People v. Morocho-Morocho
| Decision Date | 18 May 2021 |
| Docket Number | 20020182 |
| Citation | 2021 NY Slip Op 50455 (U) |
| Parties | The People of the State of New York, Plaintiff, v. Wilson G. Morocho-Morocho, Defendant. |
| Court | New York Justice Court |
Assistant District Attorney Roger T. Dean
Miriam E. Rocah, Westchester County District Attorney
Richard L. Ferrante, Esq.
For the defendant
For the reasons that follow, the defendant's motion to suppress is granted in part and is otherwise denied.
In separate simplified traffic informations, the People alleged that, on February 9, 2020, in the Town of Ossining, the defendant committed the offenses of driving while intoxicated (Vehicle and Traffic Law § 1192[3]), refusal to submit to a breath test (Vehicle and Traffic Law § 1194[1][b]), failure to keep right (Vehicle and Traffic Law § 1120[a]), and operating a vehicle at an unreasonable and imprudent speed (Vehicle and Traffic Law § 1180[a]). At a pre-trial Dunaway/Huntley/Mapp hearing the People presented the testimony of Officer Patrick McGovern and Officer Addison Chavez, who testified credibly as follows:
Testimony of Officer Patrick McGovern
Officer Patrick McGovern testified that he has been a member of the Village of Ossining Police Department for over nine years, during which period he has personally made over 20 arrests for driving while intoxicated and assisted in at least 60 arrests for driving while intoxicated. Officer McGovern testified that as part of his training at the police academy, he received training in identifying whether persons are intoxicated by alcohol and completed the standardized field sobriety test course.
On February 9, 2020, at approximately 4:08 a.m., Officer McGovern was on patrol in a marked police vehicle, and was dispatched to assist at the scene of a motor vehicle accident on the northbound side of Route 9A in the Town of Ossining. The weather conditions were clear. Upon arriving at the scene, Officer McGovern saw a four-door sedan, which was located in a sideways position, approximately 30 to 40 feet off Route 9A, in a marshy area below the level of the roadway. Three to four police vehicles were already there and there were no longer any persons inside the sedan. There were four or five individuals present, including the defendant, some of whom were being interviewed by police officers.
Upon inspecting the vehicle, Officer McGovern observed that the front passenger-side seat was completely reclined so that it was touching the rear seat. Officer McGovern opined that, with the seat in that position, a person would not have been able to sit in the rear passenger-side seat. Officer McGovern did not know when the front passenger-side seat had been reclined and acknowledged that it could have been put into a reclined position after the accident.
Officer McGovern saw blood in the area of the floor mats beneath the rear driver-side seat. One person at the scene was bleeding "profusely," and, based upon that bleeding, Officer McGovern determined that the heavily-bleeding passenger had been sitting in the rear driver-side seat (where the blood was located within the vehicle). Officer McGovern did not recall seeing any blood on the defendant.
Officer McGovern testified that another passenger, named "Tenasaca," had been sitting in the front passenger-side seat because that was where the police had found him and because Tenasaca had asked McGovern to retrieve his glasses from the front passenger-side seat.
Officer McGovern asked the defendant where he had been sitting in the vehicle and the defendant responded that he was in the "right rear" seat. Officer McGovern also asked the defendant whether he had been driving the car at the time of the accident and the defendant insisted that he was in the rear passenger-side seat. The defendant never admitted that he had been driving the car. While speaking to the defendant, Officer McGovern testified, he came to believe the defendant was intoxicated based upon the odor of alcohol on his breath, bloodshot and glassy eyes, and because his speech was slurred. The defendant agreed to take a standardized field sobriety test. Officer McGovern performed the horizontal gaze and vertical gaze nystagmus test on the defendant, which he failed, indicating to McGovern that the defendant was highly intoxicated due to the consumption of alcohol. Officer McGovern did not subject the defendant to any other standardized field sobriety tests.
Officer McGovern testified that he concluded that the defendant had been driving the car at the time of the accident, based upon the injuries to the defendant as well to the heavily-bleeding person he determined to have been sitting in the rear driver-side seat. Officer McGovern testified that the defendant had "abrasions" and "bruising" from his seat belt, which extended from his left shoulder towards his chest. The abrasions indicated to Officer McGovern that the defendant was sitting on the driver's side of the vehicle when the accident occurred. Officer McGovern did not recall seeing any seat belt marks on the other passengers. During re-cross-examination, Officer McGovern acknowledged that the seat belt marks on the defendant could have been caused from sitting in either the front seat or the rear seat on the driver's side of the car. Notably, the defendant had himself denied to Officer McGovern that he was seated anywhere on the driver's side of the vehicle.
At approximately 4:45 a.m., another police officer at the scene placed the defendant under arrest for driving while intoxicated. The defendant was placed in handcuffs and transported to police headquarters. Officer McGovern stayed at the scene. Officer McGovern testified that the defendant was no longer free to leave once he was placed in handcuffs.
The defendant introduced into evidence an approximately 90-second clip of police body-worn camera footage from another officer who was present at the scene of the accident (Defendant's Exhibit A in Evidence).1 In that clip, the defendant is visible, not in handcuffs, and officers are questioning him as to where he was sitting in the vehicle. An officer can be heard telling the defendant that he has a mark that doesn't match what he told the officers. The officer states, "If you were in the rear passenger seat, why do you have a mark across your chest like this?" A different officer asks the defendant where he was sitting in the vehicle, to which the defendant responds "back seat." An officer can be heard stating that the defendant's claim he was sitting in the rear of the car "makes no sense." The officer then asks another person present at the scene where he was sitting in the car. That person states: Then a different voice with a higher intonation, also not belonging to the defendant, and perhaps coming from off-screen, states: "I plead the Fifth."
Officer McGovern testified that he was not present during the police questioning depicted in Defendant's Exhibit A and that he did not recall ever hearing the defendant state: "I'll plead the Fifth." Officer McGovern did not advise the defendant of his Miranda rights at the scene and he did not hear any other officer do so. Officer McGovern was not involved in determining who was the owner of the vehicle involved in the accident.
Officer Addison Chavez testified that he has been a member of the Village of Ossining Police Department for approximately seven years. Prior to becoming an officer, Officer Chavez received training at the police academy in identifying intoxicated persons and administering standardized field sobriety tests. On the morning of February 9, 2020, Officer Chavez responded to police headquarters to assist with processing the defendant, who was being investigated for driving while intoxicated.
Officer Chavez testified that he asked the defendant whether he had had any drinks that evening. The defendant responded that he had consumed a "Long Island Iced Tea" and other drinks at a bar in White Plains. Officer Chavez testified that he believed the defendant was intoxicated based upon the odor of alcohol on his breath, slurred speech, and watery and glassy eyes. Officer Chavez requested that the defendant perform three standardized field sobriety tests: the horizontal gaze nystagmus test, the walk and turn, and the one-leg stand. The defendant complied with the requests and performed the tests, but failed all three. Officer Chavez testified that at all times he interacted with the defendant, the defendant was never threatened and that he voluntarily complied with the requests made of him.
After the field sobriety tests, Officer Chavez asked the defendant whether he would submit to a chemical breath test, and the defendant indicated that he would. The defendant was seated at the Datamaster breathalyzer machine, was asked to place his mouth on the mouth attachment, make a proper seal, and blow. Officer Chavez testified that the defendant placed his mouth on the attachment, but failed to make a proper seal, so the machine was unable to register a proper reading. Officer Chavez then read to the defendant the statutory refusal warnings from a standardized form, which was introduced into evidence (People's Exhibit 8 in Evidence). Specifically, Officer Chavez testified, and People's Exhibit 8 indicates, that at 5:29 a.m. and 5:37 a.m., the defendant was warned, inter alia, about the immediate suspension of his license upon a refusal to submit to the test and that a refusal may be admitted into evidence in a trial resulting from his arrest. The defendant refused to submit to the test on each occasion.
On cross-examination, Officer Chavez was asked, among other things, whether he filed a report in this case, and he replied that he had filed a "supplemental." Defense counsel immediately brought to the Court's attention that the People had not...
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