People v. Gursey

Citation292 N.Y.S.2d 416,239 N.E.2d 351,22 N.Y.2d 224
Parties, 239 N.E.2d 351 The PEOPLE of the State of New York, Appellant, v. Bruce D. GURSEY, Respondent.
Decision Date05 June 1968
CourtNew York Court of Appeals

Frank S. Hogan, Dist. Atty. (Alfred Avins, H. Richard Uviller and Michael R. Stack, Asst. Dist. Attys., New York City, of counsel), for appellant.

Lester D. Janoff, New York City, for respondent.

BREITEL, Judge.

The People appeal from an order of the Appellate Term unanimously reversing a judgment of the Criminal Court of the City of New York, New York County, and ordering a new trial. Defendant had been convicted, after trial, of the misdemeanor of driving while intoxicated (Vehicle and Traffic Law, Consol.Laws, c. 71, § 1192, subd. 2) and the offense of driving the wrong way on a one-way street. * On the drunken driving charge, he was sentenced to pay a fine of $100 or serve 10 days in jail. The latter conviction was reversed by the Appellate Term because of the trial court's failure to suppress on defendant's application the results of a drunkometer test performed after defendant had been denied an opportunity to telephone his lawyer. Since there was sufficient other evidence of intoxication, the Appellate Term ordered a new trial.

The only issue presented is whether a criminal conviction may rest upon the results of a chemical test performed over the defendant's initial objection and after he had been prevented from telephoning his lawyer for legal advice concerning the test, such communication involving no significant or obstructive delay. Since it is concluded that the test results were secured in violation of defendant's privilege of access to counsel without occasioning any significant or obstructive delay, the order of the Appellate Term should be affirmed.

On the evening of February 7, 1966, one Patrolman Foley, while on radio patrol, stopped defendant's automobile traveling eastward in Manhattan, on 47th Street a one-way west street. While questioning defendant driver, the officer noticed that defendant's head was bobbing, his speech was slurred, and his breath betrayed an alcoholic odor. The officer drove defendant to the station house and questioned him there. At a point during the questioning, defendant asked permission to call his lawyer and was told, 'You will be allowed to make a call to your attorney after I get this information.' Significantly, defendant had a particular attorney in mind when he requested permission to call. Although at one point defendant indicated an intention to claim his privilege against self incrimination, he nevertheless continued to answer questions and perform co-ordination tests, after his request to call his lawyer had been denied. When asked to submit to a drunkometer or breath analysis test, however, defendant refused, and again asked for permission to call his lawyer. Another police officer, the sergeant in charge of the drunkometer test, told defendant, 'You have got to take this test.' When defendant asked what would happen if he did not submit to the test, the sergeant replied, 'If you don't take this test, the State will take away your license.' Thereupon, defendant submitted to the test.

At trial, a Voir dire was held to determine the admissibility of the statements made by defendant as well as the results of the physical coordination exercises and drunkometer tests. The trial court suppressed the statements and the results of the co-ordination tests, but admitted evidence of the drunkometer readings. The Appellate Term unanimously reversed on the ground that 'the denial of defendant's request to telephone his attorney before he took the test violated his constitutional rights'.

In light of current recognition of the importance of counsel in criminal proceedings affecting significant legal rights, law enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand. This court recently noted, in another context, that: 'As a matter of fairness, government ought not compel individuals to make binding decisions concerning their legal rights in the enforced absence of counsel' (People v. Ianniello, 21 N.Y.2d 418, 424, 288 N.Y.S.2d 462, 468, 235 N.E.2d 439, 443; see Escobedo v. State of Illinois, 378 U.S. 478, 486, 84 S.Ct. 1758, 12 LEd.2d 977; People v. Donovan, 13 N.Y.2d 148, 153, 243 N.Y.S.2d 841, 844, 193 N.E.2d 628, 630). In the present case, defendant possessed a number of statutory options which could be asserted only during the transaction at the station house, and concerning which the advice of counsel, if available, was relevant.

Subdivision 1 of section 1194 of the Vehicle and Traffic Law reads: '1. Any person who operates a motor vehicle or motorcycle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic * * * content of his blood...

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106 cases
  • State v. Bristor
    • United States
    • Kansas Court of Appeals
    • May 3, 1984
    ...in the blood at a fairly rapid rate. This same scientific fact was foremost in the mind of the court in People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351 (1968), when it fashioned the following "In light of current recognition of the importance of counsel in criminal proceed......
  • Prideaux v. State, Dept. of Public Safety
    • United States
    • Minnesota Supreme Court
    • October 8, 1976
    ...The New York Court of Appeals recognized a limited right to counsel before chemical testing in People v. Gursey, 22 N.Y.2d 224, 227, 292 N.Y.S.2d 416, 418, 239 N.E.2d 351, 352 (1968), and 'In light of current recognition of the importance of counsel in criminal proceedings affecting signifi......
  • City of Spokane v. Kruger
    • United States
    • Washington Supreme Court
    • January 10, 1991
    ...105 (1987) (suppression is proper remedy for violation of statutory and constitutional right to counsel); People v. Gursey, 22 N.Y.2d 224, 239 N.E.2d 351, 292 N.Y.S.2d 416 (1968) (suppression is proper remedy for violation of DWI defendant's right to counsel); People v. Wilmot-Kay, 134 Misc......
  • Commonwealth v. Neary-French
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 15, 2016
    ...Heles v. South Dakota, 530 F.Supp. 646, 652 (D.S.D.), vacated as moot by 682 F.2d 201 (8th Cir.1982) ; People v. Gursey, 22 N.Y.2d 224, 227–228, 292 N.Y.S.2d 416, 239 N.E.2d 351 (1968) ; Forte v. State, 686 S.W.2d 744, 754 (Tex.Ct.App.1985), aff'd in part, rev'd in part, 707 S.W.2d 89 (1986......
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1 books & journal articles
  • Administrative hearings
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • March 31, 2022
    ...Supreme Court agreed with the basic premise recognized over twenty years ago by the New York Court of Appeals in People v. Gursey , 22 N.Y.2d 224, 227, 239 N.E.2d 351, 352 (1968) where that court said: ADMINISTRATIVE HEARINGS §824 Defending Drinking Drivers 8-30 “Law] enforcement officials ......

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