People v. Ortega-Flores

• Decision Date: 28 May 2020
• Docket Number: 2018-2151 W CR
• Citation: 125 N.Y.S.3d 219
• Parties: The PEOPLE of the State of New York, Respondent, v. Freddy ORTEGA-FLORES, Appellant.
• Court: New York Supreme Court — Appellate Term

125 N.Y.S.3d 219

The PEOPLE of the State of New York, Respondent,
v.
Freddy ORTEGA-FLORES, Appellant.

2018-2151 W CR

Supreme Court, Appellate Term, New York.

Decided May 28, 2020

Legal Aid Society of Westchester County (Debra A. Cassidy of counsel), for appellant.

Westchester County District Attorney (Christine DiSalvo and William C. Milaccio of counsel), for respondent.

PRESENT: BRUCE E. TOLBERT, J.P., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in six simplified traffic informations with, respectively, driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192[3] ), refusal to take a breath test ( Vehicle and Traffic Law § 1194[1][b] ), driving across official markings ( Vehicle and Traffic Law § 1227[1] ), consumption or possession of alcoholic beverages in certain motor vehicles ( Vehicle and Traffic Law § 1128[d] ), failing to keep right ( Vehicle and Traffic Law § 1120[a] ) and unlicensed operation of a motor vehicle ( Vehicle and Traffic Law § 509[1] ).

Defendant moved to suppress noticed statements and his refusal to submit to chemical breath testing. At a hearing on defendant's motion, in which defendant had the assistance of a Spanish interpreter, a state trooper testified that she and her partner had effected a traffic stop of a vehicle driven by defendant after having observing it swerve, approximately four times, into a lane for oncoming traffic. The trooper saw multiple, partially consumed bottles of beer in the vehicle, and observed that defendant had droopy, bloodshot, watery eyes, had a strong odor of alcohol coming from his breath and had to balance himself while exiting his vehicle. When the trooper asked defendant for his driver's license, defendant instead presented his Mexican consular identification card.

125 N.Y.S.3d 221

Throughout their interaction, the trooper spoke only in English, and defendant responded solely in English, which responses the trooper fully comprehended. In particular, when the trooper, as part of her prearrest investigation, asked defendant whether he had been drinking, he responded, "No, no. I don't drink nothing. My friends were drinking."

Defendant failed each of three field sobriety tests. He consented to a preliminary breath test (PBT), during which, the trooper testified, her partner had told defendant to "blow" in Spanish. Defendant's blood alcohol content was twice the legal limit. The trooper then arrested defendant for driving while intoxicated. She then read defendant his Miranda ( Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ) rights and the refusal warnings, both in English. On three separate occasions, defendant refused chemical testing of his breath.

In an order dated July 31, 2017, the Justice Court denied defendant's motion to suppress his noticed statement and refusal. On August 21, 2017, defendant pleaded guilty to driving while intoxicated (common law), with the assistance of a Spanish interpreter. Immediately prior to so pleading, defendant signed a waiver of right to appeal form. His plea was accepted by the court, and, on September 25, 2017, he was sentenced in accordance with the plea agreement.

We agree with defendant that his waiver of his right to appeal was not knowing, voluntary and intelligent. Both the prosecutor, who conducted the plea allocution, and the court "failed to advise the defendant that he would ordinarily retain the right to appeal even after pleading guilty, but that in this case he was being asked to voluntarily relinquish that right as a condition of the plea agreement" ( People v. Mojica , 178 A.D.3d 856, 856-857, 111 N.Y.S.3d 885 [2019] ). As such, the transcript "does not demonstrate that the defendant understood the nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of...