People v. Membrino
| Decision Date | 01 July 1999 |
| Citation | 695 N.Y.S.2d 865 |
| Parties | The PEOPLE of The State of New York, Plaintiff, v. Nelson MEMBRINO, Defendant. Kings County |
| Court | New York City Court |
Legal Aid Society (Nicole Bellina, New York City, of counsel), for defendant.
Charles J. Hynes, District Attorney of Kings County (Beau Kolodka, Jamaica, of counsel), for plaintiff.
The defendant is charged with violations of §§ 1192.1 and 1192.3 of the Vehicle and Traffic Law.
The defendant has moved to suppress his statement as the fruit of the poisonous tree insofar as defendant's arrest was unlawful and because it was taken in the absence of Miranda warnings.
Defendant also moves to suppress his refusal to submit to a breathalyzer test as a product of the illegal arrest and because he was not properly warned of the consequences of such refusal.
The Court makes the following findings based upon the credible evidence obtained during the course of a hearing convened on June 17, 1999. 1 One witness, Police Officer Tabb, testified that on January 16, 1999 at approximately 1:00 a.m., he and his partner saw the defendant slumped over the steering wheel of a station wagon legally parked near the defendant's home on 4th Avenue and Second Street in Brooklyn. The engine of the car was running and the lights were off. The officer tapped on the window of the vehicle causing the defendant to wake up and roll the window down. At this point, the officer observed that the defendant's eyes were bloodshot and watery and he detected the strong odor of alcohol on his breath.
The officer directed the defendant to exit the vehicle and to walk to the sidewalk. The officer observed the defendant stagger to some extent and appear unsteady on his feet. Once on the sidewalk, the officer asked the defendant if he had been drinking to which the defendant responded, "Yes, three beers." The officer testified that prior to asking the defendant this question, the defendant was not free to leave, and that the question was posed because the officer thought the defendant had been drinking and driving.
The defendant was promptly placed under arrest and taken to the 70th Precinct where he was asked to submit to a breathalyzer test. After being warned, in Spanish, that any refusal would result in the suspension or revocation of his license or privilege to drive and that such refusal could be used against him at trial, the defendant stated, unequivocally, that he would not submit to the breathalyzer test. These warnings and subsequent refusal were videotaped and played for the Court. The defendant's refusal was buttressed by his vulgar hand gestures to the video technician. The warnings were translated for the Court by the duly sworn court interpreter.
The Court finds that the defendant's arrest was lawful. Upon finding the defendant unconscious and/or asleep, slumped over the steering wheel of a running car, the police officer had a duty to inquire as to the defendant's safety. These observations, coupled with the defendant's bloodshot and watery eyes, the strong odor of alcohol on his breath and unsteady gait provided reasonable cause to arrest the defendant for the crimes charged. The defendant has asked the Court to rely on People v. Khan, 168 Misc.2d 192, 638 N.Y.S.2d 858 [N.Y. City Crim. Ct., Kings Co., 1995] for the proposition that without more, a defendant slumped unconscious over the steering wheel of a legally parked car with the engine running is as a matter of law an insufficient basis to arrest for driving while intoxicated or impaired. According to Khan, the government must provide additional evidence to demonstrate more clearly that the defendant either recently moved the vehicle or intended to do so.
This Court does not find Khan to be persuasive. Khan cites two cases: People v. O'Connor, 159 Misc.2d 1072, 607 N.Y.S.2d 856 [Dist. Ct. Nassau Cty.1994] and People v. De Santis, 5/21/90 N.Y.L.J. 32, Col. 4 [App. Term 9th & 10th Judicial Dist.] in support of the proposition that when a driver of a legally parked car starts the engine of his car, without an intention to set the car in motion, operation of a motor vehicle has not occurred. What distinguishes O'Connor and De Santis from the case at bar, and it is a critical and fundamental distinction, is that in each of these cases, the defense introduced evidence which negated the intent to operate the vehicle. 2 No such evidence was introduced in the instant case.
People v. O'Connor is particularly instructive. The O'Connor Court noted that, Citing Matter of...
To continue reading
Request your trial