People v. Molina, 2009 NY Slip Op 29289 (N.Y. Sup. Ct. 6/29/2009)

• Court: New York Supreme Court
• Writing for the Court: Caesar D. Cirigliano
• Citation: People v. Molina, 2009 NY Slip Op 29289 (N.Y. Sup. Ct. 6/29/2009), 2009 NY Slip Op 29289, 73067C-2007 (N.Y. Sup. Ct. Jun 29, 2009)
• Decision Date: 29 June 2009
• Docket Number: 73067C-2007
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. JOSE MOLINA, Defendant.

Page 1

2009 NY Slip Op 29289

THE PEOPLE OF THE STATE OF NEW YORK v. JOSE MOLINA, Defendant.

73067C-2007

Supreme Court, Bronx County.

Decided June 29, 2009.

Gabriel Munson, Esq.—Defense

DA Robert T. Johnson by ADA Morgan Long—Office of the District Attorney, Bronx County.

CAESAR D. CIRIGLIANO, J.

On December 2, 2007, the defendant Jose Molina was arrested for Driving while Under the Influence of Alcohol. The defendant was charged with Reckless Endangerment(P.L. 120.20), Reckless Driving (V.T.L. 1212), Driving While Intoxicated (V.T.L. 1192[3]), Driving while Intoxicated Per Se (V.T.L. 1192[2]) and Driving While Ability Impaired by Alcohol (V.T.L. 1192[1]). On January 28, 2009, a jury trial commenced before this court and concluded on January 29, 2009 with a verdict of guilty on the counts of Reckless Driving and Driving While Ability Impaired by Alcohol. The defense, thereafter moved under C.P.L. §330.30 to set aside said verdict. Therefore, pursuant to C.P.L. § 330.30, this Court is required to determine whether there are "[a]ny ground(s) appearing on the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court. ****"

FACTS

The People offered the testimonies of the arresting police officer Edward Aiken [hereinafter "Aiken"] and the police officer who administered the IDTU test¹, Michael Sharpe [hereinafter "Sharpe"].

On December 2, 2007, at approximately 9:45 PM, Aiken an officer of the Triborough Bridge and Tunnel Authority who was on that night assigned to the Bronx-Whitestone Bridge Toll Plaza, observed the defendant's vehicle backing out of EZ Pass lane 11 on the southbound plaza on the Bronx-Whitestone Bridge. Aiken testified that as the vehicle was backing out, Mr. Jose Molina ran over seven to eight stationary cones (transcript Pg. 9, L. 21) between "EZ Pass" lane 11 and cash lane 9. He also testified that defendant Molina nearly struck another vehicle that was approaching the toll plaza. Moreover, once the defendant backed out of lane 11 into lane 9 and started to drive forward, that the vehicle swerved coming about two inches from striking the island in said lane (transcript. Pg. 4, L. 22-25l Pg. 5, L.1-9). Officer Aiken then approached lane 9 and stopped the vehicle by stretching his hand in front of Mr. Molina and motioning him to stop.

Aiken then approached the driver's side, the defendant rolled down his window and Officer Aiken asked him whether he was okay. Mr. Molina did not answer. Aiken observed that the defendant was slumped back in his seat and had bloodshot watery eyes (transcript Pg. 12, L. 23, 24). Thereafter, Aiken asked the defendant where he was going and where he was coming from, to which the defendant answered his girlfriend's house. As a result of a strong alcoholic beverage odor coming out of the defendant's vehicle and the smell of alcohol on the defendant's breath, Aiken asked

Mr. Molina if he had been drinking. Initially, the defendant stated that he had not, but upon being asked again, he stated that he had three (3) beers. Aiken noted that the defendant had a strong Spanish accent but could not make any determinations whether or not, the defendant's speech was slurred. It must be noted that Aiken and the defendant communicated solely in English.

Upon making the above observations, Aiken then contacted his desk and one Lt. Ray responded. Aiken and Lt. Ray, got the defendant out of the vehicle and attempted to administer a field sobriety coordination test. However, since it appeared to the officers that the defendant was unsteady on his feet, Lt. Ray decided to forego the coordination test in the interest of the defendant's safety. At this point, the defendant was placed under arrest for Driving While Intoxicated and was then transported to the 45th precinct for the breathalyser/ IDTU test.

At the 45th Precinct, Officer Sharpe who administered the IDTU test, noted that the defendant had bloodshot, watery eyes, some slurred speech and a strong odor of alcoholic beverage on his breath (transcript pg. 48, L8-10). Sharpe testified that after the breathalyser test, defendant's reading was. 164, nearly double the legal limit. Furthermore, Sharpe testified and asserted that he did not submit the defendant to the physical coordination test² that ordinarily follows the breathalyser test because there was a "language barrier" (transcript pg. 59, L. 4-8). However, the officer was able to describe to the defendant in English how to proceed to take the breathalyser test. Sharpe unequivocally testified that when encountering a Spanish speaking suspect he has never administered the physical coordination test due to language barriers (transcript pg.83, L 23-25). Specifically, Sharpe testified that the choice to give or not give the physical coordination test depends on whether there is a language barrier or if someone is so heavily intoxicated that they risk injuring themselves due to having difficulty standing (transcript pg 80, L.1-3).

ARGUMENTS

The defense argues that "the police department's failure to administer a physical coordination test due to a language barrier, specifically, because the defendant spoke Spanish violated the defendant's right to equal protection**" The defense relies on this Court's decision in People v. Garcia-Crespo (22 Misc 3d 490, 2008 NY Slip Op. 28417 [2008]), to emphasize that "the procedure employed, that is affording both a breathalyser and physical test to English Speaking individuals and only a breathalyser to non-English speaking defendants, not only differentiates between the two classes but more importantly has no reasonable or rational basis and is inherently discriminatory against non-English speaking individuals." id at 497. Further, the defense argues that the defendant in this case was able to understand enough English to submit himself to a breathalyser test and that the Officer Sharpe's decision to bypass the oft given physical coordination test portion based upon the inability of the defendant to speak fluent English though he was able to understand it, "stretches the evil of discrimination based on the inability to speak English to now encompass those individuals that have some ability but are summarily refused the opportunity because of an ethnically based, and therefore discriminatory, rationale."

Moreover, on the issue of the violation of Mr. Molina's Due Process Rights, the defense argues that "the private interest affected by the official action is the guilt or innocence of the defendant accused of violation V.T.L. § 1192.1, a traffic infraction, with a possible sentence of up to fifteen days in jail and/or a fine along with a mandatory driver's license suspension." As to the risk of erroneous deprivation of such interest through the procedures used, defense argues that "the results of the physical coordination test (as administered through a translator) can ameliorate the risk of erroneous deprivation through the display of the defendant's condition under a police-controlled environment. With such evidence so close in time to the arrest, a fact-finder can better determine whether the prosecution has proven their case beyond a reasonable doubt." Finally, as to the government's interest, "[i]t is submitted that the fiscal and administrative burdens that the additional or substitute procedural requirements would have entailed would have been minimal, namely, the use of a Spanish language interpreter, when compared with the defendant's due process right to a fair opportunity to combat government accusations of criminal conduct." see, Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18, 96 S. Ct. 893 (1976).

On the other hand, the People argued as follows:

A. PRESERVATION: "The defendant failed to timely preserve on appeal the issues of Equal Protection and Due Process violations ** [t]herefore, this court is mandated by law to summarily deny defense motion on these issues as being untimely and therefore not preserved for the purpose of appeal."

B. LEGAL SUFFICIENCY: The People argue that the scope of C.P.L. § 330.30 is strictly limited to a determination that the trial evidence was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted. Further, that the standard of determining legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Further, that "[t]he interest of justice standard that defense would ask the trial judge to adopt in considering the Equal Protection and Due Process grounds is statutorily prescribed to intermediate appellate courts, not trial courts. That is, that this trial court is strictly limited in its review to only that of legal sufficiency.

C. EQUAL PROTECTION: The People argue that "[f]or an Equal Protection violation argument to be raised by any party, not just defense, a party must assert that a legislative enactment is discriminatory on its face or that a facially-neutral statute was enacted with discriminatory intent." Further, that the defense has failed to "set forth support**that Vehicle and Traffic Law § 1192(1) is administered with an uneven hand." The People asserted that the method adopted by the New York City Police Department is rationally related to the purpose of avoiding confusion and complications due to any language barrier, as the police simply do not administer field sobriety tests to non-English speaking defendants." Further, that the fact that a defendant does not speak English, does not make him a part of a "so called suspect class."

D. DUE PROCESS I: The People assert that "all non-English" speaking defendants are afforded the right to have use of an interpreter at a critical stage of the criminal process, the critical stage being the commencement of criminal...