People v. Mule

• Decision Date: 01 April 1986
• Court: New York Supreme Court
• Parties: PEOPLE of the State of New York v. Anthony MULE & John Pattison, Defendants.

Page 283

501 N.Y.S.2d 283

131 Misc.2d 635

PEOPLE of the State of New York v. Anthony MULE & John Pattison, Defendants.

Supreme Court, Criminal Term,

Richmond County.

April 1, 1986.

Caesar D. Cirigliano (Eugene Lamb, New York City, of counsel), for John Pattison, defendant.

Anthony I. Giacobbe, Staten Island, for Anthony Mule, defendant.

William L. Murphy, Dist. Atty. (Karen Schoenberg, Staten Island, of counsel), for plaintiff.

NORMAN J. FELIG, Justice.

The defendants, employees of the Staten Island Rapid Trans Operating Authority, were indicted for the crimes of manslaughter in the second degree and criminally negligent homicide in connection with an incident during which a pedestrian was struck and killed by a train. Defendant Mule was the engineer or motorman of the train, and defendant Pattison was the conductor.

The defendants motions, inter alia, to suppress the results of certain blood tests administered to them shortly after the accident are denied.

Based on the credible evidence adduced at the hearing, it appears that shortly following the fatal accident which underlies the present indictment, the defendants were "directed" or "ordered" to submit to a blood test by Assistant Trainmaster Holmes of the Staten Island Rapid Transit Operating Authority (hereinafter S.I.R.T.O.A.), the foregoing in at least partial response to the request of a S.I.R.T.O.A. police sergeant based upon his observation of the defendants at the scene of the accident. At this juncture, defendant Mule assented in apparent compliance with operating rules requiring that the instructions of a superior railroad official be obeyed. Defendant Pattison requested an opportunity to communicate with his union representative. After he did so, Pattison returned to Holmes and asked whether he was being "ordered" to submit to a blood test, whereupon Holmes responded that he was. Pattison then consented, and blood was drawn from both of the defendants. It is the results of these blood tests which the defendants now seek to suppress on the ground, inter alia, that their consent was coerced under the threat of substantial economic sanction, i.e., discipline and removal from the railroad on the ground of insubordination (see, generally, Lefkowitz v. Turley, 414 U.S. 70, 82-83, 94 S.Ct. 316, 324-325, 38 L.Ed.2d 274; Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S.Ct. 616, 619-620, 17 L.Ed.2d 562.) In the court's opinion, the defendants' contentions lack merit.

It is, by now, a well-established proposition of law in New York, that the results of a blood test taken, as here, without an authorizing court order are inadmissible against a defendant in any subsequent Penal Law prosecution, unless taken in accordance with the latter's "consent" (People v. Moselle, 57 N.Y.2d 97, 454 N.Y.S.2d 292, 439 N.E.2d 1235; People v. Magiera, 97 A.D.2d 963, 468 N.Y.S.2d 767; People v. Curran, 90 A.D.2d 661, 456 N.Y.S.2d 281). Consent, in this context, be taken to mean, that the defendant's assent was not the product of duress or coercion, express or implied (see, United States v. Ramey, 711 F.2d 104, 107 [8th Cir.1983] ), so that the ultimate issue to be determined herein is whether the defendants' will in acquiesci to the blood tests was sufficiently overborne to render their results inadmissible at their upcoming trial. ¹ In this regard, the court is not unmindful of the fact that the bulk of the case law regarding the subsequently-acquired incriminating evidence has arisen in the context of alleged violations of the 5th and 14th amendments (see, e.g., Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616,supra; Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, supra; Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370), whereas the present issue regarding the admissibility of blood test results has been stated by the Court of Appeals to present a nonconstitutional issue (People v. Moselle, 57 N.Y.2d 97, 104, 454 N.Y.S.2d 292, 439 N.E.2d 1235, supra ). Nevertheless, the logic underlying Garrity and its progeny is persuasive, and the court is convinced that evidence whose voluntariness would pass constitutional muster would not offend the dictates of People v. Moselle (supra).

This established, the most significant aspect of the development of the law under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, supra, for present purposes is the evolution of the concept that the threat of economic sanctions which will render a defendant's consent involuntary must be "substantial" in its own right (Lefkowitz v. Turley, 414 U.S. 70, 82, 94 S.Ct. 316, 325, supra), and that the "mere risk of any adverse economic consequence, however slight or insubstantial, that might result from [a] failure [to cooperate]" will not automatically result in suppression (United States ex rel Sanney v. Montavne, 500 F.2d 411 [2d Cir.,1974], cert. den. 419 U.S. 1027, 95 S.Ct. 506, 42 L.Ed.2d 302). As the United States Court of Appeals for the Second Circuit went on to observe in People ex rel. Sanney, supra, p. 415:

"A statement challenged on the ground that it was obtained as the result of economic sanctions must be rejected as involuntary only where the pressure reasonably appears to have been of sufficiently appreciable size and substance to deprive the accused of his 'free choice to admit, to deny or to refuse to answer.' [citations omitted] ... It must amount to a choice 'between the rock and the whirlpool'."

Particularly relevant to the matter under review is the case of United States v. Indorato, 628 F.2d 711 [1st Cir., 1980], cert. den. 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476.

In the Indorato case (supra), the defendant, a Massachusetts State Trooper, was convicted inter alia, of conspiracy to commit an offense against the United States, to wit: the theft of property in interstate shipment, based, in part, upon certain admissions which he had made during an interview with his superiors and FBI agents on the afternoon of December 22, 1978. When the defendant became intransigent, a state police detective (Lieutenant White), left the room in order to place a call to the head of the state's detective bureau, and when the former returned, the defendant indicated that he would make a decision regarding the extent of his cooperation "[i]f push comes to shove" ( supra, p. 715). The detective then indicated that the moment just referred to had arrived, whereupon the defendant divulged the heretofore secreted information. In his subsequent prosecution, the defendant maintained that the responses elicited in the foregoing manner had been coerced in a fashion proscribed by the 5th Amendment, and that the product of those statements, as well as the statements...