People v. Moffitt

• Citation: 50 Misc.3d 803,19 N.Y.S.3d 713
• Parties: The PEOPLE of the State of New York, v. Trevor D. MOFFITT, Defendant.
• Decision Date: 17 November 2015
• Court: New York Criminal Court

50 Misc.3d 803

19 N.Y.S.3d 713

The PEOPLE of the State of New York,

v.Trevor D. MOFFITT, Defendant.

Criminal Court, City of New York.

Nov. 17, 2015.

Cyrus R. Vance, Jr., New York County District Attorney, by Jonathan Junig, Esq., for People.

Robert J. Brunetti, Esq., Brunetti & Ascione PLLC, Old Country Road, Mineola, for the Defendant.

MELISSA A. CRANE, J.

A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 N.Y.3d 544, 549, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ; People v. Gursey, 22 N.Y.2d 224, 227, 292 N.Y.S.2d 416, 239 N.E.2d 351 [1968] ). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant's breath test and statements to counsel.

The People charge defendant with Vehicle and Traffic Law ("VTL") 1192(3) (driving while intoxicated), an unclassified misdemeanor, and VTL 1192(1) (driving while ability impaired), a violation, stemming from an incident that occurred on August 5, 2014. Defendant claims that the stop of his vehicle and subsequent arrest lacked probable cause. Consequently defendant demands that the court suppress all evidence flowing from that stop and arrest, including defendant's statements and testing. Defendant also moves to suppress the results of his chemical/breath test, because his right to counsel was violated. This court held a combined Huntley/Dunaway/ Johnson hearing on these issues on July 29, 2015. The court adjourned the case for briefing and decision on defendant's motion to suppress to November 17, 2015. Defendant served and filed a post-hearing memorandum of law on September 28, 2015. The People filed and served a response on October 28, 2015. The following constitutes the court's findings of fact and conclusions of law.

Findings of Fact

Officer Douglas Winn of the Manhattan Traffic Task force testified for the People. Having observed his testimony and overall demeanor, the court finds his testimony credible. Officer Winn has been a police officer with the New York City Police Department ("NYPD") for nine years. He has received training with respect to arrests for driving while intoxicated, the use of the portable breath test, the horizontal gaze nystagmus test,¹ and the IDTU² machine. Officer Winn testified that he has made over 181 arrests for driving while intoxicated and assisted in the arrest of 500 more.

On August 5, 2014, at approximately 11:04 P.M. Officer Winn observed the defendant driving a black Dodge Charger through a stop sign, without stopping, at Greenwich Street and Gansevoort Street. Officer Winn, who was driving an unmarked police vehicle, followed defendant's vehicle. Officer Winn observed defendant drive through another stop sign without stopping, then turn left without signaling at West 13th Street and 9th Avenue. At that point, Officer Winn activated his vehicle's police lights and instructed defendant, via his PA system, to pull over his vehicle.

Defendant complied. Officer Winn approached defendant's vehicle on the driver's side, explained why he had pulled defendant over and asked him for his license. During this initial interaction, Officer Winn smelled a moderate to strong odor of alcohol on defendant's breath, observed that defendant had watery, bloodshot eyes and a flushed face-all signs of possible intoxication. Officer Winn asked defendant whether he had had anything to drink. Defendant replied "no."

Officer Winn then asked defendant to exit his vehicle. Officer Winn observed that defendant was a bit slow to exit the vehicle and was unsteady on his feet when walking. Defendant also swayed from side to side when Officer Winn asked him to stand straight with his arms at his sides.

Officer Winn performed two field sobriety tests at the scene. During the first, the horizontal gaze nystagmus test

, Officer Winn observed that defendant's eyes bounced, an indication that defendant had alcohol in his bloodstream. The second test was the portable breath test ("PBT"), the results of which were .07 and .08. While conducting these tests, Officer Winn again asked defendant whether he had had anything to drink. This time defendant replied that he had had a "sip of wine." At this point, Officer Winn took defendant into police custody and transported him to the 7th precinct.

When they arrived at the precinct's IDTU room, Officer Winn commenced videotaping. Defendant asked to speak to an attorney, but the phone inside the IDTU room was not functioning. There were other phones in the precinct behind a desk in another room, next to various property and a gun locker. There were also phones in the detective squad. Officer Winn apparently did not have access to the phones in the detective squad, and could not let defendant use the phones in the room with the gun locker for obvious safety reasons. Instead, Officer Winn allowed defendant to use his (Officer Winn's) own private cell phone. However, because Officer Winn was concerned that defendant would break his cell phone (Officer Winn explained that, on a prior occasion, a defendant broke his phone), the Officer held the cell phone, while defendant used the speakerphone feature to speak to his wife and then his attorney.

In addition, to the Officer being privy to the conversation between lawyer and client on speakerphone, the entire conversation was also recorded on video. Officer Winn explained that, due to chain of custody concerns, once the video starts, it is NYPD policy not to stop it.

When defendant's attorney asked over the speakerphone why they could not provide a private phone, Officer Winn explained that the test was time sensitive and that defendant was speaking over the officer's own cellphone, because the phone in the IDTU room was broken. Officer Winn reiterated that he was not willing to hand over his phone to anyone.

After 24 minutes, Officer Winn again explained that the breath test was time sensitive and therefore defendant's phone call with his attorney needed to end. After some stalling on the part of defendant, Officer Winn read the refusal warnings to defendant. At that point, defendant agreed to take the breath test. The test indicated that defendant had .07 of one percent by weight of alcohol in his blood.

Defendant's uncle, Evan Moffitt, who had been out to dinner with defendant, also testified. He claimed that defendant did not have watery eyes, an odor of alcohol or any other sign of intoxication. He also testified that defendant stopped at all stop signs and red lights. However, the uncle admitted that he did not have any professional training with respect to recognizing the signs of intoxication. He also acknowledged that defendant had been drinking wine at dinner.

Conclusions of Law

A defendant may challenge the admissibility of any evidence on the grounds that it was the fruit of an illegal seizure and a court must conduct a hearing to determine whether probable cause supports that seizure and arrest ( CPL 710.20[a] ; see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979] ; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] ). As an initial matter, the People bear the burden of presenting evidence of probable cause to show the legality of police conduct People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694 [1965] ; People v. Moses, 32 A.D.3d 866, 823 N.Y.S.2d 409 [2nd Dept.2006], lv. denied, 7 N.Y.3d 927, 827 N.Y.S.2d 696, 860 N.E.2d 998 [2006] ). Once the People have met this burden, the defendant has the ultimate burden of establishing the illegality of police conduct, by a fair preponderance of the evidence ( People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971] and that, therefore, the court should suppress the evidence. ( People v. Sidhom, 204 A.D.2d 150, 612 N.Y.S.2d 12 [1st Dept.1994] ).

I. Probable Cause

A police officer may stop a vehicle without probable cause upon observing a traffic violation (see People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ; People v. Irizarry, 282 A.D.2d 483, 730 N.Y.S.2d 111 [2nd Dept.2001], lv. den. 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159 [2002] ). Here, Officer Winn testified that he observed defendant drive through two stop signs without stopping and turn without using a turn signal—all violations of New York Vehicle and Traffic laws. Defendant's actions provided Officer Winn with probable cause to stop defendant's vehicle.

An officer has probable cause to arrest a person for committing an offense when it "appear[s] to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator" ( People v. Vandover, 20 N.Y.3d 235, 237, 958 N.Y.S.2d 83, 981 N.E.2d 784 [2012] ). Probable cause for a driving while intoxicated arrest exists if the arresting officer can demonstrate reasonable grounds to believe the defendant had been driving in violation of VTL 1192 (see People v. Kowalski, 291 A.D.2d 669, 738 N.Y.S.2d 427 [3rd Dept.2002] ; People v. Poje, 270 A.D.2d 649, 706 N.Y.S.2d 733 [3rd Dept.2000], lv. den. 95 N.Y.2d 802, 711 N.Y.S.2d 170, 733 N.E.2d 242 [2000] ). Officer Winn's observations of the manner that defendant drove his vehicle, together with the Officer's observations of the odor of alcohol emanating from defendant, his bloodshot and watery eyes, a flushed face, unsteadiness on his feet, his failing field sobriety tests,³ and his inconsistent statements about whether or not he had been drinking, were sufficient to provide the Officer with reasonable grounds to believe the defendant had been driving in violation of VTL 1192. Accordingly, there was probable cause to...