982; People v Harrison, 57 NY2d 470; People v DeBour, 40 NY2d 210; People v Atwood, 105 AD2d 1055 [1984]). Thus, their conduct was unlawful.^[FN3]

Although it is well established that evidence obtained because of illegal police conduct is inadmissible under the fruit of the poisonous tree doctrine, such exclusion does not apply "if the impact of the illegal arrest does not closely touch upon the challenged evidence" (People v Rogers, 52 NY2d 527, 532 [1981]). Sufficient attenuation between the police action and the ill-gotten evidence can overcome the taint of the original illegality (United States v Crews, 445 U.S.463, 471 [1980]). Attenuation may be sufficient "where the evidence challenged was the product of a source independent of the defendant's detention; and where the discovery of the [*4]challenged evidence was attenuated from the illegal activity by a significant intervening event which [justifies] the conclusion that that evidence was not the product of the illegal activity" (People v Rogers, 52 NY2d at 533). In short, the question of exclusion boils down to whether the evidence was obtained by exploiting the illegality or by some sufficiently distinguishable means (Brown v Illinois, 422 U.S. 590 [1975]).

There is no such attenuation here. Less than a minute and a half after handcuffing Defendant, the officers frisked him and pulled the two small bottles from his pants pocket. From there, they maintained control over Defendant, transporting him to the precinct and then the hospital. The chain of events was swift and unbroken; there exists neither an independent source by which the police gathered this evidence nor a significant intervening event. Accordingly, all evidence obtained by the police following their unlawful conduct must be suppressed (People v Newson, 155 AD3d 768).

Even assuming there was sufficient attenuation here, the Court notes that the Prosecution failed to elicit any testimony about Defendant's purported noticed statements. There is simply nothing before the Court to evaluate.

Although evidence of Defendant's refusal to submit to chemical testing must be suppressed as fruit of the poisonous tree, it is also inadmissible because it occurred more than two hours after his arrest (VTL §1194[2][b][1]; People v Odom, 31 NY3d 344 [2018]). VTL §§ 1194 and 1195 govern the admissibility of chemical testing or the voluntary refusal to submit thereto, including a provision that such testing or refusal thereof should occur within two hours of arrest (People v Atkins, 85 NY2d 1007 [1995]). Defendant was handcuffed and arrested at 7:46 p.m. The first time he was offered a chemical test was at 10:46 p.m., three hours later. As such, evidence of Defendant's refusal is inadmissible.

Moreover, the Prosecution failed to demonstrate that Defendant refused to submit to chemical testing at all. Defendant is visible apparently consenting to the blood draw on Officer Arroyo's BWC. Defendant's responses to Officer Gaston's questions are in Spanish, for which the Prosecution has not provided a certified translation. Nevertheless, if the supposed translator the police called on speakerphone provided an accurate account, Defendant indeed consented to chemical testing verbally, by signing the consent form, and by blowing into the portable breath test. The Prosecution did not put forth any evidence showing his refusal.

For the reasons described above, Defendant's motion to suppress is GRANTED in its entirety.

This constitutes the decision and order of the Court.