People v. Mosher

CourtNew York Town Court
Writing for the CourtC. BENN FORSYTH
Citation93 Misc.2d 179,402 N.Y.S.2d 735
Decision Date14 February 1978
PartiesPEOPLE of the State of New York, Plaintiff, v. Gloria MOSHER, Defendant.

Page 735

402 N.Y.S.2d 735
93 Misc.2d 179
PEOPLE of the State of New York, Plaintiff,
v.
Gloria MOSHER, Defendant.
Town Court, Town of Webster.
Feb. 14, 1978.

Page 736

Lawrence T. Kurlander, Dist. Atty. of Monroe County, Thomas D. Cook, Rochester, for the People.

Suter & Summers, Patrick D. Lydon, Webster, for defendant.

DECISION

C. BENN FORSYTH, Judge.

THIS APPLICATION for an Order of Suppression of a Defendant's refusal to take a blood test falls into the confused ways of lower Court case law. At present, the precise issue does not seem to have been considered by the Appellate Courts of this State.

The facts are simple. The Defendant seeks to suppress her refusal to take a blood test upon the ground that she was so hysterical at the time the Miranda's warning was given she did not understand it.

Criminal Procedure Law § 60.45, subd. 2(b)(ii) covers the situation. This Section prohibits introductions of confession taken by law enforcement officers "in violation of such rights as the defendant may derive from the constitution of this state or of the United States". The right against self incrimination has been uniformly held to apply only to testimony and not to physical facts, such as a blood test might reveal. As stated in People v. Craft, 28 N.Y.2d 274, 276, 321 N.Y.S.2d 566, 567, 270 N.E.2d 297, 298.

. . . The initial question to be decided, therefore, is whether the withdrawal of blood, in order to ascertain its alcoholic content, and the receipt in evidence of the analysis report violate a defendant's privilege against self incrimination. The Supreme Court answered that question in the negative . . .

The failure to give Miranda warnings will not prevent the admission of proof of the blood test results. People v. Bartlett, 82 Misc.2d 152, 368 N.Y.S.2d 799; People v. Rosenthal, 87 Misc.2d 186, 384 N.Y.S.2d 358. It can only logically follow that if the taking of a blood test does not violate the right against self incrimination then the refusal to take the test can, likewise, in no way violate the right of self incrimination. This is the point which seems to have been overlooked in such cases as People v. Houghland, 79 Misc.2d 868, 361 N.Y.S.2d 827 or People v. Delaney, 83 Misc.2d 576, 373 N.Y.S.2d 477. As stated in the case of People v. Smith, 79 Misc.2d 172, 173, 359 N.Y.S.2d 446, 448:

. . . Consequently, since there is no constitutional right to refuse to submit to such a test, it necessarily follows that there can be no...

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4 practice notes
  • State v. Fish
    • United States
    • Supreme Court of Oregon
    • April 27, 1995
    ...People v. Haitz, 65 App.Div.2d 172, 411 N.Y.S.2d 57 (1978); People v. Smith, 79 Misc.2d 172, 359 N.Y.S.2d 446 (1974); People v. Mosher, 93 Misc.2d 179, 402 N.Y.S.2d 735 (1978); State v. Flannery, 31 N.C.App. 617, 230 S.E.2d 603 (1976); Westerville v. Cunningham, 15 Ohio St.2d 121, 44 Ohio.O......
  • People v. Rosario
    • United States
    • New York City Court
    • July 30, 1987
    ...greater act of self-incrimination than the conduct itself. People v. Haitz, 65 A.D.2d at 174, 411 N.Y.S.2d 57, quoting People v. Mosher, 93 Misc.2d 179, 180-1, 402 N.Y.S.2d 735 (Webster Town Ct., Monroe Cty.1978). See also Matter of Hoffman v. Melton, 81 A.D.2d Page 911 709, 710, 439 N.Y.S.......
  • People v. Haitz
    • United States
    • New York Supreme Court Appellate Division
    • December 8, 1978
    ...the mechanical application of these "labels" can lead to conclusions which "strain rationality" (People v. Mosher, 93 Misc.2d 179, 402 N.Y.S.2d 735). "If the act of refusal does not violate the right against self-incrimination, then a statement to that effect can be......
  • Mack Trucks, Inc. v. Performance Associates Corp.
    • United States
    • Superior Court of Pennsylvania
    • February 16, 1989
    ...the customer sources, customer geography factors, including by state, by section centers, by zip code and so on." Id. at 453, 402 N.Y.S.2d at 735. The Court held that because Anchor's services enhanced the value of the five magnetic tapes of customer lists, Anchor could claim a lien in......
4 cases
  • State v. Fish
    • United States
    • Supreme Court of Oregon
    • April 27, 1995
    ...People v. Haitz, 65 App.Div.2d 172, 411 N.Y.S.2d 57 (1978); People v. Smith, 79 Misc.2d 172, 359 N.Y.S.2d 446 (1974); People v. Mosher, 93 Misc.2d 179, 402 N.Y.S.2d 735 (1978); State v. Flannery, 31 N.C.App. 617, 230 S.E.2d 603 (1976); Westerville v. Cunningham, 15 Ohio St.2d 121, 44 Ohio.O......
  • People v. Rosario
    • United States
    • New York City Court
    • July 30, 1987
    ...greater act of self-incrimination than the conduct itself. People v. Haitz, 65 A.D.2d at 174, 411 N.Y.S.2d 57, quoting People v. Mosher, 93 Misc.2d 179, 180-1, 402 N.Y.S.2d 735 (Webster Town Ct., Monroe Cty.1978). See also Matter of Hoffman v. Melton, 81 A.D.2d Page 911 709, 710, 439 N.Y.S.......
  • People v. Haitz
    • United States
    • New York Supreme Court Appellate Division
    • December 8, 1978
    ...the mechanical application of these "labels" can lead to conclusions which "strain rationality" (People v. Mosher, 93 Misc.2d 179, 402 N.Y.S.2d 735). "If the act of refusal does not violate the right against self-incrimination, then a statement to that effect can be......
  • Mack Trucks, Inc. v. Performance Associates Corp.
    • United States
    • Superior Court of Pennsylvania
    • February 16, 1989
    ...the customer sources, customer geography factors, including by state, by section centers, by zip code and so on." Id. at 453, 402 N.Y.S.2d at 735. The Court held that because Anchor's services enhanced the value of the five magnetic tapes of customer lists, Anchor could claim a lien in......

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