People v. Barahona

• Decision Date: 08 August 2019
• Docket Number: 2018BX037112
• Citation: 64 Misc.3d 1227 (A),117 N.Y.S.3d 801 (Table)
• Parties: The PEOPLE of the State of New York v. Angel BARAHONA, Defendant.
• Court: New York Criminal Court

64 Misc.3d 1227 (A)
117 N.Y.S.3d 801 (Table)

The PEOPLE of the State of New York
v.
Angel BARAHONA, Defendant.

2018BX037112

Criminal Court, City of New York.

Decided on August 8, 2019

Defense: Falon Rainer, Esq., The Bronx Defenders 360 East 161st Street Bronx, NY 10451

Prosecution: Assistant District Attorney Allison Pridmore Bronx County District Attorney's Office 198 E. 161st Street Bronx, New York 10451

Beth Beller, J.

The defendant stands charged with 3 counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Penal Law §§ 1192[3], 1192[2], 1192[1] ). On May 3, 2019, this Court held a combined Huntley/Dunaway/Johnson hearing. At the conclusion of the hearing, defense counsel asked for permission to submit the defendant's suppression arguments to the Court in writing and the Court granted permission. On May 20, 2019, the defendant submitted his written Post-Hearing Argument in Support of his Motion to Suppress. The defendant argues that evidence of the results of the breathalyzer test, as well as the defendant's statements at the scene and at the precinct should be suppressed as the People have not met their burden of showing that the defendant consented to the breathalyzer test or made the statements voluntarily. In particular, the defendant argues that the People have not shown that the defendant understood English well enough to have voluntarily consented to the breathalyzer test or to understand the Miranda warnings given at the precinct before he made a series of statements. The defendant further argues that, with regard to his statements at the scene, the People have not provided sufficient evidence regarding the circumstances of some of those statements; in addition, they must also be suppressed as the product of custodial interrogation without Miranda warnings.

On June 11, 2019, the People submitted an Affirmation in Opposition to the defendant's motion. After reviewing the arguments of the parties, the defendant's motion to suppress is denied in its entirety.

Findings of Fact

The People called a single witness at the hearing:¹ Police Office Brian Cintron of the 48th Precinct of the New York Police Department. Police Officer Cintron testified in sum and substance as follows: Police Officer Cintron is a uniformed officer assigned to patrol, who has been a police officer for seven years and has made approximately 130 arrests; approximately 20 of those were for driving while intoxicated. Officer Cintron received training in what to look for to assess if a person was an intoxicated driver in the Police Academy. He was trained to look for slurred speech, watery, bloodshot eyes, whether someone was unsteady on their feet and, at times, whether the person had soiled clothing. He was also taught how to administer a portable breath test. In addition, based on his experiences in his personal life, the officer knew that intoxicated people had the same indicia of intoxication that he had been taught about in the Police Academy. This Court finds Officer Cintron to be credible in all respects and bases its Findings of Fact on his testimony.

On November 4, 2018, Officer Cintron and his partner, Police Officer Montanez, were in uniform on patrol in a marked police car from 11:15 p.m. to 7:15 a.m. At about 2:05 a.m., the officers received a radio run directing them to the scene of a motor vehicle accident at West Farms Road and Boston Road in Bronx County. The road was dark, but was lit by street lamps. At about 2:10 a.m., as the officers arrived at the intersection, Officer Cintron saw two vehicles sitting on the shoulder of West Farms Road. One was a dark SUV with a man sitting inside of it; the other was a yellow Ford Fusion. Officer Cintron testified that the vehicles appeared to have sideswiped each other, because the front quarter panel of the defendant's car was dented and the entire driver's side of the other vehicle was scraped and dented. The defendant was seated in the driver's seat of the Ford Fusion and another person was in the front passenger seat. Officer Cintron parked behind the SUV. The man in that vehicle told Officer Cintron that, as he was driving through the intersection, the defendant veered into his lane causing the collision. The man further stated that he could smell alcohol coming from the defendant, he appeared to be highly intoxicated, and that after the accident, the defendant had tried to leave the scene.²

Officer Cintron and his partner approached the defendant, who was seated in the driver's seat of the Ford Fusion.³ The window was down and Officer Cintron noticed that the defendant had watery, bloodshot eyes and, even though he was about a foot away from the window, he could smell the odor of alcohol coming from the defendant's breath. As Officer Cintron stood next to his partner, Officer Montanez spoke with the defendant in Spanish, asking him, "What happened?" The defendant responded in Spanish and although Officer Cintron understood what the defendant was saying, his partner nonetheless translated the defendant's response to him,⁴ which was, "I was driving through the intersection and the other car came and hit me." When the defendant spoke, Officer Cintron noticed that the defendant's speech was a little slurred. Neither officer gave the defendant Miranda warnings before speaking with him as the defendant was not in custody. Officer Cintron approached the driver's side window and asked the defendant to step out of his vehicle. The defendant complied and as he got out of the car, Officer Cintron saw a wet stain on the crotch area of his pants; he also saw that he was unsteady on his feet. Although both officers carried service revolvers and a baton, neither officer had drawn their weapons when they spoke with the defendant or when the defendant was asked to get out of the car.

Officer Cintron asked his partner to ask the defendant in Spanish if he would be willing to take a breathalyzer test and Officer Montanez offered it to him. The defendant replied, "Yes." A portable breathalyzer test was administered to the defendant — the result showed a blood alcohol level of .232. Officer Montanez placed the defendant in handcuffs. After the defendant was arrested, he was searched and car keys were recovered from his pocket.⁵ The defendant was placed in the back of the police vehicle. Officer Montanez drove the defendant's car back to the precinct; he told Officer Cintron that the driver's seat was wet.

The defendant was placed under arrest at 2:45 a.m. He was brought to the 45th precinct to meet with highway officers for an IDTU test. The defendant was in the holding cell for about 45 minutes; while he was in there, Officer Cintron saw the defendant speaking with other prisoners in English. Officer Cintron heard the defendant reply, "Yes," in English when one of the other prisoners asked him a question. At some point, the defendant asked Officer Cintron in English if he could go to the bathroom and Officer Cintron agreed. While the defendant was in his cell, Officer Cintron also spoke to the defendant in English and the defendant responded to him in English.

While the defendant was at the 45th precinct, Officer Cintron noticed he had watery bloodshot eyes, was unsteady on his feet, had the odor of alcohol emanating from his breath, and had soiled clothing and slurred speech. As shown by the IDTU video, People's Exhibit 3 in evidence, and as testified to by Officer Cintron, Officer Outlaw, an IDTU officer, offered the defendant a chemical test analysis of his breath. The defendant agreed to take it, stating, "Yes," when it was offered. Officer Cintron observed the defendant for 20 minutes before the test was administered. He did not cough, vomit or belch during the 20 minute period. At approximately 5:00 a.m., the defendant blew into the breathalyzer machine. The result was a .11. The defendant was offered a physical coordination test, but he could not complete it because he had an issue with his right knee.

The IDTU video also reflects the following in sum and substance: IDTU Officer Outlaw began by addressing the defendant as Mr. Angel Barahona, to which the defendant replied, "Yes, Sir." The defendant also acknowledged his date of birth. Before he was asked to take the breathalyzer test, the defendant stated his name and gave his address in English. When the officer stated that he had been arrested for operating a motor vehicle while impaired, the defendant indicated that he was not. The officer explained that he was not there during the defendant's arrest, that he was just advising the defendant that he had been arrested for operating a motor vehicle while impaired, and that he was offering him a breath test. Officer Outlaw then asked the defendant if he would take the test and the defendant said, "Yes," and nodded yes. Specifically Officer Outlaw stated, "I would like to offer you a breath test. Will you take the test? Yes or no?" The officer told the defendant where to stand and asked him again if he would take the breath test; the defendant replied, "Yeah."⁶ The officer again told the defendant where to stand and after explaining that the machine was operating properly, told the defendant that, when he tells him to blow, he should take a deep breath, bend over, put the entire mouth piece into his mouth and blow into it for about 3 to 5 seconds. The defendant affirmed that he understood the officer's instructions. The officer told him that when he said blow, the defendant should keep going until he was told to stop. The officer told the...