People v. Sellers
| Decision Date | 09 September 2021 |
| Docket Number | 2018-1825 N CR |
| Citation | 73 Misc.3d 5,154 N.Y.S.3d 197 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Scott SELLERS, Appellant. |
| Court | New York Supreme Court — Appellate Term |
Nassau County Legal Aid Society (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant.
Nassau County District Attorney (Autumn S. Hughes and Madeline Collins of counsel), for respondent.
PRESENT: ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, HELEN VOUTSINAS, JJ.
ORDERED that the judgments of conviction are affirmed.
Insofar as relevant to this appeal, defendant was charged, in separate misdemeanor informations, with common-law driving while intoxicated (Vehicle and Law § 1192 [3] ), aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Law § 511 [1] [a]), unlicensed operation of a motor vehicle ( Vehicle and Traffic Law § 509 [1] ), and operating a motor vehicle without two lighted rear lamps ( Vehicle and Traffic Law § 375 [2] [a] [3] ).
At a pretrial suppression hearing, the arresting officer testified that, on May 21, 2016 at approximately 4:00 a.m., she was driving behind defendant and observed that defendant's vehicle had no rear tail lights illuminated. The officer effected a traffic stop and observed that defendant appeared intoxicated in that there was a smell of alcohol on his breath, his eyes were glassy, red, bloodshot, and droopy, and his speech was slurred. Defendant admitted he was coming from a nightclub, where he had a couple of drinks. When he exited his vehicle, defendant was unsteady on his feet, and he failed each of several field sobriety tests. Defendant was arrested and transported to the central testing unit, where the arresting officer read the standard refusal warnings to him. The arresting officer then asked defendant two separate times if he would consent to a chemical analysis of his breath. After the first warning, defendant said, "no," but refused to provide his signature to that effect. After the second request, defendant refused to provide any response, placing his fingers in his ears and humming. At one point, defendant asked to make a phone call to a friend or sibling so that they could contact an attorney for him. Defendant subsequently made the phone call. Thereafter, on video, another officer read the refusal warnings to defendant five different times. Defendant refused to provide any response, again putting his fingers in his ears and humming while that officer read the refusal warnings. The second officer testified that he also had defendant perform several field sobriety tests and that defendant exhibited six clues of intoxication.
The hearing court (Scott H. Siller, J.) denied defendant's motion to suppress evidence of his refusal to submit to a breath test. Following a jury trial, defendant was found guilty of all of the aforementioned charges.
On appeal, defendant contends that his conviction of common-law driving while intoxicated should be reversed because the evidence of his refusal to take a breath test should have been suppressed, and because the evidence of his guilt was legally insufficient and the verdict was against the weight of the evidence; that the evidence was legally insufficient to convict him of operating a motor vehicle without two lighted rear lamps and the verdict was against the weight of the evidence; and that the cumulative errors of the District Court deprived him of a fair trial.
Vehicle and Traffic Law § 1194 "grants a motorist a qualified right to decline to voluntarily take a chemical test with the understanding that such a refusal will result in the immediate suspension and ultimate revocation of the motorist's driver license for a period of one year" ( People v. Patel , 169 A.D.3d 935, 936, 92 N.Y.S.3d 671 [2019] ; see Vehicle and Traffic Law § 1194 [2] [d] ; People v. Smith , 18 N.Y.3d 544, 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ). The statute further provides that, when a motorist refuses to submit to a chemical test, evidence of such refusal "shall be admissible in any trial, proceeding or hearing" based upon a violation of Vehicle and Traffic Law § 1192, "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" ( Vehicle and Traffic Law § 1194 [2] [f] ; see People v. Smith , 18 N.Y.3d at 548-549, 942 N.Y.S.2d 426, 965 N.E.2d 928 ; People v. Patel , 169 A.D.3d at 936, 92 N.Y.S.3d 671 ; People v. Sirico , 135 A.D.3d 19, 23, 18 N.Y.S.3d 430 [2015] ; People v. Enriquez , 69 Misc. 3d 127[A], 2020 N.Y. Slip Op. 51123[U], 2020 WL 5884347 [App Term, 2d Dept, 9th & 10th Jud Dists 2020]). "All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal" ( People v. Smith , 18 N.Y.3d at 551, 942 N.Y.S.2d 426, 965 N.E.2d 928 ). Moreover, a person arrested for driving while intoxicated has the right to consult an attorney before deciding whether to consent to a chemical test only if the person makes a specific request for the assistance of counsel (see People v. Shaw , 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650 [1988] ; People v. Gursey , 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351 [1968] ); "generalized requests for an attorney are insufficient to invoke the limited or qualified right" ( People v. Washington , 107 A.D.3d 4, 9, 964 N.Y.S.2d 176 [2013], affd 23 N.Y.3d 228, 989 N.Y.S.2d 670, 12 N.E.3d 1099 [2014] ).
Here, the evidence established that defendant requested and was given an opportunity to call a friend or sibling, and indicated on the refusal video that he called an individual so that they could reach an attorney for him. Notably, defendant never stated that he wanted to speak with an attorney, nor did he express a desire to consult with an attorney on the refusal video. Defendant was provided with the refusal warnings multiple times. Defendant's statement to the police that he wanted to make a phone call to a friend or sibling to get in touch with an attorney was insufficient to invoke his right to counsel (see People v. Hartley , 65 N.Y.2d 703, 705, 492 N.Y.S.2d 1, 481 N.E.2d 541 [1985] ; People v. Rowell , 59 N.Y.2d 727, 730, 463 N.Y.S.2d 426, 450 N.E.2d 232 [1983] ), as it did not unequivocally inform the officers of his intention to retain counsel, or that he wanted the opportunity to consult with an attorney before speaking further to the police or undertaking the breath test (cf. People v. Smith , 18 N.Y.3d 544, 547, 942 N.Y.S.2d 426, 965 N.E.2d 928 ; People v. Gursey , 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351 ). In any event, "there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing" ( People v. Smith , 18 N.Y.3d at 549, 942 N.Y.S.2d 426, 965 N.E.2d 928 ). We find that a reasonable motorist in defendant's position would have understood that his final response to the second officer's request would be interpreted by the officer as a binding refusal to submit to a chemical test (see People v. Warren , 160 A.D.3d 1132, 1136-1137, 75 N.Y.S.3d 611 [2018] ; cf. People v. Smith , 18 N.Y.3d at 551, 942 N.Y.S.2d 426, 965 N.E.2d 928 ; see People v. Enriquez , 69 Misc. 3d 127[A], 2020 N.Y. Slip Op. 51123[U], 2020 WL 5884347 ). Consequently, the District Court...
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