People v. Borzon
| Decision Date | 14 November 2014 |
| Docket Number | No. 3434–2013.,3434–2013. |
| Citation | 7 N.Y.S.3d 244 (Table) |
| Court | New York Supreme Court |
| Parties | The PEOPLE of the State of New York, v. Bruce BORZON, Defendant. |
Brendan Ahern, Esq.
Steven Epstein, Esq., Barket Marion Epstein & Kearon, LLP, Justin Siebel, Assistant District Attorney, Office of the Bronx District Attorney.
Defendant is charged with four counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[3] as an “E” felony, a “D” felony, and a misdemeanor; and Vehicle and Traffic Law § 1192 [1 ] ). Defendant moved, among other things, for suppression of statements made by him and his refusal to submit to a chemical breath analysis on the basis that they were unlawfully obtained in violation of the Fourth Amendment of the United States Constitution and article I, § 12, of the New York State Constitution, claiming they were improper and fruits of an unlawful arrest.
Specifically, the defendant contends that: (1) his arrest was not supported by the requisite probable cause; (2) there was an insufficient basis to request he submit to a chemical breath test; (3) the refusal warnings provided were not clear and unequivocal; (4) any refusal was not persistent as required by Vehicle and Traffic Law 1194(2)(f) ; (5) his statements made to the IDTU officer immediately preceding his purported refusal are subject to Criminal Procedure Law § 710.30(1)(a) preclusion; (6) such statements were the product of a custodial interrogation and obtained without Miranda warnings; (7) failure to procure any and all Emergency Medical Service (EMS) reports constitutes a Rosario violation; and, (8) destruction of the 911 tape requires an adverse inference charge.
The District Attorney contends that the defendant's arrest was based upon sufficient probable cause, that there was a legally sufficient basis upon which to administer the Intoxilyzer test, that both the refusal warnings and defendant's refusal was entirely proper, that any statements made in connection with the administering of an Intoxilyzer test or the refusal to do so are neither subject to CPL 710.30(1)(a) notice nor Miranda, and an adverse inference charge concerning the 911 tape's destruction is unwarranted.
On September 8, 2014, this court commenced a combined Huntley/Dunaway/ Refusal hearing.1 The hearing continued, and concluded, on September 15, 2014. The People called one witnesses: Police Officer Martin Neff (PO Neff), assigned to the 43 Precinct. This court finds the testimony of PO Neff credible to the extent indicated herein. The defendant did not call any witnesses. Upon the close of testimony, this court heard oral argument from both the defendant and the People, and adjourned the matter until October 22, 2014, for decision. Pursuant to defense counsel's request, however, this court, by interim decision and order dated October 2, 2014, denied defendant's CPL 710.30(1)(a) preclusion claim.2 On October 22, 2014, this court received a supplemental memorandum of law from the defendant in connection with his suppression claim arguing that such statements were the product of a custodial interrogation obtained without Miranda warnings.
Based upon the evidence presented, the parties' arguments, and their written post-hearing memoranda, this court finds that the defendant's arrest was supported by probable cause, that there was a reasonable basis to request he submit to a chemical blood-alcohol breath test, that his statements made to the IDTU officer were neither subject to CPL 710.30(1)(a) preclusion nor the product of a custodial interrogation, and that that People's failure to provide EMS reports did not constitute a Rosario violation. As such, these branches of defendant's motion are denied. With regard to the defendant's purported refusal to take the Intoxilyzer chemical breath test, however, this court finds the refusal warnings were not clear and unequivocal. All evidence and testimony relating to such refusal is therefore suppressed. Finally, this court also grants defendant's application for an adverse inference charge relating to the destruction of the 911 audiotape recording.
On August 26, 2012, at approximately 3:25 a.m., PO Neff, dressed in full uniform and working with his partner, PO Schmidt, responded to Thieriot Avenue and Guerlain Street in Bronx County pursuant to “a call of an unconscious male in a vehicle” (H.12). PO Neff testified that upon arriving, he observed the defendant alone, sitting behind the wheel of a Toyota with the keys in the ignition and the engine running (H.59). EMS was also on the scene. No other occupants were in the vehicle. PO Neff observed the Toyota positioned at approximately a 90 degree angle into “the middle of roadway ... several inches away from another vehicle” (H.11–13).
PO Neff observed the defendant to be in a stupor, and noticed a heavy smell of alcohol. He testified that the defendant was unable to answer questions (H.13). Additionally, because the driver's side of the vehicle was wedged against an obstruction, the officers positioned themselves on the passenger side to determine whether the defendant needed medical attention. PO Neff noted that while the vehicle was in park, an EMS attendant indicated that upon their arrival, the vehicle was in gear and an EMS attendant had placed it in park (H.13–14).
Upon attempting to communicate with the defendant, PO Neff stated that he was incoherent, had slurred and indecipherable speech, and in response to the request for his license and registration, the defendant handed PO Neff his credit card. After being extricated from the vehicle through the passenger side, the defendant was “unable to stand” on his own requiring POs Neff and Schmidt to “physically hold him up.” In so doing, PO Neff stated the defendant was “directly next to me ... [and] had a very heavy odor of alcohol” (H.15). At no time was the defendant asked about his medical history, or whether he required immediate medical attention (H.15, 73–74, 90). But having made these observations, and based on his training and experience, PO Neff concluded that the defendant was intoxicated. At approximately 3:44 a.m., PO Neff placed the defendant under arrest for operating a motor vehicle while under the influence of alcohol (H.16–17).
After being placed under arrest, the defendant was transported to the 45 Precinct at approximately 4:10 a.m. for the purpose of administering an Intoxilyzer breath test. PO Neff stated that upon arriving, the defendant “wasn't able to hold himself up, so my partner and I physically had to carry him into the 45 Precinct.” Once inside, New York City Police Department Highway Patrol Officer Cardamone (PO Cardamone) initiated the breath test by asking:
PO Cardamone then offered the defendant an opportunity to submit to an Intoxilyzer breath test at approximately 5:00 a.m., which was preserved on videotape (H.17–18).3 The videotape reflects that the defendant responded by asking, PO Cardamone then stated:
CPL 140.10(1)(b) provides, “[s]ubject to the provisions of subsection two, a police officer may arrest a person for: A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” Probable cause, or reasonable cause, does not require proof “sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed ... The legal conclusion is to be made after considering all of the facts and circumstances together” (People v. Bigelow, 66 N.Y.2d 417, 423 [1985], quoting People v. McRay, 51 N.Y.2d 594, 602 ; see also People v. Maldonado, 86 N.Y.2d 631, 635 [1995] ).
At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of the police conduct (People v. Baldwin, 25 N.Y.2d 66 [1969] ; People v.. Malinsky, 15 N.Y.2d 86 [1965] ). The People must, therefore, demonstrate that the police acted with probable cause when they arrested the defendant (People v. Bouton, 28 N.Y.2d 130 [1980]; People v. Berrios, 28 N.Y.2d 361 [1974] ). Once this burden has been met, the defendant is responsible for proving the conduct was illegal (Berrios, 28 N.Y.2d at 361 ; Baldwin, 25 N.Y.2d at 66 ). Evidence obtained by an unconstitutional search is inadmissible and vitiates conviction (see Mapp v. Ohio, 367 U.S. 643 [1961] ).
In sustaining their burden, the People must demonstrate that the circumstances authorized the officer's behavior. In assessing the scope of intrusion permissible under a given set of circumstances, the New York...
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