People v. Rosenthal

• Decision Date: 03 May 1976
• Citation: 384 N.Y.S.2d 358,87 Misc.2d 186
• Parties: The PEOPLE of the State of New York v. Edith M. ROSENTHAL, Defendant.
• Court: New York District Court

Page 358

384 N.Y.S.2d 358

87 Misc.2d 186

The PEOPLE of the State of New York v. Edith M. ROSENTHAL, Defendant.

District Court, Nassau County, First District Criminal Part VIII.

May 3, 1976.

Denis Dillon, Dist. Atty., Nassau County, Mineola, for the People; by John J. Budnick, Asst. Dist. Atty.

Legal Aid Society, for defendant; by Joseph Milone, Jr., Nassau County, Mineola, of counsel.

DECISION AFTER HEARING

HAROLD FERTIG, Judge.

The Court, after a hearing, granted two parts of the defendant's motion to suppress evidence to be presented by the People in the above-entitled action. Both involved statements made by the defendant while in custody without having been given the Miranda warnings. One issue remains to be decided by this Court and that is the subject of this decision.

The defendant was stopped by a Police Officer after he noticed her driving in what appeared to be an erratic manner weaving from side to said. After she came to a stop, the officer testified she had slurred speech and had difficulty getting out of her motor vehicle. When she finally came out of the automobile with the assistance of the Officer, she leaned against the car to keep from falling. Certain statements made by the defendant both at the scene and later at the police station were suppressed as being involuntarily made. After her arrest for Driving While Impaired by the Consumption of Drugs pursuant to Sec. 1192(4) V.T.L., the defendant was taken to the Police Precinct and after answering questions pertaining to identification, the defendant, without being first warned that she had a right to remain silent, that anything she said might be used against her, that she had a right to a lawyer, and that if she could not afford a lawyer, one would be appointed for her, she was given certain 'sobriety tests.' She was not told that she need not take the tests and was told specifically what acts she was to perform. The Police Officer administering the tests instructed her specifically what she was to do and checked certain boxes on Police Form #38 describing the manner in which she performed.

Shortly after the decisions of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) by the U.S. Supreme Court, there were two opposing decisions relating to 'Performance Tests' in the District Court, Nassau County. The first, People v. McLaren, 55 Misc.2d 676, 285 N.Y.S.2d 991 decided in 1967 held that the failure to give a defendant the Miranda warnings prior to his taking the performance tests was fatal. The second, People v. Suchocki, 57 Misc.2d 26, 291 N.Y.S.2d 237 decided in 1968 determined that the Miranda warnings were not applicable to sobriety tests.

Since the two aforementioned decisions, there have been many decisions concerning sobriety tests in the Appellate Courts of jurisdictions outside the State of New York, but this Court could find no appellate determination of this question in the State of New York. In Schmerber v. California, supra, the Court made a distinction between 'communications' or 'testimony' and 'real or physical' evidence. As a result of that decision, many subsequent cases determined that evidence obtained as a result of physical compulsion would not be barred because of the failure to give Miranda warnings. Included, were such items as physical compulsion to stand in a line-up (People v. Falco, 67 Misc.2d 520, 324 N.Y.S.2d 680); blood tests, People v. Robinson, 27 N.Y.2d 864, 317 N.Y.S.2d 19, 265 N.E.2d 543; the examination of a defendant's rectum for narcotics, Blackford v. U.S., 9 Cir., 247 F.2d 745, and the taking of dental impressions, People v. Allah, 84 Misc.2d 500, 376 N.Y.S.2d 399.

In People v. McLaren, supra, the Court went to some lengths, in citing Schmerber, to distinguish between physical communication and real or physical evidence. This Court can see a distinction between real evidence obtained from a defendant such as blood, dental impressions or narcotics recovered from a defendant's body and the observations of a Police Officer of the actions of a defendant responding to his instructions. The physical evidence of blood, handwriting samples and dental impressions can be brought into the Court physically and presented to a jury for their inspection or at least to a witness who could testify as to their authenticity and make comparisons. Even an individual whose identity has been determined at a Police line-up or after a requirement be made that that defendant wear certain objects of clothing to make such an identification or that a voice identification be made can all be brought to the trial and the identification can be repeated at the time of trial with an opportunity for the defendant to cross examine the witnesses making such identification.

In 45 North Carolina Law Review 34 at page 117, the writer reasons that 'The old distinction between communicative and noncommunicative incriminations has been preserved for the time being, but it will not stand indefinitely unless supported by basic principle as well as history. * * * The new principles should represent somewhat less amorphous concepts than those now current and they should much more clearly define the limits of an individual's privacy. When the day comes, necessary chemical testing of hazard-producing drivers will undoubtedly be assured--and on a more satisfactory conceptual base than exists at present. Waiting until that day comes, Schmerber now stands temporary duty at the constitutional dike.'

In Erwin's 'Defense of Drunk Driving Cases', vol. 2, page 32--15, sec. 32.02, he states, 'The physical performance test, however, is clearly distinguishable from a blood test as described by the court in that much greater participation by the motorist is required; there is not the same inevitability of results despite the...