People v. Hasenflue

• Decision Date: 23 July 1998
• Parties: , 1998 N.Y. Slip Op. 7166 The PEOPLE of the State of New York, Respondent, v. Eric HASENFLUE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 464

675 N.Y.S.2d 464

252 A.D.2d 829, 1998 N.Y. Slip Op. 7166

The PEOPLE of the State of New York, Respondent, v. Eric HASENFLUE, Appellant.

Supreme Court, Appellate Division Third Department.

July 23, 1998.

Paul L. Gruner, Public Defender (Denise Dourdeville, of counsel), Kingston, for appellant.

Michael Kavanagh, District Attorney (Joan Gudesblatt Lamb, of counsel), Kingston, for respondent.

Before MIKOLL, J.P., MERCURE, CREW, WHITE and YESAWICH, JJ.

WHITE, Justice.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered October 11, 1996 in Ulster County, upon a verdict convicting defendant of the crime of driving while intoxicated.

Around 4:00 P.M. on January 15, 1995, Yvonne Sharot looked out the front window of her residence located on Sawkill Road in the Town of Ulster, Ulster County, and saw defendant park his pickup truck on the westbound shoulder of the road. She then saw him get out of the truck and stagger across the road. Alarmed that he might seek help from her, Sharot called the police. When Officer Anthony Cruise arrived at the scene, he observed defendant standing on the east shoulder of Sawkill Road. As Cruise walked toward the truck, he saw defendant staggering across the road. When defendant reached the truck, Cruise engaged him in conversation. Defendant admitted driving the truck which prompted Cruise to ask him for his driver's license, which defendant produced. Because defendant's speech was slurred and he smelled of alcohol, Cruise asked him to perform certain field sobriety tests, including the alphabet recitation test and finger count tests. As the tests were being performed, Officer Parako Purvis arrived at the scene. He noticed that defendant's eyes were glassy, that his speech was slurred and that he was emitting a strong odor of alcohol. Defendant failed each test, indicating that he was unable to perform the one leg stand test because "I'm drunk."

At that point, Cruise arrested defendant for driving while intoxicated and transported him to the police station where Sergeant Donald Short also noticed the odor of alcohol coming from defendant's breath and his slurred speech. At the commencement of the booking procedure, defendant was given his Miranda rights and the warning regarding refusal to take a chemical test. Despite repeated warnings, defendant refused to take a breathalyzer test. As the booking procedure progressed, defendant became violent, allegedly physically attacking Purvis and damaging a typewriter. As a result, he was indicted for, inter alia, the crimes of assault in the second degree, criminal mischief in the third degree and operating a motor vehicle while under the influence of alcohol as a misdemeanor in violation of Vehicle and Traffic Law § 1192(3) (driving while intoxicated). Following a jury trial, defendant was only convicted on the last charge. He now appeals.

First, defendant contends that since he was in custody, he should have been advised of his Miranda rights prior to the administration of the alphabet recitation and finger counting field sobriety tests. We disagree. Defendant's contention that he was in custody is misplaced since it is well established that persons temporarily detained pursuant to a typical traffic stop are not in custody for the purposes of Miranda (see, Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S.Ct. 205, 102 L.Ed.2d 172; Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317). In this instance, defendant's roadside detention cannot be deemed custodial since it was brief (compare, People v. Banks, 85 N.Y.2d 558, 626 N.Y.S.2d 986, 650 N.E.2d 833) and Cruise's observation of defendant's physical condition justified detaining him for the limited purpose of investigating whether he was operating his motor vehicle while under the influence of alcohol (see, People v. Tittensor, 244 A.D.2d 784, 666 N.Y.S.2d 267; People v. Noonan, 220 A.D.2d 811, 632 N.Y.S.2d 675). In any event, we do not consider responses to an alphabet recitation test or finger counting test to be testimonial or communicative because they do not reveal the person's subjective knowledge or thought processes (see, People v. Hager, 69 N.Y.2d 141, 142, 512 N.Y.S.2d 794, 505 N.E.2d 237; Commonwealth v. Vanhouton, 424 Mass. 327, 335-336, 676 N.E.2d 460 [and cases from other jurisdictions cited therein reaching the same conclusion] ). Therefore, defendant's motion to suppress his responses to these tests was properly denied.

At trial, defendant's cross-examination of Purvis and Short regarding Purvis' alleged involvement in an unprovoked physical attack upon another police officer was curtailed by Supreme Court. As a general rule, the trial court is granted broad discretion in making evidentiary rulings and, absent an abuse of discretion, a trial court's...