People v. Rosario

• Decision Date: 30 July 1987
• Citation: 136 Misc.2d 445,518 N.Y.S.2d 906
• Parties: The PEOPLE of the State of New York, v. Alejandro ROSARIO, Defendant.
• Court: New York City Court

Page 906

518 N.Y.S.2d 906

136 Misc.2d 445

The PEOPLE of the State of New York, v. Alejandro ROSARIO, Defendant.

Criminal Court of the City of New York,

Bronx County, Jury Term,

Part III.

July 30, 1987.

Mario Merola, Dist. Atty. (Joseph Muroff, New York City, of counsel), for plaintiff.

Caesar Cirigliano and William K. Sacks, New York City, for defendant.

MARY McGOWAN DAVIS, Judge:

Defendant Alejandro Rosario seeks preclusion of breathalyzer test results obtained as a consequence of his arrest, on March 7, 1986, for driving while intoxicated, in violation of V.T.L. §§ 1192(2) and 1192(3). ^* His motion, made pursuant to C.P.L. §§ 710.20, 710.30 and V.T.L. § 1194, raises issues respecting the extent to which the People must establish, as a condition precedent to introducing breathalyzer test results at trial, defendant's consent to take such a breathalyzer exam.

A hearing with respect to the circumstances surrounding defendant's arrest for driving while intoxicated was conducted before me on December 9, 1986, at which Police Officers Gerald Attanasio and William Kowalski testified. Based upon their credible testimony as recorded in the transcript of the proceedings and on the memoranda of law submitted by both parties, I make the following findings of fact and conclusions of law:

Findings of Fact

On the evening of March 7, 1986, Gerald Attanasio, a police officer assigned to the Intoxicated Driver Apprehension Unit, Highway Patrol Unit One, was on patrol in a marked radio car. At about 7 P.M., he stopped for a red light at the intersection of Tiffany Street and Southern Boulevard in the Bronx. When the light turned green, Officer Attanasio remarked that the car in front of him, a blue Chevy, remained stopped at the light for eight to ten seconds before proceeding on through the intersection. The officer viewed this delay as somewhat "unusual," ^** since at the time there were no pedestrians or other vehicles blocking the street. From his vantage point approximately five feet behind the blue Chevy, Officer Attanasio noticed that the vehicle bore a temporary license plate from the State of Delaware announcing an expiration date of November 6, 1985. Since the temporary license appeared to have expired four months earlier, Officer Attanasio activated his car light and siren and motioned to the driver--later identified as defendant Alejandro Rosario--to pull over beyond the intersection. Defendant complied with the officer's directive and Officer Attanasio approached the blue car. According to the officer, when he asked defendant for his license and registration, he noticed that defendant "had bloodshot and watery eyes and he said something to me, incoherently and slurred ... I knew it to be Spanish but very slurred." The officer also smelled alcohol on defendant's breath and remarked that when defendant alighted from his car, he appeared to be "unsteady" on his feet.

Officer Attanasio repeated his request for defendant's license and registration in Spanish; defendant was unable to produce anything other than an expired registration. The officer then directed defendant to blow into the alco-sensor device. When After placing defendant under arrest, Officer Attanasio gave him the Miranda warnings in English and transported him to the 41st precinct for further investigation and booking. Sometime later that evening, the officer accompanied defendant to the Highway Patrol Precinct Number One, where the breathalyzer test was performed.

the device registered a reading of .11, the officer arrested defendant for driving while intoxicated.

Upon arriving at Highway One, at approximately 8 p.m., Officer Attanasio delivered defendant into the custody of Police Officer William Kowalski, the chemical technician responsible for administering the breathalyzer exam. In response to Officer Kowalski's inquiry whether defendant understood English sufficiently "to understand his rights as an intox[icated driver]," Officer Attanasio indicated that it would be necessary to use the "Spanish tape."

According to Officer Kowalski--whose own command of Spanish is "very poor"--there is a Spanish video cassette at Highway One that is routinely used to advise Spanish speaking defendants of their rights with respect to the administration of breathalyzer tests. Officer Kowalski put this tape in the video cassette recorder, sat the defendant down directly in front of the television set, turned up the volume, and pointed to the screen. Officer Kowalski waited while defendant viewed the three minute tape, which depicted a "Spanish interpreter sitting in a room that we do the test in, and he's just reading from the script." After the tape was over, Officer Kowalski switched off the machine, turned to defendant, and inquired in Spanish, "Are you going to participate in this chemical test, yes or no?" to which defendant responded, "Si." According to the officer, this response "indicated to me that he saw the tape and understood what it said, and he was going to take the test that the interpreter offered him." Officer Kowalski then escorted defendant to a nearby cubicle and, with hand motions, instructed him to blow into the mouthpiece.

The officer specified that defendant cooperated fully in this procedure and never gave any sign that he did not understand the tape, or that he did not wish either to watch the tape or to blow into the breathalyzer. Because of the language barrier, defendant was not given the customary coordination tests, nor was an Intoxicated Drivers' Report completed in this case. No videotape was made of defendant's consent to take the breathalyzer, because there were no video tapes available in the precinct that evening.

Discussion

Defendant claims that the breathalyzer test results--and his affirmative agreement to participate in the test--must be precluded because he was not given sufficient warnings of his rights to remain silent and to refuse administration of the breathalyzer exam. Specifically, defendant urges that, even though there is no evidence that he refused to take the breathalyzer test, the People must establish, as a condition precedent to admission of the breathalyzer results at trial, that the warnings set forth in V.T.L. § 1194(2) were given to him in "clear and unequivocal" language and that he "knowingly waived his right to refuse the breathalyzer test." Defendant also seeks suppression of the breathalyzer results on Fourth Amendment grounds, protesting that the initial stop of his vehicle was unsupported by reasonable cause to believe that he had committed a traffic infraction.

The People counter that the statutory safeguards mandating that a defendant be advised, "in clear and unequivocal language," of his right to refuse a chemical test and of the consequences of that refusal (see V.T.L. § 1194[4] ) were not triggered in this case, since defendant concededly agreed to take the breathalyzer test when invited to do so. They maintain further that defendant's one-word expression of consent to give a breath sample is not a testimonial statement protected by the Fifth Amendment; therefore, the police officer's evident failure to apprise defendant of his Miranda warnings, in language the For the reasons detailed below, which were announced in an oral opinion rendered April 2, 1987, this Court concludes that the People have indeed met their burden of establishing the legality of the police conduct in this case. Accordingly, defendant's motion to preclude the breathalyzer test results--and his statement of intent to take the test--is denied.

Spanish-speaking defendant understood, does not bar admission of this evidence at trial. Finally, the People assert that the stop of defendant's vehicle was reasonable and accorded fully with the Fourth Amendment's proscription against arbitrary seizures.

A. Fifth Amendment Claims

Preliminarily, it is necessary to address defendant's insistence on denominating this a "Huntley " hearing--involving alleged infringements of his Fifth Amendment privilege against self-incrimination--notwithstanding the People's representation that no statements, other than defendant's one-word agreement to take the breathalyzer test, are to be offered at trial. Plainly, the People are correct in asserting that neither the act of blowing into the breathalyzer itself--nor defendant's verbal assent to take the test--is a testimonial communication protected by the federal and state constitutional guarantees against compelled self-incrimination (U.S. Constitution 5th and 14th Amends; N.Y. Const., Art. I, Section 6). Indeed, the Court of Appeals, in People v. Hager, 69 N.Y.2d 141, 142, 512 N.Y.S.2d 794, 505 N.E.2d 237 (1987), has recently reaffirmed the established principle that evidence is "testimonial or communicative," and therefore shielded from compelled disclosure by the state, only when it reveals a person's subjective "knowledge or thought processes." 69 N.Y.2d at 142, 512 N.Y.S.2d 794, 505 N.E.2d 237. Unlike spoken or written testimony, or physical evidence such as a "nod or a headshake," the sobriety test at issue here--blowing into a breathalyzer--in no way reveals what the defendant is thinking; rather, the significance of such evidence lies in the physical act itself, because the body's response to the chemical test is "inherently different from the response[ ] of a sober person." People v. Boudreau, 115 A.D.2d 652, 654, 496 N.Y.S.2d 489 (2d Dept.1985). See, e.g., Schmerber v. California, 384 U.S. 757, 761 n. 5, 86 S.Ct. 1826, 1830 n. 5, 16 L.Ed.2d 908 (1966); People v. Craft, 28 N.Y.2d 274, 277, 321 N.Y.S.2d 566, 270 N.E.2d 297 (1971) (no Miranda warnings necessary prior to withdrawal of blood for chemical analysis); People v. Hager, 69 N.Y.2d at 142, 512 N.Y.S.2d 794, 505 N.E.2d 237; People v. Sanchez, 134 Misc.2d 726, 727, 512 N.Y.S.2d 638 (Crim.Ct., N.Y.Cty.1987) (defendant not entitled to Miranda warnings before physical coordination tests); People v. Shaw, 133 Misc.2d...