People v. Borst
| Decision Date | 11 September 2015 |
| Citation | 49 Misc.3d 63,20 N.Y.S.3d 838 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Alan BORST, Appellant. |
| Court | New York Supreme Court — Appellate Term |
49 Misc.3d 63
20 N.Y.S.3d 838
The PEOPLE of the State of New York, Respondent,
v.
Alan BORST, Appellant.
Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.
Sept. 11, 2015.
Joseph M. Latino, Croton-on-Hudson, for appellant.
Janet DiFiore, District Attorney, White Plains (Raffaelina Gianfrancesco, Steven A. Bender and Richard Longworth Hecht of counsel), for respondent.
PRESENT: IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
Appeal from four judgments of the Justice Court of the Village of Mamaroneck, Westchester County (Christie L. Derrico, J.), rendered May 2, 2013. The judgments convicted defendant, upon his pleas of guilty, of driving while intoxicated (per se), driving while intoxicated (common law), disobeying a traffic control device, and speeding, respectively. So much of the appeal as is from the judgments convicting defendant of driving while intoxicated (per se) and driving while intoxicated (common law) brings up for review an order of the same court dated October 17, 2012 which, upon reargument, adhered a prior determination of the same court denying, after a hearing, defendant's application to suppress the results of a chemical test for blood alcohol content.
ORDERED that so much of the appeal as is from the judgments convicting defendant of disobeying a traffic control device and speeding, respectively, is dismissed as abandoned; and it is further,
ORDERED that the judgments convicting defendant of driving while intoxicated (per se) and driving while intoxicated (common law) are reversed, on the law, defendant's pleas of guilty to these charges are vacated, so much of the order dated October 17, 2012 as, upon reargument, adhered to the court's prior determination denying, after a hearing, defendant's application to suppress the results of a chemical test for blood alcohol content is vacated, defendant's application is granted, and the matter is remitted to the Justice Court for all further proceedings on these two charges.
Defendant was arrested and charged in separate accusatory instruments with driving while intoxicated (per se) (
Vehicle and Traffic Law § 1192 [2] ), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192[3] ), disobeying a traffic control device (Vehicle and Traffic Law § 1110[a] ), and speeding (
Vehicle and Traffic Law § 1180[a] ), respectively. Prior to trial, defendant made an application to suppress the results of a chemical test, which revealed a .16% blood alcohol content. A hearing was conducted, and the testimony demonstrated that, following defendant's arrest, his vehicle had been impounded and defendant had been taken to a police station, where he had been asked whether he would consent to take a chemical test. Defendant made several requests of the police to consult with counsel before consenting to take the test; however, these requests were denied since defendant did not have the telephone numbers of the three individuals he named and the police refused to try to obtain them. Defendant then requested that the police allow him to call 411 in order to obtain the numbers or that they retrieve his cell phones, which allegedly contained these contact numbers, from his car. When these requests were also denied, defendant agreed to submit to the test without the benefit of counsel's advice.
Following the hearing, the Justice Court denied defendant's application to suppress the results of the chemical test, finding that defendant had declined to contact counsel. Defendant moved for leave to reargue, contending that the court had overlooked or misapprehended the primary issue that was before it, namely, whether the police had failed to make reasonable and sufficient efforts to contact defendant's requested counsel. The People opposed the motion. The court granted reargument but adhered to its original determination denying suppression. Defendant ultimately pleaded guilty to all charges; however, he specifically conditioned his pleas on the fact that he was not waiving his right to appeal and that his application to suppress the results of the chemical test would not be withdrawn.1
It is well settled that a defendant who...
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...test if he or she requests assistance of counsel and no danger of delay in administration of the test is posed," People v. Borst , 49 Misc.3d 63, 20 N.Y.S.3d 838 citing People v. Washington , 23 N.Y.3d 228, 989 N.Y.S.2d 670, 12 N.E.3d 1099 ; People v. Shaw , 72 N.Y.2d 1032, 534 N.Y.S.2d 929......
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