People v. Kulk

• Decision Date: 28 February 2013
• Citation: 103 A.D.3d 1038,2013 N.Y. Slip Op. 01299,962 N.Y.S.2d 408
• Parties: The PEOPLE of the State of New York, Respondent, v. Peter F. KULK, Appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 1038
962 N.Y.S.2d 408
2013 N.Y. Slip Op. 01299

The PEOPLE of the State of New York, Respondent,
v.
Peter F. KULK, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 28, 2013.

[962 N.Y.S.2d 409]

Mark Schneider, Plattsburgh, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: PETERS, P.J., STEIN, GARRY and EGAN JR., JJ.

GARRY, J.

[103 A.D.3d 1038]Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered September 26, 2011, upon a verdict convicting defendant of the crimes of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.

In August 2010, police officer Leigh Wenske, who knew that defendant had a suspended or revoked driver's license, saw him driving a car in the Village of Saranac Lake, Franklin County. After stopping defendant's vehicle, the officer noticed and told defendant that he had an odor of alcohol on his person. Defendant made several incriminating statements and refused to submit to field sobriety tests. He was arrested and transported to the police station, where he agreed to submit to three field sobriety tests, two of which he passed, and to a breathalyzer test, which indicated that his blood alcohol count (hereinafter BAC) was .10. Defendant was indicted for aggravated unlicensed operation of a motor vehicle (hereinafter AUO) in the first degree and two counts of driving while intoxicated (hereinafter DWI). Following a jury trial, he was acquitted of one of the DWI charges and convicted of the remaining charges. County Court denied defendant's motion to set aside the verdict, and sentenced him to concurrent prison terms of 2 to 6 years for the DWI conviction and 1 1/3 to 4 years for the AUO conviction, followed by three years of conditional discharge. Defendant appeals.

Defendant contends that County Court erred in denying his motion to suppress the statements he made during the traffic stop. At the suppression hearing, Wenske testified that he had learned during a previous encounter with defendant that his license was suspended or revoked, and advised defendant that he had stopped him

[962 N.Y.S.2d 410]

for this reason. Defendant acknowledged his driving status and provided nondriver identification. Wenske then told defendant that he noticed an odor of alcohol on his person, and inquired how much he had had to drink that day. According to Wenske and police officer Jason Swain, who had [103 A.D.3d 1039]been summoned to the scene as backup, defendant stated, among other things, that he had consumed two alcoholic beverages, “had been drinking pretty hard” the night before, knew that he was over the limit and expected to go to prison as a result. Defendant also told the officers to “place handcuffs on him and take him in.”

The record supports County Court's conclusion that Miranda warnings were not required before defendant made these statements, as he was not then “subject to custodial interrogation” ( People v. Baggett, 57 A.D.3d 1093, 1094, 868 N.Y.S.2d 423 [2008] ). “[I]ndividuals who are temporarily detained pursuant to a routine traffic stop are not considered to be in custody for the purposes of Miranda ” ( People v. Dougal, 266 A.D.2d 574, 576, 698 N.Y.S.2d 66 [1999],lv. denied94 N.Y.2d 879, 705 N.Y.S.2d 11, 726 N.E.2d 488 [2000];see Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S.Ct. 205, 102 L.Ed.2d 172 [1988];People v. Hasenflue, 252 A.D.2d 829, 830, 675 N.Y.S.2d 464 [1998],lv. denied92 N.Y.2d 982, 683 N.Y.S.2d 763, 706 N.E.2d 751 [1998] ). Wenske's statement that he smelled alcohol and inquiry regarding alcohol consumption would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody ( see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969],cert. denied400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970];People v. Nehma, 101 A.D.3d 1170, 1173, 954 N.Y.S.2d 706 [2012] ).

Defendant next contends that the People failed to turn over Brady material. In response to defendant's pretrial discovery demand for police video recordings, the People acknowledged the existence of a single video taken “during the defendant's arrest” and agreed to provide it. The People contend that this video—which is not part of the record—was provided as agreed and is, in any event, not exculpatory. However, the People also now acknowledge the existence of another police video, taken by a dashboard camera in the second officer's vehicle; this video was not turned over to defendant, allegedly because it was not discovered until after this...