People v. Morse

• Decision Date: 01 February 1985
• Citation: 127 Misc.2d 468,486 N.Y.S.2d 621
• Parties: The PEOPLE of the State of New York v. James R. MORSE, Jr., Defendant.
• Court: New York County Court

Page 621

486 N.Y.S.2d 621

127 Misc.2d 468

The PEOPLE of the State of New York v. James R. MORSE, Jr., Defendant.

Essex County Court.

Feb. 1, 1985.

John C. McDonald, Dist. Atty., Elizabethtown, for the People of the State of New York.

Joseph R. Brennan, Glen Falls, for defendant.

DECISION AND ORDER

JAN H. PLUMADORE, Assigned Judge.

At about 11:18 p.m. on January 28, 1984, this Defendant was involved in a vehicle/pedestrian accident in the Town of Westport which resulted in the death of Olive Anson. After preliminary on site investigation by New York State Troopers Tempastelli and Carpenter, the Defendant and his passenger were transported to the Westport State Police Station (some 5 to 10 minutes from the scene). Shortly after their arrival Defendant was formally arrested at 11:58 p.m. and charged with violating Vehicle & Traffic Law Section 1192(3).

The Defendant admits via his Memorandum of Law that he was promptly advised of both his Miranda and Vehicle & Traffic Law rights, as a result of which he called his then-attorney. Counsel declined to allow his client to submit to a breath test, which refusal was communicated at 12:25 a.m. on January 29, 1984.

At 1:13 a.m. Trooper Carpenter commenced his sworn telephonic application to Acting Essex County Judge George Severson (Schenectady County Surrogate) for an order authorizing the taking of blood from the Defendant under Vehicle & Traffic Law Section 1194-a, which order was granted at 1:30 a.m.; it is not seriously contended that the order was improperly granted. The blood sample was drawn at 1:52 a.m. at the Elizabethtown Community Hospital. Later that morning the Defendant was arraigned in Westport Town Court on a charge of Violation of Vehicle & Traffic Law Section 1192(3).

No felony complaint was ever filed herein and the matter was presented directly to the June 1984 Essex County Grand Jury which returned Indictment No. 12 alleging three counts of violations of Section 1192, subdivisions 3., 1. and 2. respectively. A submission of Vehicular Manslaughter was no-billed. He was arraigned thereon in Essex County Court on July 2, 1984.

The Defendant's omnibus motion is dated August 16, 1984 and was received by the Court Clerk the same day.

The People's Answering Affidavit, dated November 21, was received at the Court's chambers in Malone on November 23. A Supplemental Affidavit, drafted December 10, 1984 in apparent response to the Court's inquiry of November 29, was received at Malone on or about December 12. The Court rendered its initial Decision and Order on January 2, 1985, as a result of which a suppression hearing was held in Elizabethtown on January 11.

The Defendant's Memorandum of Law in support of suppression, dated January 18, 1985, was received in Malone on January 22nd. Its principal contentions are:

A) 1194's "within two hours of arrest" requirement applies to 1194-a blood tests as well;

B) that Defendant was "under arrest" at the scene and thus the blood was taken beyond the prescribed two hour period, and

C) that the purported consent proffered by Defendant's then-counsel immediately after the blood test was ordered was involuntary and invalid.

The People's response thereto was dated and received January 31, 1985.

A.) I. THE TWO-HOUR REQUIREMENT

This Court is of the opinion that the two hour limitation period(s) of 1194' § 1. (1) and (2) do not apply to tests ordered pursuant to 1194-a.

Nowhere in the text of 1194-a is there a reference to a time limit within which either the application, the order or the chemical test must be made; nowhere are the words "two hours" used; in fact, in the five (5) references to 1194 found therein there is not one reference to 1194' § 1. (1) or (2).

The first reference to 1194 comes in 1194-a 1. which says in essence that despite the fact that a person may refuse a test under 1194, he or she cannot refuse when one is ordered pursuant to 1194-a.

The second reference to 1194 comes in 1194-a 2. (d), specifically to its (1194's) subdivision 2. This subdivision deals not with time limits but with the consequences to a motorist and duties of the "attending officer" when the motorist refuses the chemical test.

Section 1194-a' § 2. (b)(2) is also worthy of note at this point for its reference to a "breath test administered by a police officer in accordance with section eleven hundred ninety-three-a" (emphasis added). If the Legislature had meant to say "administered" pursuant to the terms of 1194' § 1. (2) in this context or 1194-a 4.'s, infra, they would have.

The third reference to 1194 occurs in 1194-a' § 3. (b) in the latter portion of the third sentence thereof:

"after being placed under lawful arrest such person refused to submit to a chemical test in accordance with the provisions of such section eleven hundred ninety-four of this chapter or is unable to give his consent to such a test."

The term "lawful arrest" is unique to 1194-a: 1194 merely uses the term "placed under arrest." Refusal, a term not found in 1194' § 1. (1) or (2), is unique in 1194 to its subdivision 2. and is one of the final prerequisites necessary to set 1194-a's processes in motion. "Unable to give his consent" is the alternative final prerequisite (1194-a 2. (d)) and is found nowhere in 1194.

The fourth 1194-a reference (3. (d)) to 1194 is to its subdivision 7., which deals with who is qualified to take blood, liability or lack thereof, and testimonial competence.

Finally, the fifth 1194-a reference (subdivision 4.) to 1194 is again to its subdivision 7.

As noted at the outset of this discussion, there are no time limits set forth in 1194-a. The only reference to time in 1194-a is in the second last sentence of subdivision 3. (d): "(i)n all cases the order shall include ... the date and time it was issued." Such a requirement is hardly surprising in view of the fact that these orders may well be issued ex parte over the telephone and are amandate (subdivision 4.) that someone take a sample of the motorist's blood.

This Court must conclude that the two hour period at issue herein (1194 1. (1)), that commencing at arrest, is no longer applicable once the motorist has refused to take a chemical test. By that statute's very terms the police have two hours from arrest within which to administer an 1194 test. Once a motorist has refused, the process and the statute move on to 1194 subdivision 2. The officer need not wait until the two hours have almost expired to see if the motorist will change his mind (see O'Dea v. Tofany, 41 A.D.2d 888, 342 N.Y.S.2d 679), nor are repeated refusals required (see Geary v. Commissioner of Motor Vehicles, 92 A.D.2d 38, 459 N.Y.S.2d 494). The two hour period is no longer a relevant consideration for purposes of 1194-a.

This conclusion is of course at variance with that reached by the Hon. Seymour Lakritz (Queens County Supreme Court) in People v. D'Angelo, 124 Misc.2d 1050, 478 N.Y.S.2d 538. The opposite conclusion reached in D'Angelo was based solely on the "Memorandum of Legislative Representative of City of New York" (McKinney's Session Laws of N.Y., 1983, ch. 481, p. 2569) wherein it is stated that any 1194-a chemical test "may be administered only in accordance with existing guidelines in Section 1194 of the Vehicle & Traffic Law" (language identical to that found in the Assembly Memorandum in Support). As is apparent from the within analysis, it is this Court's conclusion that such is not the case (with the exception of 1194's subdivision 7.; see 1194-a 3. (d) and 4. as indicated supra).

The within analysis finds additional support in the text of 1194-a, specifically subdivisions 2., 3. (b) and (d) and 4. (the latter two as noted supra). The statute goes to great lengths to list the criteria that must be satisfied, by cross-reference to 1193-a, 1194 subdivision 2. and those it sets forth, before an order may be granted. It then specifically states that the test must be administered "in accordance with the provisions of subdivision seven of" Section 1194 (3. (d); see also 4.). Again, if the Legislature had meant to include the two hour time limits of 1194' § 1. (1) and (2) (which is by no means clear from either of City Representative's or the Assembly's Memoranda) within 1194-a's proscriptions and prescriptions, they would have done so.

Section 1194-a, then, is a statutory creature existing entirely separate and distinct from 1194. It borrows in part from it, relates back to it (in the form of the references in 1194' § 2. to an 1194-a order), and only becomes operative when, among other things, there has been a refusal.

One final note on the legislative history of 1194-a. As noted, the Memoranda of the Representative of the City of New York and the Assembly lend dubious support to the proposition that 1194's two hour requirements also apply to 1194-a ordered tests. The only other published memorandum of which this Court is aware, the Governor's Memorandum--"Compulsory Chemical Tests for Intoxication" (McKinney's Session Laws of N.Y., 1983, ch. 481, p. 2776), lends it no support.

In summary the Court thus concludes that while tests under 1194 must be taken within 2 hours of arrest to be admissible, tests taken under 1194-a need not be.

II. ADMISSIBILITY OF THE TEST RESULTS UNDER SECTION 1194-a

While this issue was not squarely raised either on the papers or at the hearing, it was by the Court's perusal of the Assembly Memorandum of Support (part of the Governor's Bill jacket). Again, the quote in this regard in the City Representative's Memorandum--"the evidence derived therefrom (chemical tests) may only be used in the prosecution of a vehicular assault or homicide" (emphasis supplied; McKinney's Session Laws of N.Y., 1983, ch. 481, p. 2569)--is taken directly from the Assembly Memorandum. The Assembly Memorandum goes on at length to describe how People v. Moselle, 57 N.Y.2d 97, 454 N.Y.S.2d 292, 439 N.E.2d 1235 effectively negated the taking of blood, with or without...