People v. Martin

CourtNew York Villiage Court
Writing for the CourtVICTOR B. CHAMBERS
Citation540 N.Y.S.2d 412,143 Misc.2d 341
Decision Date14 April 1989
PartiesThe PEOPLE of the State of New York, Plaintiff, v. David J. MARTIN, Defendant.

Page 412

540 N.Y.S.2d 412
143 Misc.2d 341
The PEOPLE of the State of New York, Plaintiff,
v.
David J. MARTIN, Defendant.
Village Court of Newark,
Wayne County.
April 14, 1989.

Page 413

Stephen R. Sirkin, Dist. Atty. (Richard M. Healy, Asst. Dist. Atty., of counsel), for plaintiff.

John A.R. Walsh, Ontario, (Sally A. Broyles, Williamson, of counsel), for defendant.

VICTOR B. CHAMBERS, Justice.

The defendant was arrested August 28, 1988 and charged with Driving While Intoxicated, Failure to Comply with the Direction of a Police Officer and Following Too Closely. The Court has previously ruled that the initial stop of the defendant's motor vehicle and his subsequent arrest were made upon probable cause. The defendant refused to submit to a chemical test to determine his blood alcohol content.

Defendant has now submitted a motion to the Court requesting that all evidence of his refusal to submit to a blood alcohol test be excluded at any subsequent trial, that the District Attorney be prohibited from mentioning the refusal in his opening or closing statements, that the Court refrain from charging the jury as to any refusal, and that, if the District Attorney opposes the motion, he be accorded a pre-trial hearing on these issues. The basis for this motion, defendant alleges, is that he was deprived of an opportunity to have a meaningful consultation with an attorney before being required to submit to the blood alcohol test after he made a request to so consult, and the affidavits supporting the motion contain allegations of fact which, if true, would support such a contention. The defendant alleges that the police action in so denying him access to counsel violated his Sixth Amendment right to the assistance of counsel.

ISSUES

1. Is evidence of a refusal to submit to a chemical test to determine a suspect's

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blood alcohol content admissible upon trial pursuant to Vehicle and Traffic Law Section 1194(2)(f) if the defendant's right to consult with counsel prior to such a test is denied by police officials?

2. What are the rights of a prosecuting attorney to comment on such issues in his opening and closing statement, and his right to request a charge to the jury as to the inferences it may draw from such a refusal?

3. Upon the filing of a motion alleging certain facts, which, if proven, would establish the denial of an opportunity to consult with an attorney before taking the blood alcohol test, is a defendant entitled to a pre-trial hearing to determine whether or not evidence of such refusal should be submitted at trial?

DISCUSSION

Subdivision 2(f) of Section 1194 of the Vehicle and Traffic Law states that evidence of a defendant's refusal to submit to a chemical test to determine alcoholic content of his blood shall be admissible in any trial based upon a violation of Section 1192 of the Vehicle and Traffic Law, provided the defendant is given sufficient warning, in clear and unequivocal language, of the effect of such refusal. This section of law has been declared constitutional by the Court of Appeals. People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584. That Court held that while a statement of refusal might be considered to be "communicative or testimonial" it was not a violation of defendant's Fifth Amendment rights to admit such evidence because "only ... (such) evidence which has been compelled is excludable in a criminal proceeding" (supra, at 107, 412 N.Y.S.2d 845, 385 N.E.2d 584). "It is only communicative or testimonial evidence that has been extracted from the defendant by compulsion in some form that falls before the constitutional proscriptions". Supra, at 107, 412 N.Y.S.2d 845, 385 N.E.2d 584, citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, which held that a forcible withdrawal of blood for analysis purposes did not violate the Fifth Amendment privilege against self-incrimination, the Thomas Court reasoned that a defendant has no constitutional right not to take the test. This being true, the Court stated "hence comment on his refusal represents no infringement of privilege or right". (Supra, at 109, 412 N.Y.S.2d 845, 385 N.E.2d 584.) In this Court's opinion, these cases are dispositive of the issue of whether a forced chemical test, or the refusal to take one, violates defendant's Fifth Amendment privilege against...

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2 practice notes
  • People v. Pagan, JP-2
    • United States
    • New York City Court
    • 3 Mayo 1995
    ...The prosecutor may not comment on such refusal, nor shall there be a charge to the jury on the subject. (See, e.g., People v. Martin, 143 Misc.2d 341, 345, 540 N.Y.S.2d 412 [Village Ct., Village of Newark, Wayne...
  • People v. Annis
    • United States
    • New York Supreme Court Appellate Division
    • 23 Diciembre 2015
    ...may support defendant's contention that his trial counsel unreasonably withdrew his request for a Martin hearing (see People v. Martin, 143 Misc.2d 341, 540 N.Y.S.2d 412 ) and failed to request a Huntley hearing. In support of his motion, defendant submitted a police report indicating that,......
2 cases
  • People v. Pagan, JP-2
    • United States
    • New York City Court
    • 3 Mayo 1995
    ...The prosecutor may not comment on such refusal, nor shall there be a charge to the jury on the subject. (See, e.g., People v. Martin, 143 Misc.2d 341, 345, 540 N.Y.S.2d 412 [Village Ct., Village of Newark, Wayne...
  • People v. Annis
    • United States
    • New York Supreme Court Appellate Division
    • 23 Diciembre 2015
    ...may support defendant's contention that his trial counsel unreasonably withdrew his request for a Martin hearing (see People v. Martin, 143 Misc.2d 341, 540 N.Y.S.2d 412 ) and failed to request a Huntley hearing. In support of his motion, defendant submitted a police report indicating that,......

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