People v. Burnet

• Court: New York Supreme Court
• Writing for the Court: Richard Lee Price
• Citation: People v. Burnet, 2009 NY Slip Op 29107, 24 Misc.3d 292, 882 N.Y.S.2d 835 (N.Y. Sup. Ct. 2009)
• Decision Date: 03 March 2009
• Docket Number: No. 33828C-08,33828C-08
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. LEVI BURNET, Defendant.

24 Misc.3d 292

882 N.Y.S.2d 835

2009 NY Slip Op 29107

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. LEVI BURNET, Defendant.

No. 33828C-08

Supreme Court, Bronx County.

Decided March 3, 2009.

Bronx Defenders, Bronx (Kathryn Miller and Adeola Ogunkeyede of counsel), for defendant.

Robert T. Johnson, District Attorney, Bronx (Orville Reynolds and Jessica Groppe of counsel), for plaintiff.

OPINION OF THE COURT

RICHARD LEE PRICE, J.

The defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [1], [3]) and unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]) and moves to suppress any evidence or testimony concerning his alleged refusal to submit to a chemical breath analysis at trial, claiming: (1) that he was not provided with a clear and unequivocal warning of the consequences of refusing; (2) there was no mechanism to determine whether he understood the warnings that were given; (3) that any refusal was not persistent as required by Vehicle and Traffic Law § 1194 (2) (f); and (4) the New York City Police Department's failure to provide the defendant with an interpreter during the chemical breath testing process violated his rights under the Equal Protection Clause (US Const, 14th Amend, § 1) and Due Process Clause (US Const, 14th Amend, § 1; NY Const, art I, § 6) because it resulted in a disparate practice of affording both chemical breath and physical coordination tests to English-speaking defendants but only a chemical breath analysis to non-English-speaking defendants.

The District Attorney contends that evidence and testimony concerning the defendant's alleged refusal is admissible because there is no constitutional right to refuse, the warnings administered to him of the consequences of refusing were clear and unequivocal, that he understood them, and that his refusal was persistent in both words and conduct in accordance with Vehicle and Traffic Law § 1194 (2) (f).

On February 18, 2009, this court conducted a hearing on the issue of whether the People should be permitted to introduce evidence and elicit testimony concerning the defendant's alleged refusal to submit to a blood alcohol content (BAC) or Intoxilyzer breath test at trial, as well as whether the arresting officer's stop of the defendant's vehicle was justified and whether his demand that the defendant submit to a portable breath test (PBT) was proper. Upon hearing oral argument from both the defendant and the People concluding on February 24, 2009, and after reviewing their respective papers submitted in support thereof and documents on file with the court and viewing the video, defendant's motion is denied in its entirety.

Findings of Fact

At the hearing, the People called one witness, Police Officer Christopher Baumann, who stated that he has made approximately 600 arrests during his 13½ years as a New York City police officer, approximately 70 of which involved driving while intoxicated (hearing transcript at 4-5). The defendant called no witnesses. This court finds Officer Baumann's testimony credible to the extent indicated herein.

On June 1, 2008, at about 3:50 A.M., Police Officer Baumann of the 48th Precinct, working alone (hearing transcript at 5), observed a Chevrolet Impala, traveling on Webster Avenue from 180th Street in Bronx County, proceed "through three steady red lights up to 187th Street" (hearing transcript at 6). Officer Baumann, dressed in uniform and driving a marked police vehicle (hearing transcript at 5), stopped the Chevrolet Impala, exited his vehicle and approached the driver's side of the Impala (hearing transcript at 6-7). Relative to the subsequent events, Officer Baumann testified on direct examination as follows "Q: Did you approach the vehicle?

"A: Yes. I approached the driver's side of the vehicle. I asked the driver to produce a valid New York State license and paperwork to the vehicle.

"Q: Was the defendant able to produce a New York State license?

"A: No, he did not." (Hearing transcript at 7.)

"Q: In what language did you ask the defendant to produce such license?

"A: English.

"Q: Did the defendant indicate that he understood what you were asking him?

"A: Yes.

"Q: Okay. How so?

"A: In broken English.

"Q: What was his response?

"A: He stated he didn't have one." (Hearing transcript at 8.)

On cross-examination, Officer Baumann again testified as follows:

"Q: And you say that you asked Mr. Burnet for his driver's license?

"A: Correct.

"Q: Did you make any sort of gesture when you asked him that or did you say can I have your license and registration, do you recall?

"A: I request like all the time can I please have your license, registration card and insurance card to your vehicle?

"Q: It's your testimony that Mr. Burnet responded in some way?

"A: I believe he told me he did not have a license.

"Q: You believe he said that or he said that?

"A: He stated he didn't have a license." (Hearing transcript at 24-25.)

During Officer Baumann's conversation with the defendant, he observed that the defendant had "a strong odor of alcohol coming from his breath," bloodshot eyes, slurred speech and a flushed face (hearing transcript at 7, 25, 31-32). Officer Baumann, speaking in English, directed the defendant to exit his vehicle (hearing transcript at 7-8). The defendant complied and "stepped out of the vehicle . . . to the rear" (hearing transcript at 8-9). When walking to the rear of his vehicle, the defendant was unsteady, "swaying back and forth . . . rocking back, to the right, [and] to the left" (hearing transcript at 32). Again speaking in English, Officer Baumann asked the defendant to submit to a PBT, which he had been trained to administer. The defendant, again responding in English, agreed to take it (hearing transcript at 9). The PBT registered a .195% BAC and defendant was placed under arrest (hearing transcript at 10).

The defendant was taken to the 48th Precinct and then transported to the 45th Precinct for the purpose of having a highway¹ officer administer an Intoxilyzer breath test (hearing transcript at 10, 34). Once there, Highway Officer Edwards, speaking in English, offered the defendant an opportunity to take an Intoxilyzer breath test. The defendant then watched and listened to a videotape in Spanish offering him an opportunity to take the breath test (hearing transcript at 11).² The pertinent portion of that warning provided, as follows: "You have been arrested for driving a vehicle under the influence of alcohol or drugs. I would like you to take a chemical exam of your breath. Do you want to take the test, yes or no?"³

Defendant indicated that he would submit to the test by stating, "no problem."⁴ Officer Edwards demonstrated to the defendant the manner in which he was to use the mouthpiece and blow into the Intoxilyzer machine, after which the defendant appeared to nod in acknowledgment. The defendant walked to the machine and, in response to Officer Edward's directive in English, placed his hands behind his back (hearing transcript at 38). He inserted the mouthpiece of the machine into his mouth but failed to provide a sufficient breath sample.⁵ Being unable to obtain a reading, Officer Edwards instructed the defendant to blow. The defendant placed his mouth on the mouthpiece and appeared to make another attempt at blowing into the machine. Again, however, he failed to provide a sufficient breath sample. At that time, the defendant was brought in front of a video, which he watched and listened to in Spanish, that advised him of the consequences of refusing to submit to the Intoxilyzer breath test.⁶ The pertinent portion of that warning provided, as follows:

"or whatever part of the same, this will result in the immediate suspension and the subsequent revocation of your driver's license, or driving privileges, whether or not you are found guilty of the charges for which you have been arrested.

"Also, if you refuse to submit to a chemical test or whatever part of the same, this could be presented as evidence against you in any trial, proceeding, or hearing as a result of the arrest. I ask you again. Do you want to take the chemical test, yes or no?"⁷

After watching that videotape, the defendant responded, "No."

Conclusions of Law

Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable cause to show the legality of the police conduct (People v Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v Berrios, 28 NY2d 361 [1971]; People v Baldwin, 25 NY2d 66 [1969]). Here, the People have presented sufficient evidence that the stop of defendant's vehicle was proper based upon Police Officer Baumann's reasonable suspicion that the defendant had committed a violation of the Vehicle and Traffic Law (People v Ingle, 36 NY2d 413 [1975]). It is undisputed that the Officer observed the defendant's vehicle proceed through three steady red traffic signals. Accordingly, once Officer Baumann stopped the defendant's vehicle, he had a common-law right to approach the vehicle and inquire as to the reason for the defendant's traffic signal infractions. Upon approaching the vehicle, the Officer observed defendant, the sole occupant, seated behind the steering wheel. After requesting that the defendant produce a valid New York State driver's license, registration card and insurance card, Officer Baumann smelled a strong odor of alcohol emanating from defendant's breath and observed him to have bloodshot eyes, slurred speech and a flushed face. At that point, Officer Baumann had reasonable suspicion to believe that the defendant was intoxicated and was justified in directing him out of the vehicle (see People v De Bour, 40 NY2d 210, 223 [1976]). Upon observing that defendant was unsteady on his feet and...