People v. Pelegrin

• Decision Date: 14 January 2013
• Citation: 959 N.Y.S.2d 401
• Parties: The PEOPLE of the State of New York, v. Luis PELEGRIN, Defendant.
• Court: New York Criminal Court

959 N.Y.S.2d 401

The PEOPLE of the State of New York,

v.Luis PELEGRIN, Defendant.

Criminal Court, City of New York, Bronx County.

Jan. 14, 2013.

Shana Tela, Steven Banks, Legal Aid Society, Bronx, for Defendant.

Courtney Robbins, Assistant District Attorney, Criminal Court Bureau, Bronx County District Attorney Office, Bronx, for The People.

JEANETTE RODRIGUEZ–MORICK, J.

Defendant Luis Pelegrin, charged with violating N.Y. Vehicle and Traffic Law §§ 1192(1), 1192(2), and 1192(3), Operating a Motor Vehicle While Under the Influence of Alcohol and Drugs, moves pursuant to N.Y.Crim. Proc. Law § 170.30(1)(f)¹ to dismiss the charges against him on the grounds that they are based on violations of the Equal Protection and Due Process Clauses of the United States Constitution and of similar provisions in the New York State Constitution. In deciding the instant motion, this Court has considered Defendant's Motion to Dismiss, dated July 31, 2012 ("Def.'s Mot. to Dis."), its attached exhibits (1–2), and its appended Decision and Order, People v. Rodriguez, Docket No. 2011BX029446; the People's Affirmation in Opposition, dated October 18, 2012 ("Aff. in Opp."); and other records in the Court file.²

Background

The People allege that the police stopped Defendant for "repeatedly swerving in and out of his lane." (Aff. in Opp. 8.) An officer on the scene also observed Defendant to have the telltale characteristics of intoxication: bloodshot eyes, slurred speech, unsteadiness on feet, and a strong odor of alcohol. Defendant was also heard to have said "I had five shots five hours ago." (Def.'s Mot. to Dis., Ex. 1, IDTU Rep.; Compl. at 1.)

Defendant was subsequently taken to the Intoxicated Driver Testing Unit ("IDTU") at the 45th precinct. There, an officer administered a chemical test analysis of Defendant's breath, which revealed that Defendant had a .13 blood alcohol content ("BAC"). (Def.'s Mot. to Dis. 8; Chem. Test.; Compl.) In addition, officers filled out an IDTU Technician Test Report. The officer who completed that Report crossed out the physical coordination test ("PCT") section and wrote "Did not offer" and "Language Barrier." (IDTU Rep.)

These last allegations form the basis of Defendant's constitutional challenge, since, according to Defendant, English-speaking suspects receive the PCT as a matter of course but non-English speaking suspects are routinely denied the test. The result is that two classes of suspects exist: (1) English speakers who are afforded "two opportunities to show that they are or are not intoxicated," and (2) non-English speakers who are "limited" to the BAC test. (Def.'s Mot. to Dis. 8.)

I. Equal Protection Analysis

The Fourteenth Amendment of the United States Constitution prohibits states from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. Likewise, the New York State Constitution provides that:

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No

person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

NY Const. art. I, § 11. Thus, "[a]n agency of the State denies equal protection when it treats persons similarly situated differently under the law, and this difference may be created by the grant of a preference as well as by the imposition of a burden[.]" Abrams v. Bronstein, 33 N.Y.2d 488, 492, 354 N.Y.S.2d 926, 310 N.E.2d 528 (1974).

Generally, courts analyze equal protection claims by (1) determining the classification, if any, made by the state's action, and then (2) applying the appropriate level of scrutiny to the law, policy, or rule creating that classification to (3) ensure that such law, policy, or rule (or classification) is adequately related to a justifiable government interest. See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies § 9 (3d ed. 2006).

A. The State's Language–Based Classification

In order to establish that a state action discriminates against a suspect class, one "must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender." Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir.1999). Individuals asserting violations of their rights may establish such intentional discrimination in one of two ways: (1) by showing they are subject to a facially discriminatory law or policy, i.e., one that expressly classifies persons on the basis of race, national origin, or gender; or (2) by showing that a state actor applied an otherwise facially neutral law or policy in a discriminatory manner and intended to do so. Id. If neither of the above can be established, then no equal protection violation will be found.

When a race-based violation of equal protection is established, by either of the two methods discussed above, strict scrutiny applies. In addition, even when it cannot be shown that the state has intentionally discriminated against a suspect class, strict scrutiny will apply to a non-suspect classification, if a fundamental right is at issue.³ Absent either intentional discrimination against a suspect class or the implication of a fundamental right, rational basis review applies.

Here, Defendant does not argue that the NYPD has a facially discriminatory rule or policy concerning the PCT that was denied to Defendant. Instead, Defendant argues that the NYPD's denial of the PCT impermissibly classified him on the basis of language, i.e., as a non-English speaker. As Defendant concedes (see Def.'s Mot. to Dis. 12), government actions that classify individuals on the basis of language do not receive heightened scrutiny because such a classification, although inextricably intertwined with ethnicity in the case of many, is not a classification that is identified as a suspect classification under the controlling case law. Soberal–Perez v. Heckler, 717 F.2d 36, 41 (2d Cir.1983).

B. Disparate Impact

Absent an overt suspect classification, Defendant must show that the NYPD's implementation of the rule or policy concerning the PCT had (1) a disparate impact on a class, here, non-English speaking suspects, and (2) that the NYPD intended to discriminate against that class. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ("[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." (internal citation omitted)).

Under well-established case law, discriminatory impact claims cannot be substantiated simply by noting a potentially large population of affected individuals. Statistics or other evidence is needed to prove disparate impact for purposes of equal protection. As the Court of Appeals has stated:

Although plaintiffs may make the necessary showing by means of statistical evidence, their burden is

not met by submission of a two-page summary asserting that such evidence can be produced if needed.... Irrespective of the persuasiveness of the unproduced evidence, it was unavailable to Supreme Court in deciding the motion.

Becker v. City of New York, 249 A.D.2d 96, 98, 671 N.Y.S.2d 88 (1998) (internal citations omitted).

Defendant's motion papers contain allegations that Spanish is "the most, if not the most, common non-English language spoken by residents of New York City." (Def.'s Mot. to Dis. 12 (citing People v. Rodriguez, No.2011BX029446, at *5 n. 1 (Sup.Ct. Bx. Co. April 16, 2010) (Sackett, J.))). Aside from this assertion, however, Defendant fails to proffer any competent evidence regarding the number of non-English speakers affected by this rule, policy or procedure.

Even assuming Defendant had provided the Court with competent evidence from which disparate impact could be inferred, "standing alone, [such impact] does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny ... justifiable only by the weightiest of considerations." Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (internal citation omitted). As already noted, see supra pp. 406–07, a showing of intent is also required. Unfortunately, other than the conclusory assertion that "the Police Department treated defendant the way that they did because he looked and sounded Hispanic

" (Def.'s Mot. to Dis. 11), Defendant fails to proffer any evidence that the NYPD's policies are intentionally discriminatory or that the officer involved intended to discriminate against Defendant. Statistics can sometimes be so overwhelming as to give rise to an inference of discriminatory intent without more, see, e.g.,

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ; however, Defendant's motion contains no statistical evidence concerning the number of Hispanics and/or non-English-speaking suspects that are denied the PCT on the basis of a "language barrier," compared with non-Hispanics and/or English-speaking suspects, Hispanic or otherwise.

Based on the record at this stage of the proceedings, rational basis review applies. This level of review requires only that the state show that its actions are reasonably related to a legitimate state interest. The People allege that any disparate treatment between non-English-speaking and English-speaking suspects is justified by the state's interest in avoiding the inaccuracies that would result from poorly translated PCT instructions. (Aff. in Opp. 6.) The People also allege that administering the PCT in other languages would result in a tremendous financial burden. (Id. at 12–13.)

The Court's "inquiry must focus on whether the action bears a rational relationship to [that] legitimate governmental...