People v. McLaren

• Court: New York District Court
• Writing for the Court: RAYMOND L. WILKES; Brennan
• Citation: People v. McLaren, 55 Misc.2d 676, 285 N.Y.S.2d 991 (N.Y. Dist. Ct. 1967)
• Decision Date: 29 December 1967
• Parties: The PEOPLE of the State of New York, Plaintiff, v. James R. McLAREN, Defendant.

Page 991

285 N.Y.S.2d 991

55 Misc.2d 676

The PEOPLE of the State of New York, Plaintiff, v. James R. McLAREN, Defendant.

District Court, Nassau County, First District.

Dec. 29, 1967.

William Cahn, Dist. Atty. of Nassau County, Mineola, for the People, by Richard Hartman, Asst. Dist. Atty.

Peter Byrnes, Wantagh, for defendant.

RAYMOND L. WILKES, Judge.

DECISION AFTER HEARING UPON MOTION TO SUPPRESS

It is often not easy to reconcile the truth the spirit knows with the truth the mind knows in a world beset with realities. Hence, we find ourselves posed with the query: Is it better to have 'advised' and wonder, than never to have 'advised' at all?

In this prosecution pursuant to Section 1192 Subdivision 2 of the Vehicle and Traffic Law for driving while intoxicated, the People concede that the 'Miranda Advices' were not given to this defendant prior to the taking of the evidence which the defendant now seeks to suppress. (See Page 68 of Minutes of Hearing.) Somewhat succinctly put then, the two questions of law posed during this consolidated pre-trial Huntley and Suppression Hearing relating to an arrested defendant charged with driving while intoxicated are,

Absent Miranda:

1.) May there be admitted into evidence the fruits of a Police Department oral 'Interview' consisting of forty-four questions and answers propounded pursuant to a form questionnaire. (People's Exhibit #1, Nassau County Police Department Form #38.)?

2.) May the results of a series of 'Performance Tests' at the precinct, such as Balance, Walking, Turning, Retrieving Coins and placing Finger to Nose, all of which were also a part of People's Exhibit #1, likewise be admitted into evidence?

The answer to question #1 poses, to say the least, no undue problem. It is now well settled to the point of being the prevailing pantheon that a person in custody must, prior to interrogation, be clearly informed that he has, a.) the right to remain silent, b.) that anything he says will be used against him in court, c.) that he has the right to consult with a lawyer, and to have the lawyer with him during interrogation, and d.) that if he is indigent, a lawyer will be appointed to represent him. (Miranda v. State of Arizona, 384 U.S. 436, pp. 467--473, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

Since the People conceded during this hearing that the defendant was not informed of the foregoing rights prior to his interrogation and there is no evidence that he intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel, the defendant's 'communicative' responses to the queries derived from the Interview portion of People's Exhibit #1, must be, and accordingly hereby are suppressed out of hand.

For an evocative discussion of the Application of Miranda, etc. in Traffic Cases see N.Y.L.J., August 21, 1967, p. 1 col. 4, by Richard E. Erwin, Public Defender of Ventura County, California.

The point of our petard must now however, be addressed to a far more sensitive refinement, namely, the 'Performance Tests'. A brief philosophic premise or two prior to that encounter, while we pause for reflection, finds its most compelling expression for me in the words of Circuit Judge Irving R. Kaufman, writing for the United States Court of Appeals, Second Circuit in United States v. Freeman, 357 F.2d 606, 607--608, (decided February 28, 1966) where he said:

'As legislation proliferates and judicial decisions multiply, our criminal law daily takes on increased complexity and sophistication. Subtle distinctions are constantly drawn; more perfect refinements continue to evolve. At the same time, however, there are a small number of more basic questions which cut across the whole of this evolutionary process, questions so fundamental to the very notion of criminal justice that they must continue to be asked--and, insofar as possible, answered--if the criminal law is truly to reflect the moral sense of the community.'

One of my more beloved brethren of the bench has been given to say of recent times, 'the threading of the needle of the law becomes ever more difficult as the size of the eye diminishes,' and as Judge Kaufman so cogently commented in United States v. Freeman, supra, pp. 618--619, 'As the commentary to the American Law Institute's Model Penal Law observes, 'The law must recognize that when there is no black and white it must content itself with different shades of gray."

Now, at long last, anent the facts:

It appears that on February 11, 1967, at approximately 7:50 p.m., the defendant was operating an automobile which became involved in an accident with another motor vehicle at the intersection of Herzog Place and Jerusalem Avenue, Nassau County, New York. Patrolman Dominick Di Costanzo arrived at the scene and after a series of inquiries, punctuated by some words and actions upon the part of the defendant, which the officer understandably found somewhat less than seemly, the defendant was arrested upon a charge of driving while intoxicated and taken to the 2nd Precinct, Hicksville. While there he was subjected to an 'Interview' (People's Exhibit #1 Nassau County Police Department Form #38) and, in addition, was required to perform certain physical tests. It is evidence relative to these 'Performance Tests' which the defendant now seeks to suppress.

Any reasonably thorough endeavor to discuss the questions of law addressed to the admissability in evidence of the 'Performance Tests' must, perforce, begin and to some extent, conclude with a reference to Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (decided June 20, 1966), since the position of the People herein, must, in my view, stand or fall upon whether or not the holding enunciated in that case is to govern. The facts in Schmerber, therefore, warrant recital.

It seems that the petitioner was hospitalized following an accident involving an automobile which he had apparently been driving. A police officer smelled liquor on the petitioner's breath and noticing other symptoms of drunkenness at the accident scene and at the hospital, placed him under arrest, and informed him that he was entitled to counsel, that he could remain silent, and that anything he said would be used against him. At the officer's direction a physician took a blood sample from petitioner despite his refusal on advice of counsel to consent thereto. A report of the chemical analysis of the blood, which indicated intoxication, was admitted in evidence over objection at petitioner's trial for driving while intoxicated. Petitioner was convicted and the conviction was affirmed by the Appellate Department of the California Superior Court which rejected his claims of denial of due process, (Fourteenth Amendment); of his privilege against self-incrimination, (Fifth Amendment); of his right to counsel, (Sixth Amendment); and of his right not to be subjected to unreasonable searches and seizures, (Fourth Amendment). The Supreme Court of the United States affirmed the conviction, and speaking through Mr. Justice Brennan, who delivered the opinion of the Court, said:

'We hold that the privilege (the Fifth Amendment privilege of any person not to 'be compelled in any criminal case to be a witness against himself'), protects an accused...