People v. Salazar

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER TOM
• Citation: People v. Salazar, 2013 NY Slip Op 6629, 112 A.D.3d 5, 973 N.Y.S.2d 140 (N.Y. App. Div. 2013)
• Decision Date: 10 October 2013
• Parties: The PEOPLE of the State of New York, Appellant, v. Raul SALAZAR, Defendant–Respondent.

112 A.D.3d 5

973 N.Y.S.2d 140

2013 N.Y. Slip Op. 06629

The PEOPLE of the State of New York, Appellant,

v.Raul SALAZAR, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Oct. 10, 2013.

Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for appellant.

Steven Banks, The Legal Aid Society, New York (Martin M. Lucente of counsel), for respondent.

PETER TOM, J.P., DAVID FRIEDMAN, JOHN W. SWEENY, JR. and PAUL G. FEINMAN, JJ.

SWEENY, J.

Does the failure of the police to administer a physical coordination test to a non-English speaking defendant of Hispanic origin arrested for driving while intoxicated violate equal protection and due process,where such tests are routinely administered to English-speaking defendants? For the reasons stated herein, we hold that it does not.

On June 26, 2007, at approximately 10:55 p.m., Police Officer Miguel Iglesias observed a 1992 Toyota Camry parked partially on the sidewalk facing oncoming traffic on Pugsley Avenue in the Bronx. Upon approaching the vehicle, Iglesias noticed the driver's side front tire was blown out. He saw defendant in the driver's seat, “slouched” over the steering wheel. Iglesias knocked on the driver's side window to get defendant's attention. When the door opened, Iglesias smelled a strong odor of alcohol coming from the vehicle and saw an open 40–ounce bottle of beer in the car. The keys were in the ignition, the motor was running and the dashboard lights were on. Iglesias asked defendant to step out of the car. Defendant was unable to do so by himself and had to be assisted by Iglesias. Officer Iglesias testified that defendant was unsteady on his feet, had bloodshot eyes, and appeared to be intoxicated. Iglesias asked defendant basic questions such as his name and address. Defendant began speaking in Spanish. Iglesias then asked defendant, in Spanish, if he was drunk and defendant replied, also in Spanish, “Yes, I am drunk. That's why I parked over here.” At that point, Officer Iglesias placed defendant under arrest.

Police Officer Angel Padilla responded to the scene to transport defendant to the 45th Precinct for a breathalyzer test. Padilla testified that defendant was unsteady on his feet, needed help to walk to the police van and had bloodshot eyes with dilated pupils, and that his breath smelled strongly of alcohol. After arriving at the 45th Precinct, Officer John King, the breathalyzer operator, told defendant why he was under arrest and asked if he wanted to take the breathalyzer test. Upon realizing there was a “language barrier,” King read the information and question regarding the breathalyzer test in English and then played a Spanish-language tape that repeated the information and question. After watching the tape, defendant agreed to take the test. Officer Padilla assisted Officer King in explaining to defendant in Spanish the procedure required to take the test. The test results indicated that defendant's blood alcohol content was .21, nearly three times the legal limit.

Officer King, who had been specially trained to administer the standard physical coordination test and analyze the result, testified that he did not give that test to defendant because he did not speak English. He explained that, although Officer Padilla assisted him with the breathalyzer test, he did not want Padilla to translate the coordination test instructions since “[P]art of the test is following directions. There's subtle parts of the test and I wouldn't know if the officer truly and accurately described what I was saying” or whether Padilla was “using his own words or translating exactly what I said.” Officer King also testified that the Police Department does not have a Spanish language tape of the coordination test instructions.

After a jury trial, defendant was found guilty of driving while intoxicated. Thereafter, defendant moved to set aside the verdict on the ground that the New York City Police Department policy of administering both breathalyzer and physical coordination tests to English-speaking DWI suspects while offering only the breathalyzer test to non-English speakers violated the Equal Protection and Due Process Clauses of the United States and New York Constitutions.¹

The trial court granted defendant's motion, set aside the verdict and dismissed all charges. The court found that the procedure employed by the police department created a “classification predicated upon a person's Hispanic origin and their inability to speak and/or understand the English language and therefore discriminates against primarily Spanish speaking individuals of Hispanic origin” and thus, violated the equal protection clause under either a strict or rational basis analysis.

The court also found a due process violation, finding the procedures utilized deprived defendant of his liberty interest and that this deprivation could be eliminated by “additional or substitute procedures”, i.e., by providing interpreters for non-English speaking suspects. It rejected the People's argument that such procedures would be cost prohibitive.

Much of the court's rationale is similar to its reasoning in a prior published decision ( People v. Molina, 25 Misc.3d 362, 887 N.Y.S.2d 784 [Sup.Ct., Bronx County 2009] ). We now reject that rationale and find the court erred in concluding that defendant's constitutional rights to equal protection of the law and due process were violated by the Police Department practice under consideration.

The Equal Protection Claim

Section one of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws.” The equal protection clause protects against “intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents” ( Village of Willowbrook, et al. v. Grace Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 [2000] ).Article 1, section 11 of the New York State Constitution provides New York citizens with an equivalent constitutional safeguard ( see Hernandez v. Robles, 7 N.Y.3d 338, 362, 821 N.Y.S.2d 770, 855 N.E.2d 1 [2006] ).

Claimed violations of equal protection are evaluated under either a “strict scrutiny” or “rational basis” analysis. Where governmental action disadvantages a suspect class or burdens a fundamental right, the conduct must be strictly scrutinized and will be upheld only if the government can establish a compelling justification for the action ( see Regents of the Univer. of Cal. v. Bakke, 438 U.S. 265, 299–300, 98 S.Ct. 2733, 57 L.Ed.2d 750 [1978];San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16–17, 93 S.Ct. 1278, 36 L.Ed.2d 16 [1973] ). Where a suspect class or a fundamental right is not implicated, the action need only be rationally related to a legitimate governmental purpose ( see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 [1976] ).

When these fundamental analytical principles are applied to the facts of this case, the trial court's determination that the practice at issue disadvantaged a suspect class, triggering the strict scrutiny that requires the government to establish a compelling justification for the practice ( Bakke, 438 U.S. at 299, 98 S.Ct. 2733;Rodriguez, 411 U.S. at 16–17, 93 S.Ct. 1278) cannot stand.

Although Hispanics as an ethnic group constitute a suspect class under equal protection analysis ( see Keyes v. School Dist. No. 1, 413 U.S. 189, 197, 93 S.Ct. 2686, 37 L.Ed.2d 548 [1973] ), the practice at issue here is facially neutral as to ethnicity. The policy determination as to whether or not to perform physical coordination tests is based on a suspect's ability to speak and understand English, and is not based upon race, religion or national origin. It has long been the rule that “[l]anguage, by itself, does not identify members of a suspect class” ( Soberal–Perez v. Heckler, 717 F.2d 36, 41 [2d Cir.1983],cert. denied466 U.S. 929, 104 S.Ct. 1713, 80 L.Ed.2d 186 [1984] ).

The facial neutrality of the classification however, does not prevent defendant from demonstrating intentional discrimination, either in the general policy or, as in this particular case, based on Hispanic ethnicity. “[S]uch a claim requires that a [defendant] show an intent to discriminate against the suspect class.” In order to establish intentional discrimination, defendant must show that “the decision maker ... selected or reaffirmed a particular course of action at least in part ‘because of’ not merely ‘in spite of’ its adverse effects upon an identifiable group.” ( Soberal–Perez v. Heckler, 717 F.2d at 42). Thus, while a practice that is facially neutral as to a suspect classification does not insulate it from a finding of discrimination against a suspect class, an equal protection claim can only be established by a demonstration of actual intentional discrimination. Otherwise, the claim must be evaluated under the rational basis analysis.

Significantly, there is nothing in the record to support the trial court's rejection of the police officer's explanation of the policy, as well as its conclusion that the police chose not to administer a coordination test on the basis of anti-Hispanic animus. On the contrary, the only evidence adduced here shows that non-English-speaking suspects are not offered the option of taking a physical coordination test, in order to avoid confusion and complications due to a language barrier. Other courts that have addressed this issue have accepted this rationale ( see People v. Perez, 27 Misc.3d 880, 885, 898 N.Y.S.2d 402 [Sup.Ct., Bronx County 2010];People v. Burnet, 24 Misc.3d 292, 300–301, 882 N.Y.S.2d 835 [Sup.Ct., Bronx County 2009] ) as we now do.

Accordingly, since the practice at issue does not burden a suspect class, and...