People v. Lucifero

• Decision Date: 11 January 2017
• Citation: 2017 N.Y. Slip Op. 00190,45 N.Y.S.3d 166,146 A.D.3d 811
• Parties: The PEOPLE, etc., appellant, v. Anthony LUCIFERO, respondent.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 811
45 N.Y.S.3d 166
2017 N.Y. Slip Op. 00190

The PEOPLE, etc., appellant,
v.
Anthony LUCIFERO, respondent.

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

Jan. 11, 2017.

45 N.Y.S.3d 167

Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Yael V. Levy of counsel), for appellant.

Feinman & Kauffman, P.C., Mineola, N.Y. (Justin Feinman of counsel), for respondent.

RANDALL T. ENG, P.J., RUTH C. BALKIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

146 A.D.3d 811

Appeal by the People (1) from an order of the Supreme Court, Nassau County (Delligatti, J.), dated October 23, 2015, which, after a hearing, granted suppression of the results of a blood alcohol test and all physical evidence obtained, and statements made to law enforcement officials, after the blood alcohol test was performed, and (2), as limited by their brief, from so much

146 A.D.3d 812

of an order of the same court dated March 22, 2016, as, upon reargument, adhered to the determination in the order dated October 23, 2015.

ORDERED that the appeal from the order dated October 23, 2015, is dismissed, as that order was superseded by the order dated March 22, 2016, made upon reargument; and it is further,

ORDERED that the order dated March 22, 2016, is reversed insofar as appealed from, on the law, upon reargument, the order dated October 23, 2015, is vacated, suppression of the results of a blood alcohol test and all physical evidence obtained, and statements made to law enforcement officials, after the blood alcohol test was performed, is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

On August 26, 2013, at a late-night party in the defendant's backyard in North Massapequa, the defendant allegedly got into a fight with a friend. The friend got into his car and drove away. The defendant got into a car, chased his friend, and allegedly rammed his car into the back of his friend's car. The police arrived, arrested the defendant, and took him to the hospital. They asked the defendant to submit to a blood alcohol test, and the defendant agreed. A short time after the test was administered, the defendant was given his Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), and he made an inculpatory statement.

The defendant was charged with several crimes arising from the incident, including alcohol-related crimes under the Penal Law and the Vehicle and Traffic Law. He moved to suppress various evidence, including the result of the blood alcohol test and the statement he made to the police after he took the test. At a suppression hearing, a police officer testified that he became aware, after the defendant consented to take the test but before the test was administered, of the name and telephone number of an attorney for the defendant. The officer did not remember where he got this information. No other evidence was presented as to this issue.

The Supreme Court granted the defendant's motion to suppress the results of the blood alcohol test and all subsequently obtained evidence on the ground that the police violated the defendant's limited right, first recognized in People v. Gursey , 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351, to consult with counsel about whether to take the blood alcohol test. Upon reargument, the court adhered to its original determination. The People appeal.

At the suppression hearing, the People had the burden of

146 A.D.3d 813

going forward to establish the reasonableness of the police conduct, and the defendant ultimately had

45 N.Y.S.3d 168

the burden of proving, by a preponderance of the evidence, that the police conduct was illegal (see People v. Rosa, 65 N.Y.2d 380, 386, 387 ; People v. Jackson, 141 A.D.3d 1095, 1096, 35 N.Y.S.3d 610 ; People v. Hilts, 19 A.D.3d 1178, 1179, 796 N.Y.S.2d 828 ; People v. Lyons, 4 A.D.3d 549, 551, 771 N.Y.S.2d 585 ; People v. Henriquez, 214 A.D.2d 485, 485–486, 625 N.Y.S.2d 526 ).

Vehicle and Traffic Law § 1194(2)(a) provides that "[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent" to a "breath, blood, urine, or saliva" test to determine the alcoholic content of their blood within certain time limits after being arrested for certain crimes (see Vehicle and Traffic Law § 1194[2] ). Although all drivers are "deemed" to have consented to a blood alcohol test, some drivers refuse to actually take a test. In recognition of this fact, the law provides for what happens when drivers refuse to take a blood alcohol test. Among the consequences are the automatic revocation of the person's driver license (...