People v. Eisenoff

• Citation: 467 N.Y.S.2d 802,121 Misc.2d 222
• Parties: The PEOPLE of the State of New York v. Myra A. EISENOFF, Defendant.
• Decision Date: 06 October 1983
• Court: New York Town Court

Page 802

467 N.Y.S.2d 802

121 Misc.2d 222

The PEOPLE of the State of New York v. Myra A. EISENOFF, Defendant.

Justices Court, Town of Rhinebeck,

Dutchess County.

Oct. 6, 1983.

William V. Grady, Acting Dist. Atty., Dutchess County, Poughkeepsie, for the People.

Bernard Kessler, Hyde Park (Valintino Sammarco, Hyde Park, of counsel), for defendant.

HERMAN H. TIETJEN, Justice.

On November 14, 1982, while working the 3:00 p.m. to 11:00 p.m. shift, State Police Officer Harold Bloomer received a radio call to report to a motor vehicle accident at the intersection of Rt. 199 and River Road, Town of Rhinebeck. Upon arrival, he saw two vehicles, one stopped on the south shoulder of Rt. 199, with damage on the driver's side and the other vehicle still in the roadway, with the front end damaged. The driver of the first vehicle was sitting in the car and the driver of the other vehicle was outside her vehicle. The officer ascertained the identities of the drivers, the defendant voluntarily identifying herself as one of the drivers. He inquired of the defendant as to the occurance and was advised that she was proceeding north from a Rhinebeck tavern to Bard College. The officer noted that the defendant's eyes were bloodshot, she was staggering, there was a strong odor of alcohol emanating from her mouth, she did not know what happened and she was disoriented. Upon further investigation, through a conversation with one of the passengers in the defendant's car and studying the positions of the vehicles and points of impact, the officer learned that the defendant was actually driving south to Rhinebeck instead of north to Bard College.

Upon direct examination, the officer testified as to his familiarity with discerning the characteristics of an intoxicated person. Upon cross examination, defense counsel probed deeper into the question of ability to recognize an intoxicated person. The defense attempted to have the officer articulate the difference between an intoxicated person and one who might have been in shock or suffering from other malady that may give rise to the appearance of intoxication.

The officer placed the defendant under arrest while she was in the hospital emergency room. This took place approximately forty-five minutes to an hour after his arrival at the accident scene. The officer read the defendant her statutory rights pursuant to Vehicle and Traffic Law, Sec. 1194, regarding the consequences of a refusal to submit to an alcohol test and then read her the rights in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Defendant was requested by the hospital authorities to sign a form permitting the removal of her blood. Removal of the blood was made by the physician in charge of the emergency room shortly after the defendant had been read her rights. The officer testified that the defendant was capable of refusing to consent but did, in fact, consent to a blood sample being removed.

During the course of defense counsel's cross examination of the arresting officer, the Assistant District Attorney gave the defense attorney an affirmation dated January 28, 1983, regarding any statements made by the defendant to police officers in accordance with the notice requirements of CPL 710.30. A copy of the notice had been previously furnished to the Court but allegedly none to the defendant's attorney. In addition, the copy given to the defendant's attorney contained an interliniation of some additional information not found in the Court's original copy.

The People agreed that the CPL 710.30 notice was not served since the District Attorney had not received any information from the State Police about the case until a considerable time after the arrest. The District Attorney argued that, "If the defendant takes it upon herself to make a motion to suppress statements in spite of the fact that CPL 710.30 notice has not been served ... and the Court has the opportunity to hear the testimony and made a ruling on those statements, then a CPL 710.30 notice is moot". Defendant objected on the ground that had the notice been served, she might have called rebuttal witnesses. A continuation of the hearing was tendered by the People and agreed to by the Court but declined by defendant on the ground that the case had been pending for a considerable time.

There are four issues before this Court:

(a) Whether there was reasonable, probable cause to place defendant under arrest for driving while intoxicated?

(b) Whether the statements given by the defendant at the scene of the accident and later at the hospital were voluntary or coerced?

(c) Whether defendant's consent to a blood alcohol test was valid?

(d) Whether the District Attorney's failure to timely provide defense counsel with a notice pursuant to CPL 710.30 warrants the suppression of statements obtained from defendant and introduced at the suppression hearing?

This Court holds that (a) the People have shown sufficient probable cause to make an arrest; (b) that defendant's statements were voluntary; (c) defendant's consent to the alcohol test was freely given and (d) People's failure to give the required timely CPL 710.30 notice was cured by defendant's demand for a suppression hearing under CPL 710.40. We shall first treat the last issue.

As previously noted, the Assistant District Attorney served upon the defense counsel a CPL 710.30 notice during the course of the suppression hearing. He had added to the original notice the following new material, "She also admitted to driving. She admitted to drinking at the Rhinebeck Tavern". The previous statements attributed to the defendant as contained in the notice were "At the scene of the accident, the defendant stated to Officer Bloomer, ... that she did not see the other guy coming. At Northern Dutchess Hospital, she orally consented to the withdrawal of blood."

The aim of CPL 710.30 as well as the other related sections of Article 710 is to permit an orderly hearing and determination of relevant issues so as to prevent the need to interrupt a trial for the purpose of holding hearings to challenge the admission of particular evidence, People v. Anderson, 80 A.D.2d 33, 437 N.Y.S.2d 985 (1981) cf., People v. Briggs, 38 N.Y.2d 319, 379 N.Y.S.2d 779, 342 N.E.2d 557 (1976) (dissenting opinion, Jasen, J.). The genesis of pre-trial disclosure of statements, confessions, and similar information is grounded in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1964) in which the Court of Appeals announced the basic rules for pre-trial notices when it said, "The prosecutor must, within a reasonable time before trial, notify the defense as to whether any alleged confession or admission will be offered in evidence at the trial." The defendant, who sought to attack the confession and admission had to demand a preliminary hearing, see also, People v. Briggs, supra.

The Appellate Courts have exercised flexability in allowing the curing of defective or untimely notices pursuant to CPL 710.30 prior to trial, People v. Mosher, 81 A.D.2d 684, 438 N.Y.S.2d 392 (3rd Dept.1981), People v. Anderson, supra, People v. Jones, 69 A.D.2d 912, 415 N.Y.S.2d 124 (3rd Dept.1979). Once the trial has commenced and a statement given to police, not previously reported to the District Attorney, comes to light, no curing of a defective notice was allowed, People v. Spruill, 47 N.Y.2d 869, 419 N.Y.S.2d 69, 392 N.E.2d 1252 (1979). However, where the issue of "voluntariness" of the inculpatory statement has not been raised defects in the CPL 710.30 notice have been allowed to be cured under aegis of judicial discretion, People v. Balschweit, 91 A.D.2d 1127, 458 N.Y.S.2d 730 (3rd Dept.1983).

A predecessor to Spruill was People v. Briggs, supra. Both Spruill and Briggs were concerned with the question of determining the factors constituting "good cause" for permitting inculpatory statements to be offered once the trial had begun. In both cases, the Court of Appeals, in reversing convictions, sought to enforce discipline among law enforcement officers and District Attorneys by requiring adequate and full disclosure of inculpatory statements if they were to be admitted against a defendant at trial. The purpose of pre-trial notice "is to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or admission," People v. Briggs, supra, 38 N.Y.2d at 323-24, 379 N.Y.S.2d 779, 342 N.E.2d 557. If we interpret the philosophy of Briggs and Huntley correctly, a trial court has substantially less discretion in waiving a defective notice or no notice once trial has commenced than it has prior to trial, accord People v. Anderson, supra.

If the People were remiss in serving defendant with the required notice of their intention to offer inculpatory statements and this fact comes to light at the time of a suppression hearing, the trial court may permit, at that...