People v. Pagan

Decision Date03 May 1995
Docket NumberJP-2
PartiesThe PEOPLE of the State of New York, v. Nancy PAGAN, Defendant
CourtNew York City Court

William Nolan, Richard A. Brown, Queens County Dist. Atty., Kew Gardens, for plaintiff.

Eric Callisto (of counsel) (Robert M. Baum, and Legal Aid Society), Kew Gardens, for defense.

DARRELL L. GAVRIN, Judge.

The defendant is charged with Vehicle and Traffic Law § 1192[3], Operating a Motor Vehicle Under the Influence of Alcohol, P.L. § 205.30, Resisting Arrest, and V.T.L. § 1111[D][1], Disobeying a Steady Red Signal.

The People seek to introduce, and defendant seeks to suppress, the refusal of the defendant to submit to a breathalyzer test. A Dunaway/Mapp refusal hearing was held before this Court on March 29, 1995. The People called Police Officer Michael Herbison, the arresting officer, and Police Officer Peter Ferrara from Highway 3. The Court finds that the testimony of both officers had the force and flavor of credibility. The defendant did not call any witnesses.

FINDINGS OF FACT

After due consideration of all the credible evidence adduced at the hearing this Court finds as follows:

On January 28, 1995, at approximately 3:45 a.m., Police Officer Michael Herbison of the 106th Precinct and his partner Officer Peter The defendant was brought to the 112th Precinct Intoxicated Drivers Testing Unit (I.D.T.U.) for purposes of performing chemical testing. At approximately, 4:10 a.m., she arrived at the 112th Precinct accompanied by Officer Herbison. She was immediately brought to the basement of the precinct where the breathalyzer testing is performed. Present at the testing site were the arresting officer, Officer Herbison, his partner, Peter Zittell, and Officers Higgins and Ferrara of Highway 3. At no time were Miranda warnings given to the defendant by Officer Herbison.

                Zittell were on routine patrol at the intersection of Crossbay Boulevard and North Conduit Avenue in Queens County when he observed the defendant driving a grey 1986 Cadillac pass through a steady red light.   Officer Herbison pulled the vehicle over, and as he approached, the defendant rolled down her window.   As Officer Herbison requested the defendant's license and registration, he noted that she had bloodshot, watery eyes, and he detected the strong smell of alcohol on her breath.   The officer further observed that the defendant seemed disoriented, and unaware of her surroundings.   The officer requested that the defendant step out of the vehicle, whereupon he also observed that she was unsteady on her feet.   At 4:00 a.m., Officer Herbison placed the defendant under arrest.   As he was escorting the defendant to the squad car, she became very loud and combative towards the officer
                

Officer Peter Ferrara of Highway 3 testified that he was the officer responsible for administering the breathalyzer test to the defendant. Officer Ferrara stated that he has six (6) years of experience with the I.D.T.U., and has conducted six hundred (600) such tests at a rate of approximately thirty (30) per month.

The test as administered was videotaped and said tape was offered into evidence by the People, and carefully reviewed by this Court. The Court notes that the quality of the audio portion of the tape is extremely poor, rendering it almost inaudible and of questionable use as evidence. For this reason, the Court relies principally on the visual portion of the tape and the live testimony of Officer Ferrara in determining what transpired during the defendant's chemical testing. At the outset as seen on the tape, the defendant consented when asked to take the breathalyzer. Because she consented, she was not read full V.T.L. § 1194 refusal warnings by any officer on the videotape. However, as Officer Ferrara attempted to have her blow into the breathalyzer, the defendant laughed, carried on in a whimsical fashion, and stated "No f---ing way", "I'm not gonna blow in that", "I'm gonna get my car keys and go home". At one point during her efforts to take the test, the defendant apparently removed the mouthpiece (pipette) from the breathalyzer and Officer Ferrara had to reset the machine. Officer Ferrara warned the defendant in response to this conduct that "If you don't blow into the machine you will lose your license". In response, the defendant laughed, and at 5:15 a.m., Officer Ferrara deemed this behavior by the defendant a refusal. Officer Ferrara testified that the full refusal warnings were given to the defendant after he deemed her to have refused, but were not videotaped.

CONCLUSIONS OF LAW
PROBABLE CAUSE

Probable cause is defined as those circumstances and facts within the officer's knowledge, based on trustworthy information, which warrant a person of reasonable caution to believe that an offense has been or is being committed. (See e.g., People v. Wharton, 46 N.Y.2d 924, 415 N.Y.S.2d 204, 388 N.E.2d 341 [1979]; People v. West, 44 N.Y.2d 656, 405 N.Y.S.2d 29, 376 N.E.2d 190 [1978]; People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188 [1975]; People v. Witherspoon, 115 A.D.2d 572, 496 N.Y.S.2d 235 [2d Dep't 1985], appeal dismissed, 68 N.Y.2d 805, 506 N.Y.S.2d 868, 498 N.E.2d 432 [1986].

Probable cause does not require proof beyond a reasonable doubt; it requires information that would lead a person to the conclusion that a crime was or is being committed. (See People v. Crosby, 91 A.D.2d 20, 457 N.Y.S.2d 831 [2d Dep't 1983]; People v. Bigelow In the case at bar, Officer Herbison observed the defendant pass through a steady red light. The Court finds that the stop of her vehicle, based upon this predicate, constitutes legally permissible police action. A police officer may approach and stop a vehicle where the officer has reasonable suspicion that a violation of traffic regulations is involved. (People v. Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218 [1978]; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 [1975]. It is clear that the police action herein was not the product of mere whim, caprice or idle curiosity, but was generated in response to a traffic infraction personally observed by Officer Herbison. (People v. Ingle, supra at 420, 369 N.Y.S.2d 67, 330 N.E.2d 39).

6 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985].

To validate an arrest for driving while intoxicated or impaired, the police officer must have had "reasonable cause" to effectuate the arrest. Reasonable cause for an arrest for driving while under the influence of alcohol may be established through the police officer's observations of the defendant's condition and/or utilizing the so-called screening or field sobriety tests to determine whether the person is intoxicated or impaired. (See P. Gerstenzang, Esq., Handling the DWI Case in New York, (1987 ed.), § 1.4, p. 5).

The Court finds that based upon his personal observations of the defendant, Officer Herbison had probable cause to effectuate her arrest. Once having stopped defendant's vehicle, Officer Herbison observed her to have classic indicia of intoxication: bloodshot, watery eyes, the strong smell of alcohol on her breath, the defendant seemed disoriented, and was unsteady on her feet as she exited the vehicle. Accordingly, defendant's motion to suppress defendant's refusal based upon a lack of probable cause is denied.

REFUSAL

Vehicle and Traffic Law § 1194(2)(f) provides:

Evidence of a refusal to submit to such chemical test or any portion thereof, shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal. [Emphasis added.]

(See People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978]. V.T.L. § 1194 therefore requires, before evidence of a refusal may be admitted, that the People meet their initial burden of showing, by a preponderance of the evidence, that the police delivered a "sufficient warning, in clear and unequivocal language, of the effect of such refusal" and that the person persisted in refusing to take the test. (See, e.g., People v. Briggs, N.Y.L.J. 1/31/94, at page 29, col. 6 [Crim.Ct.Bronx Co.1994] [Oliver, J.]. The statute patently requires that, if the prosecutor fails to go forward with evidence that the required warning was given in clear or unequivocal language, or that the defendant not only refused, but persisted in refusing to submit to the test, a...

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10 cases
  • People v. Borzon
    • United States
    • New York Supreme Court
    • 14 Noviembre 2014
    ...at least one of which must take place after being advised of the sanction for refusal [internal citation omitted]” (People v. Pagan, 165 Misc.2d 255, 261 [Crim Ct, Queens County 1995, Gavrin, J.] ). A refusal may consist of words or conduct (People v. Massong, 105 A.D.2d 1154, 1115 [4th Dep......
  • People v. Robles
    • United States
    • New York City Court
    • 17 Febrero 1999
    ...the test. These hearings have presented a variety of issues, such as whether complete warnings were given, see, e.g., People v. Pagan, 165 Misc.2d 255, 629 N.Y.S.2d 656 (Crim. Ct., Queens Co.1995), and whether the translation of the warnings for a non-English speaking defendant was adequate......
  • People v. Coludro
    • United States
    • New York City Court
    • 18 Octubre 1995
    ...language and the defendant answered "no" when asked if he would take the test, the refusal would have to be suppressed. People v. Pagan, 165 Misc.2d 255, 629 N.Y.S.2d 656 and People v. Rosado, 158 Misc.2d 50, 600 N.Y.S.2d 624 place a burden on law enforcement officials which is never even m......
  • People v. Davis
    • United States
    • New York Supreme Court
    • 17 Marzo 2005
    ...County 1985]; People v Dejac, 187 Misc 2d 287 [Sup Ct, Monroe County 2001]); whether complete refusal warnings were given (People v Pagan, 165 Misc 2d 255 [Crim Ct, Queens County 1995]); and whether the translation of warnings for a non-English speaking defendant was adequate (see People v ......
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1 books & journal articles
  • Administrative hearings
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • 31 Marzo 2022
    ...and rationale are both unpersuasive and dangerous. §831.1 Incomplete Warning Precludes Use of Refusal as Evidence In People v. Pagan , 629 N.Y.S.2d 656 (N.Y. City Crim. Ct. 1995), the defendant was charged with an alcohol related offense. At trial the court granted the defense motion to sup......

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