People v. Aviles
| Decision Date | 22 November 2016 |
| Citation | 68 N.E.3d 1208,28 N.Y.3d 497 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jose AVILES, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Fried, Frank, Harris, Shriver & Jacobson, LLP, New York City (Aleksandr B. Livshits of counsel), and The Bronx Defenders, Bronx (V. Marika Meis of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Stanley R. Kaplan and Nancy D. Killian of counsel), for respondent.
Lowenstein Sandler LLP, New York City (Natalie J. Kraner, Catherine Weiss and Steven Llanes of counsel), and Amy S. Taylor, Make the Road New York, Brooklyn, for Make the Road New York, amicus curiae.
The New York City Police Department (NYPD) does not administer physical coordination tests when a language barrier prevents the administering officer from communicating the test instructions to a non-English speaking suspect. Defendant Jose Aviles challenges this policy, arguing that his equal protection and due process rights were violated because he was denied a coordination test on the basis of a language barrier. We disagree, and hold that the order of the Appellate Term should be affirmed.
Defendant was arrested after striking a marked New York City police vehicle that was entering traffic with its emergency lights on. According to the arresting officer, defendant had "a strong odor of alcohol on his breath," "slurred speech," and was "swaying and unsteady on his feet." At the scene of the accident, defendant made the following statement to the arresting officer: "I had a few Coronas about 15 minutes ago, about 3 Coronas."
After he was arrested, defendant was brought to an Intoxicated Driver Testing Unit (IDTU), where he consented to a breathalyzer test. The test, which was administered nearly three hours after the accident, resulted in a blood-alcohol content reading of .06—a reading below the .08 minimum required for a per se violation (Vehicle and Traffic Law § 1192[2] ). Defendant was not given a physical coordination test. Instead, the IDTU Technician Test Report contains a handwritten line crossing out the "Coordination Test" portion of the report, as well as a handwritten entry that reads: "No coord test given," and "Language Barrier." Defendant was ultimately charged with driving while impaired and driving while intoxicated (Vehicle and Traffic Law § 1192[1], [3] ).
Defendant moved to dismiss the misdemeanor information on the ground that the NYPD violated his rights under the Equal Protection and Due Process Clauses of the Federal and State Constitutions by failing to offer a physical coordination test on the basis of a language barrier. Specifically, defendant argued that, "while an English-speaking person arrested for driving under the influence of alcohol would ordinarily receive" a coordination test, defendant "was summarily denied this opportunity because of the language he speaks."1 The People opposed, contending that defendant was not denied equal protection, and that defendant's due process rights were not implicated by the NYPD's decision not to offer a coordination test based on defendant's inability to speak or understand English.
Criminal Court granted defendant's motion, holding that the "failure to provide the defendant—merely because he speaks
only Spanish—with access to ... potentially exculpatory evidence is a denial of his constitutional rights warranting dismissal." Specifically, the court determined that "the failure to administer the coordination test in this case constitutes a denial of due process and equal protection" under both the United States Constitution and the New York State Constitution. The Appellate Term reversed, holding that a similar constitutional challenge had recently been rejected by the Appellate Division (People v. Aviles, 47 Misc.3d 126[A], 2015 N.Y. Slip Op. 50347[U], 2015 WL 1295874 [App.Term, 1st Dept.2015], citing People v. Salazar, 112 A.D.3d 5, 973 N.Y.S.2d 140 [1st Dept.2013] ).
A Judge of this Court granted defendant leave to appeal (25 N.Y.3d 1198, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015] ). We affirm.
Pursuant to the Fourteenth Amendment of the United States Constitution, "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws" (U.S. Const. Amend. XIV, § 1 ). The New York Constitution provides for equivalent equal protection safeguards (N.Y. Const. art. I, § 11 ; see Hernandez v. Robles, 7 N.Y.3d 338, 362, 821 N.Y.S.2d 770, 855 N.E.2d 1 [2006] ).
Alleged equal protection violations are primarily evaluated using either a "strict scrutiny" or a "rational basis" standard of review. Where governmental action disadvantages a suspect class or burdens a fundamental right, the conduct must be subjected to "strict scrutiny," and will be upheld only if the government can establish a compelling justification for the action (Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 299–300, 98 S.Ct. 2733, 57 L.Ed.2d 750 [1978] ). While "facially neutral conduct can constitute discrimination" against a suspect class in violation of equal protection, such a claim "requires that a plaintiff show an intent to discriminate against the suspect class" (Soberal–Perez v. Heckler, 717 F.2d 36, 41–42 [2d Cir.1983] ). Where a suspect class or fundamental right is not implicated, the government action need only be rationally related to a legitimate governmental purpose (id. at 41 ).
Here, defendant's equal protection claim is premised on the notion that the NYPD's policy of offering physical coordination tests only in English amounts to intentional discrimination on the basis of ethnicity or national origin. But strict scrutiny is inapplicable to defendant's claim, as he has not demonstrated that the challenged policy singles out members of a suspect class, nor has he shown intentional discrimination. While Hispanics as an ethnic group constitute a suspect class (Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 197, 93 S.Ct. 2686, 37 L.Ed.2d 548 [1973] ), the NYPD policy at issue is facially neutral and is not based on race, ethnicity, or national origin. Rather, the policy is based solely on a suspect's ability to speak and understand English, which, by itself, does not implicate a suspect class (Soberal–Perez, 717 F.2d at 41 ). Nor has defendant demonstrated intentional discrimination based on his ethnicity. To the contrary, the record demonstrates that the officer's decision not to conduct a coordination test was based solely on a determination that a language barrier—not defendant's ethnicity—prevented the officer from administering the test.
The dissent contends that, where language "serve[s] as a proxy for national origin, ethnicity, and race," a defendant could establish intentional discrimination against a suspect class sufficient to invoke
strict scrutiny (dissenting op. at 509–511, 46 N.Y.S.3d at 486–87, 68 N.E.3d at 1217–18). We agree. To be sure, upholding the facial validity of the NYPD policy does not preclude all challenges to the policy as applied to a particular defendant where, for instance, the defendant was denied a coordination test on the basis of his ethnicity, as opposed to any language barrier. But that is not the case before us. The instant case presents no evidence of such intentional discrimination or other similarly compelling circumstances. Nor is there any indication that defendant's language was "treated as a surrogate" for his ethnicity or was a mere "pretext for racial discrimination" (Hernandez v. New York, 500 U.S. 352, 371–372, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ). Rather, defendant has consistently maintained that, as a non-English speaker, he "was summarily denied this opportunity because of the language he speaks " (emphasis added). The record supports the notion that the decision not to administer a coordination test was a purely language-based determination—not a determination based on race, ethnicity, or national origin. Accordingly, rational basis review, rather than strict scrutiny, applies to defendant's equal protection claim.
The challenged policy withstands rational basis review. Both the NYPD and the public have a substantial interest in ensuring the reliability of coordination tests, and the clarity of the instructions is crucial to the reliability of the results. Indeed, the record makes clear that coordination tests are designed not only to assess a suspect's "motor skills in completing the specific tasks," but also to evaluate the suspect's "capacity to ... follow instructions." But coordination tests are uniquely ill-suited for administration via translation; they are generally lengthy—containing 30 lines of instructions—and require contemporaneous demonstration and explanation of the tasks to be performed. The translation of instructions cannot be delegated to a translator, as the administering officer must have the requisite training and experience, and must be able to understand the translated instructions in order to accurately analyze the suspect's responses. Moreover, given the time-sensitive nature of coordination tests, requiring an administering officer to seek out an appropriately trained translator could result in a delay that affects the results (see Missouri v. McNeely, 569 U.S. ––––, ––––, 133 S.Ct. 1552, 1560, 185 L.Ed.2d 696 [2013] [] ). Indeed, the value of physical coordination tests diminishes with the passage of time, and test results eventually become entirely meaningless where they follow a prolonged delay. Nor can instructions "simply be recited through a video tape," as the tests require "specific clarity in instructions and interaction." The NYPD policy therefore rationally furthers the goals of avoiding delayed or erroneous results due to a language...
To continue reading
Request your trial