People v. Ferrara

• Decision Date: 01 June 1993
• Parties: The PEOPLE of the State of New York v. Joseph FERRARA, Defendant.
• Court: New York City Court

Page 86

602 N.Y.S.2d 86

158 Misc.2d 671

The PEOPLE of the State of New York v. Joseph FERRARA, Defendant.

Criminal Court of the City of New York,

Richmond County, AP 2.

June 1, 1993.

Felix T. Gilroy, Staten Island, for defendant.

William L. Murphy, Dist. Atty. by Asst. Dist. Atty., Eugene Byrne, for the people.

WILLIAM E. GARNETT, Judge.

On May 18, 1993, this court conducted a combined Dunaway, Huntley and refusal hearing.

The only witnesses were Police Officers Iacampo and Friscia. I find their testimony to have been credible.

The Court makes the following findings of fact:

On November 20, 1992, at approximately 2:10 p.m., Officer Iacampo was summoned to the scene of an auto accident on the Staten Island Expressway. Two vehicles, a 1979 Mercedes Benz and 1989 Ford van, had been involved in the accident. The Emergency Medical Service [E.M.S.] was already at the scene when the police arrived. The sky was clear and the roadway dry.

The operator of the Ford and his passenger told the Officer that the Mercedes Benz had swerved into the van's lane and struck the van and, as the Mercedes Benz attempted to make an adjustment, the Mercedes Benz hit the van a second time. Thereafter, the operator of the Mercedes Benz, the defendant, apparently lost control of his vehicle and hit the guardrail. Both of these individuals told the Officer that the defendant was intoxicated.

The Officer then spoke to the defendant who was in an E.M.S. ambulance. The defendant's speech was slurred, his eyes bloodshot and there was an odor of alcohol on his breath. The defendant was taken to the hospital for medical treatment. The Officer did not accompany the defendant to the hospital in the ambulance.

At the hospital, at approximately 4:15 p.m., Police Officer Iacampo asked the defendant to take an Alcosensor test. The defendant agreed and the reading was .14. At that time, 4:20 p.m., the defendant was placed under arrest. Police Officer Iacampo advised the defendant of his Miranda rights by reading from the front cover of his memobook which included the warnings. A copy of that cover was entered into evidence. The defendant was given his rights and he acknowledged that he understood them. However, he didn't waive his right to be silent as he refused to answer any questions.

Only five minutes later, and without repeating the warnings, the Officer began to ask the defendant questions to complete the PD 244 form [Intoxicated Drivers Examination]. Those questions included material which would not be characterized as mere pedigree information. In fact, it was these statements which were the subject of the C.P.L. § 710.30(1)(a) notice in this case.

Police Officer Friscia had been called to the hospital at about 3:30 p.m. to bring the Alcosensor and to administer a blood test. After the defendant took the Alcosensor test, the Officer offered the defendant a blood test. The Officer advised the defendant of the consequences of his refusal. The defendant was informed of the effect his refusal would have on his license and that, moreover, his refusal would be used as evidence at any subsequent trial. The defendant refused to take the blood test. Officer Friscia noted that the defendant had the odor of alcohol on his breath and that his eyes were bloodshot.

Approximately one hour after the defendant had refused to take the blood test, but still within two hours of his arrest, the defendant said he would take the test. No test was performed.

Conclusions of Law

When Police Officer Iacampo placed the defendant under arrest he had probable cause to do so. The defendant had been involved in a two-car accident in which he had apparently lost control of his vehicle and had swerved into a lane of traffic occupied by another vehicle. The defendant had bloodshot eyes, the odor of alcohol on his breath, slurred speech and had produced an Alcosensor reading of .14. These facts provided probable cause for the officer to conclude that the defendant had been driving while intoxicated.

The court concludes that the defendant's statements made in response to Police Officer's Iacampo's questions must be suppressed. The defendant was advised of Miranda warnings but refused to answer the questions.

Only five minutes later, and without reiterating the warnings, Officer Iacampo questioned the defendant for the purpose of completing the PD 244 form--the Intoxicated Driver Examination form. These questions encompassed material which went beyond mere pedigree information.

A defendant who initially refused to answer questions after the administration of Miranda warnings may thereafter be questioned if he or she is again advised of his or her rights and his or her initial refusal to answer questions was "scrupulously honored". Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); People v. Cyrus, 170 A.D.2d 526, 565 N.Y.S.2d 858 (2d Dept.1991). Further, there must have been a pronounced break between periods of questioning. People v. Bethea, 67 N.Y.2d 364, 502 N.Y.S.2d 713, 493 N.E.2d 937 (1986); People v. Chapple, 38 N.Y.2d 112, 378 N.Y.S.2d 682, 341 N.E.2d 243 (1975).

In this case, after the defendant refused to answer questions, his refusal was not "scrupulously honored". The Officer, without reiterating the warnings, commenced questioning the defendant only five minutes after his first refusal. Further, the brief interlude between the defendant's refusal to answer inquiries and the inception of the questioning was not a pronounced break between the defendant's invocation of his right to remain silent and the commencement of police interrogation.

Therefore, the statements made by the defendant in...