People v. Nigohosian
| Decision Date | 23 February 1988 |
| Parties | The PEOPLE of the State of New York v. George NIGOHOSIAN, Defendant. |
| Court | New York District Court |
Denis Dillon, Dist. Atty., Nassau County, for the People.
Robert F. Harper, Garden City, for defendant.
The defendant, George Nigohosian, is charged with a violation of Section 1192, subd. 2 of the Vehicle and Traffic Law, "operati a motor vehicle while under the influence of alcohol or drugs with .10 percentum or more by weight of alcohol" in his blood as shown by chemical analysis of his ... breath.
A hearing was held before me on January 22, 1988 on the issue of the propriety of the police in administering the breathalyzer test and the admissability of the results thereof. Police Officer Sullivan, Police Officer Annese, Police Officer Johnson and defendant George Nigohosian testified. There was also a stipulation on the record between counsel for defendant and People regarding testimony of counsel.
The Court makes the following findings of fact based upon the credible evidence adduced at the hearing.
On August 10, 1987 at about 10:56 P.M., Police Officer Sullivan received an assignment via radio, while on patrol, to report to the scene of an automobile accident on Newbridge Road and Columbus. The accident was a rear end collision. The defendant, while operating his Jaguar, drove into the rear end of a station wagon which had stopped in front of his car. Police Officer Annese arrived at the scene about 11:15 P.M. and assisted Police Officer Sullivan in arresting the defendant on charges of violating Section 1192, subd. 2 of the Vehicle and Traffic Law.
Together, Officers Sullivan and Annese transported defendant in Officer Sullivan's police car to the Central Testing Unit of the Nassau County Police Department at Police Headquarters on Franklin Avenue in Mineola. Police Officer Sullivan drove while Police Officer Annese was in the back seat with the defendant, who was now in handcuffs.
After arrival at Police Headquarters, the two officers took defendant to the Central Testing Unit where they were joined by Police Officer Johnson, the breathalyzer technician. At the Central Testing Unit, Police Officer Sullivan read to the defendant the defendant's authorization portion of Police Department form 38, which is the authorization to submit to a breathalyzer test of defendant's breath and advises the defendant of the consequences of a refusal to submit to the test.
Defendant, after being read the authorization, requested permission to make a telephone call. Permission was granted and he gave the officers his attorney's phone number and they placed the call for him. The defendant spoke to his attorney who also spoke to Officer Sullivan. The attorney only asked the officers as to his client's physical condition and the condition of the driver of the other car (who apparently was injured in the accident and transported by ambulance to a hospital). This call had a duration of about 9 minutes.
At the conclusion of the call, the defendant told the police that his attorney had advised him not to take the test. The defendant stated that he did not know what to do as he felt his attorney was young and was his business attorney, and he was not sure if he had experience in this area. Defendant asked the officers what he should do.
The officers advised defendant that they could not tell him what to do. They read the authorization again to the defendant and Police Officer Johnson explained to him the following alternatives:
If defendant took the test and "passed" it, then he would not be charged, and he would be taken back to the scene of the accident and released. If he "failed", he could be charged with either driving while impaired or intoxicated, depending upon the results of the test, and held overnight for arraignment in the morning. If the defendant refused to take the test, then he would still be held overnight for arraignment in the morning on a charge of driving while intoxicated (violation of Section 1192, subd. 3 of the Vehicle and Traffic Law) and that his license would be suspended and subsequently could be revoked by the Department of Motor Vehicles after a hearing within 15-30 days.
After this exchange, the defendant agreed to take the test, although he would not sign the authorization form.
The stipulation between counsel and the District Attorney was that if counsel testified then he would testify as to his advice to defendant and the conversation related above with Officer Sullivan.
After Police Officer Johnson administered the test, the defendant requested permission to make two telephone calls and the permission was granted. The first call was to an unknown party and the second call was to counsel. Defendant did not request to call counsel or anyone else prior to agreeing to take the test after the second reading of the authorization and the explanation of the consequence of taking or refusing to take the test.
Counsel for defendant argues that the police, after becoming aware that counsel had entered the case and had advised the defendant not to take the breathalyzer test, thereafter should not have administered it. After having done so, the results must be suppressed.
In a fifth amendment situation where the defendant is about to be interrogated and a self incriminating statement may be made, it is quite clear that once counsel has entered the case, the police may not further interrogate the defendant ( People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537). Nor, for that matter may the police interrogate if they know or should know that the defendant is represented by counsel in another matter, even if that matter is unrelated to the matter under investigation ( People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709). It is equally clear in 5th amendment situations, a defendant who is represented either in the instant matter or even in another unrelated matter, the defendant may not waive his right to counsel, without counsel present (People v. Rogers supra ).
In the 5th amendment situations, there is clearly an unqualified right to counsel. However, in the instant situation, dealing with the administration of a breathalyzer test, there is, at best, a qualified right to counsel. In People v. Gursey, 22 N.Y.2d 224, 229, 292 N.Y.S.2d 416, 239 N.E.2d 351, the Court of Appeals stated:
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People v. Martin
...the defendant of his own volition thereafter does consent to take such a test, the results should not be suppressed. People v. Nigohosian, 138 Misc.2d 843, 525 N.Y.S.2d 556. The Court has been cited People v. Houghland, 79 Misc.2d 868, 361 N.Y.S.2d 827, as authority for the proposition that......
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People v. Phraner
... ... The Court found that the test results were not produced by police interrogation, threats or overbearing conduct in violation of the defendant's rights. (See People v. Nigohosian, 138 Misc.2d 843, 525 N.Y.S.2d 556). The same is true of the instant [151 Misc.2d 965] case. It cannot be successfully argued that the limited right to counsel was denied herein. The defendant was advised that he had a right to call his lawyer. A telephone and directory were supplied and ... ...
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People v. Rosado
...need he or she be informed of the effect of that refusal.2 The only reported decision that deals with this issue, People v. Nigohosian, 138 Misc.2d 843, 847, 525 N.Y.S.2d 556 (Dist.Ct.Nassau Co.1988), does so in dictum.3 Although the drivers in both Thomas and Geary were given warnings twic......