People v. Capraella
| Decision Date | 26 June 1995 |
| Docket Number | AP-2 |
| Citation | 629 N.Y.S.2d 965,165 Misc.2d 639 |
| Parties | The PEOPLE of the State of New York v. Nicholas CAPRAELLA, Defendant |
| Court | New York City Court |
Richard A. Brown, Dist. Atty., Queens County by Joseph Fein, Asst. Dist. Atty. for the People.
Jose Gonzalez, for defendant.
JOSEPH ANTHONY GROSSO, Judge.
The defendant, charged with Vehicle and Traffic Law § 1192(1), moves for an order suppressing statements and for an order suppressing the results of a breathalyzer examination.
A hearing on these issues was held on June 20, 1995 and one witness, Police Officer Kevin Dunn, testified. I find Officer Dunn's testimony to be candid, forthright and consistent and find as follows:
On May 6, 1995 at approximately 1:30 AM, Officer Dunn was assigned to a so called DWI checkpoint at Steinway Street and 34th Avenue in Queens County. Pursuant to the procedures established for this checkpoint, every vehicle was stopped and every driver was asked if he or she had been drinking. If the driver answered affirmatively, he or she was asked to submit to an alco-sensor field sobriety test. At about 1:30 AM, the defendant entered the checkpoint area and in response to the officer's question indicated that he had been drinking. At this time, the defendant exhibited the classic signs of intoxication, slurred speech, bloodshot watery eyes, an odor of alcohol and unsteadiness on his feet. The defendant agreed to submit to an alco-sensor test and the results indicated a blood alcohol content of 0.15 of one percent. This test was re-administered to the defendant approximately nine minutes later with identical results and the defendant was then arrested and taken to the 114th Precinct where pedigree information in connection with the arrest was taken. While en route to the 114th Precinct, the defendant asked Officer Dunn what was going to happen. The officer told the defendant that he would be given a breathalyzer examination and that if his blood alcohol content registered 0.06 of one percent or less, that he would be released; that if he refused to submit to the breathalyzer test that his license would be revoked; that if he took the breathalyzer examination and his blood alcohol content registered 0.10 of one percent or greater, that his license would be suspended. This exchange occurred somewhere between 1:40 AM and 2:00 AM. [A similar exchange between Officer Dunn and the defendant took place at approximately 4:15 AM, immediately before the defendant took the breathalyzer examination.] Thereafter, the defendant was transported to the Intoxicated Driver Testing Unit at the 112th Precinct. It was here that Officer Dunn advised the defendant of his Miranda rights prior to questioning him from the IDTU questionnaire. Each and every Miranda warning was given and acknowledged by the defendant who voluntarily agreed to answer questions.
At some point after the IDTU questionnaire was completed by Officer Dunn, the defendant was asked if he would submit to a breathalyzer examination. Once again, the three alternatives described above were stated to the defendant by Officer Dunn. The defendant, without any apparent hesitation or protest, took the breathalyzer test at 4:15 AM. The results showed 0.09 of 1% of alcohol in the blood. The People concede that the breathalyzer examination was administered more than two hours from the defendant's arrest. The defendant was next taken to Central Booking and en route indicated to Officer Dunn that he had consumed about 10 beers that evening and not the two beers as he had previously indicated on the IDTU questionnaire. The People concede that notice of this statement was never provided to defense counsel pursuant to CPL 710.30(1)(a).
I conclude that the DWI checkpoint and the manner in which it was effected to be a proper exercise of the police power (see e.g., People v. John B.B., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864 [1982]. Accordingly, the stop of the defendant was proper. Officer Dunn's request that the defendant submit to an alco-sensor test was proper in view of the defendant's response to the officer's preliminary inquiry. The alco-sensor results provided probable cause to arrest the defendant.
With respect to the statements attributed to the defendant, I conclude that those memorialized in the IDTU questionnaire were freely and voluntarily made following the full administration and acknowledgement of the Miranda warnings. Accordingly, these statements are admissible. With respect to the statement attributed to the defendant while being transported from the 112th Precinct to the Central Booking facility, the People are precluded from introducing this statement at trial. This statement was not contained with the requisite specificity in the CPL 710.30(1)(a) notice and good cause for the failure to do so was not provided (see, People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213 [1987]; People v. Lopez, 84 N.Y.2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994].
The main issue in this case, whether chemical test results should be admissible at trial when the test was administered after two hours of arrest, was recently addressed by the Court of Appeals. In People v. Atkins 85 N.Y.2d 1007, 630 N.Y.S.2d 965, 654 N.E.2d 1213 (1995) by a 4-3 decision the court apparently held that where a defendant expressly and voluntarily consents to submit to a chemical test that the so called "two hour rule" of Vehicle and Traffic Law § 1194(2) is inapplicable. It is unclear whether this holding will be limited to the facts presented (consent to submit to the test within two hours of arrest--administration of the test after two hours of arrest) or whether, as the dissent strongly suggests, this holding will apply to all situations where an individual expressly consents to take a chemical test regardless of when the consent occurs. It appears to me that the majority decision has, in effect, written out of Vehicle and Traffic Law § 1194(2) the "two hour rule" in cases of express consent.
While this decision resolves an issue that has spawned much litigation in the local criminal courts throughout the state in recent years, it invites litigation in areas that arise daily in our courts. Some of these issues are:
a) With respect to sufficiency of misdemeanor pleadings, must express consent be pleaded in a Vehicle and Traffic Law § 1192(2) count where chemical test was administered beyond two hours of arrest?
b) With respect to the suspension of a defendant's license due to an excessive blood alcohol content pending prosecution (Vehicle and Traffic Law § 1193[2][e][7], should the license be suspended where the chemical test was administered beyond two hours?
c) With respect to the statutory probative values assigned to certain blood alcohol content levels in Vehicle and Traffic Law § 1195, are these values still viable in situations where the chemical test was administered after two hours of the defendant's arrest?
d) With respect to evidence of a defendant's refusal to submit to a chemical test, will such evidence be admissible if the refusal occurs beyond two hours of a defendant's arrest? (Vehicle and Traffic Law § 1194[2][c]; contrast People v. Brol, 81 A.D.2d 739, 438 N.Y.S.2d 424 [4th Dept.1981] and People v. Morales, 161 Misc.2d 128, 611 N.Y.S.2d 980 [Criminal Court, City of New York, Kings County, 1994].
e) With respect to the issue presented in this case, what standards should we, as trial level court, apply in determining whether an individual expressly and voluntarily consents to submit to a chemical test more than two hours from the point of arrest?
In examining the procedures contained in Vehicle and Traffic Law § 1194 vis a vis current case law, I am led to conclude that a traditional Fourth Amendment analysis of "consent searches/seizures" is inapplicable to situations where a chemical test is consented to after two hours of arrest.
It seems clear that the taking of a breath sample, as was done here, is a search within the meaning of the Fourth Amendment (see, Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 [19...
To continue reading
Request your trial
-
People v. Benoit
...without more can result in a voluntary consent as long as there is no express or implied coercion by law enforcement ..." People v. Capraella , supra. The People have the burden of demonstrating such voluntary consent by "clear and positive evidence," People v. Capraella , 165 Misc.2d 639, ......
-
People v. Barahona
...clear and positive evidence. Once they have met that burden, the defendant bears the burden of negating consent. People v. Capraella , 165 Misc 2d 639, 644 (Queens County Crim. Ct. 1995). The People have met their burden and the defendant has not. The crux of the defendant's argument is tha......