People v. Garcia-Cepero

• Court: New York Supreme Court
• Writing for the Court: Caesar D. Cirigliano
• Citation: People v. Garcia-Cepero, 22 Misc 3d 490, 874 N.Y.S.2d 689, 2008 NY Slip Op 28417 (N.Y. Sup. Ct. 2008)
• Decision Date: 23 October 2008
• Docket Number: No. 61994C-2006,61994C-2006
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JAVIER GARCIA-CEPERO, Defendant.

22 Misc.3d 490

874 N.Y.S.2d 689

2008 NY Slip Op 28417

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JAVIER GARCIA-CEPERO, Defendant.

No. 61994C-2006

Supreme Court of the State of New York, Bronx County.

October 23, 2008.

Legal Aid Society, Bronx (Lia Rodriguez of counsel), for defendant.

Robert T. Johnson, District Attorney, Bronx (Akane Fujiwara of counsel), for plaintiff.

OPINION OF THE COURT

CAESAR D. CIRIGLIANO, J.

On November 23, 2006, Javier Garcia-Cepero was arrested and charged with operating a motor vehicle while under the influence of alcohol pursuant to Vehicle and Traffic Law § 1192 (1) and (3). Motions were filed and on August 11, 2008, this court conducted a Mapp refusal hearing to determine whether the police officers had probable cause to stop and arrest the defendant and whether or not the defendant refused to submit to a breathalyzer test.

The hearing on this matter commenced on August 11, 2008 and concluded on August 15, 2008.

Facts

The court finds the testimony of Sergeant Kiyar and Police Officer Priolo credible in part and credits that part of their testimony that on November 23, 2006 at approximately 2:30 A.M., Sergeant Yalcin Kiyar and Police Officer Priolo were parked in their marked RMP in the eastbound lane on Westchester Avenue in Bronx County when they observed a vehicle traveling at the speed limit on the wrong side of the road, heading westbound in the eastbound lane down Westchester Avenue (transcript at 7, lines 20, 21). The officers made a U-turn and proceeded to follow the vehicle and they noted that at some point, the motorist started driving in the correct lane. The officers made several attempts to pull the motorist over, using the bullhorn to give verbal commands. Finally, the officers went around the vehicle consequently traveling in the eastbound lane and signaled the motorist to pull over which he did. Upon pulling the motorist over, the officers approached the vehicle and asked him to lower his window but there was no compliance. Kiyar then opened the driver's door and asked the motorist both verbally and with a hand gesture to step out of the vehicle and the motorist complied. At that point, the officers noted a strong alcohol odor emanating from the motorist's body and that he had bloodshot eyes, a flushed face, was unsteady on his feet, and that according to Kiyar and Priolo, the motorist's speech was slurred while making a statement to the officers in Spanish as he was exiting the vehicle, the phrase "un pequetas."¹ Hence, they concluded that the motorist was intoxicated. Kiyar then instructed his partner, Priolo, to place the motorist, that is Mr. Javier Garcia-Cepero, in custody. Mr. Garcia-Cepero was then transported to the 45th precinct to subject him to a breathalyzer test. Priolo testified that during the ride to the precinct, the defendant had a strong smell of alcohol and that he belched several times.

At the 45th precinct, Priolo testified that at about 4:00 A.M., Mr. Garcia-Cepero was shown a videotape in Spanish, by Officer Winchell, which was a verbatim Spanish interpretation of Vehicle and Traffic Law § 1194 (2) (f). A viewing of the tape made during the procedure revealed that defendant responded to the final question on the tape of whether he consented or refused to take the breathalyzer test, by stating "no drogas, no drogas" which means "no drugs, no drugs."² Officers Winchell and Priolo took this to mean that defendant refused the breathalyzer test and thus, it is that alleged refusal which forms the basis for the prosecution's request for the consciousness of guilt presumption.

Discussion and Findings

The court was required to answer (1) whether there was probable cause to arrest the defendant; (2) did the defendant refuse to take the breathalyzer test; and (3) was Mr. Garcia-Cepero's refusal a persistent refusal. Moreover, due to the specific facts of this case, this court was also required to decide whether the defendant's due process rights were violated; and whether the New York Police Department's procedure of requiring only a breathalyzer test of non-English-speaking individuals while requiring a breathalyzer and a HGN field test of English-speaking individuals, violates the Equal Protection Clauses of the United States Constitution and the New York State Constitution.

Probable Cause to Arrest

The court finds that because the police officers observed Mr. Garcia-Cepero cross a double yellow line into the oncoming lane of traffic, they had probable cause to pull the defendant's car over. Furthermore, when they smelled alcohol and observed defendant's bloodshot eyes and unsteady balance they had sufficient reasonable cause to place him under arrest for driving while intoxicated.

Refusal to Take Test

The issue which is more complicated is whether the defendant refused to take his breathalyzer test. Both sides have submitted written memoranda of law and have presented verbal arguments on behalf of their positions.

Section 1194 (2) (f) of the Vehicle and Traffic Law states:

"Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." (Emphasis added.)

In the present case the defendant heard a verbatim Spanish translation of Vehicle and Traffic Law § 1194 (2) (f).

Under ordinary circumstances where a person speaks English fluently the reading of section 1194 (2) (f) and the mere asking if the person understands the warning qualifies as a sufficient warning in clear and unequivocal language.

In the cases submitted by the District Attorney, the record provides conclusive evidence that the English-speaking person understood the warnings and was subject to the sanctions of Vehicle and Traffic Law § 1194 (2) (f). Cases such as People v Reynolds (133 AD2d 499 [1987]), where the defendant was given the warning on more than one occasion and persistently refused to submit to a blood test; Matter of Reed v New York State Dept. of Motor Vehs. (59 AD2d 974 [1997]), where defendant refused and later, though still within the two-hour window, consented to the breathalyzer test; Matter of Nicol v Grant (117 AD2d 940 [1986]), where the defendant first consented to the test, then "unequivocally stated" that she would not take the test, then later recanted within the two-hour period, and the Court found that petitioner refused to take the test within the meaning of Vehicle and Traffic Law § 1194 (3) (a); and People v Ferrara (158 Misc 2d 671 [1993]), where once again the defendant initially refused but later consented, and the court found that the recantation of the defendant's refusal did not suffice to undo that refusal.

The District Attorney contends, based on Matter of Carey v Melton (64 AD2d 983 [1978]) and People v Reynolds (133 AD2d 499 [1987]), that "understanding" is not required.

In Melton, the Court dealt with an English-speaking defendant who claimed that he was too intoxicated to understand the warning. The Court (at 983) held that Vehicle and Traffic Law § 1194 (2) cannot be construed "as requiring a `knowing' refusal" by the defendant and went on to explain that to interpret section 1194 (2) to require such would "lead to the absurd result that the greater the degree of intoxication of an automobile driver, the less the degree of his accountability." Also, in Reynolds, the Court dealt with an English-speaking defendant who sought to suppress evidence of his refusal to submit to a blood alcohol test due to incapacitation. The Court (at 502) held that the lower court did not err in denying defendant's motion to suppress evidence of his refusal since the defendant was warned several times in the ambulance on the way to the hospital and at the hospital, "in clear and unequivocal language" about the consequences of said refusal. Melton and Reynolds are not applicable to the facts in our present case and are distinguishable.

It is not the contention of the defense that the defendant was too intoxicated to understand or that the defendant was physically incapacitated but rather that the defendant does not speak or understand English and therefore the mere reading of a document or viewing of a videotape without ascertaining whether the defendant understood does not constitute "clear and unequivocal language." Further, the defense contends that the videotape of the defendant's responses, that is "no drogas, no drogas," and body language supports their contentions.

In People v Niedzwiecki (127 Misc 2d 919 [1985]), the judge noted that

"[Vehicle and Traffic Law § 1194 (2)] is couched in terms familiar to most law enforcement officials, legislators, prosecutors, attorneys and judges. However, this court believes that the choices and ramifications flowing therefrom were by no means clearly understandable to the defendant, particularly since he was not proficient in English." (Id. at 920.)

During the course of the hearing, this court viewed the videotape of the proceeding in the 45th precinct numerous times and had the official Spanish court interpreter interpreting any words the defendant spoke. The court observed that during the proceeding the defendant was steady on his feet and listened to the English reading of the rights without response. Further, after watching the Spanish videotape, his responses in Spanish "no drogas, no drogas," and his facial expressions and body language obviously depicted a person who neither understood nor comprehended the choices and was utterly confused. He looked in the arresting officers' direction for some sort of word or expression, which ultimately came when he was asked his name in English and, not understanding, he looked once again to the...