People v. Sesman

• Decision Date: 06 November 1987
• Parties: The PEOPLE of the State of New York v. Enrique SESMAN, Defendant. .P.4
• Court: New York City Court

Page 626

521 N.Y.S.2d 626

137 Misc.2d 676

The PEOPLE of the State of New York v. Enrique SESMAN, Defendant.

Criminal Court of the City of New York,

Bronx County, Part J.P.4.

Nov. 6, 1987.

Bronx County Asst. Dist. Atty. Dennis H. Collins, for the people.

Legal Aid Society Counsel, Theodore S. Green, New York City, for defendant.

ALFRED DONATI, Jr., Judge:

Defendant Enrique Sesman is charged with driving while intoxicated [VTL § 1192(2), (3)]. Defendant moves pursuant to CPL 710.20 and 710.30 to dismiss the information on the ground that his arrest was without probable cause and in the alternative to suppress his statements and to suppress the results of his breathalyzer test.

A hearing with respect to the circumstances surrounding defendant's arrest, the taking of the statements, and the administering of the breathalyzer test was conducted before me on April 29 and May 2, 1987, at which three police officers testified. Based upon their credible testimony and the memoranda of law submitted by both parties, I make the following findings of fact and conclusions of law.

On the evening of February 13, 1987, two police officers assigned to patrol car duty with the Bronx Driving While Intoxicated Task Force observed defendant's vehicle proceeding in the opposite direction with what appeared to be a cracked windshield. For that reason the officers turned and followed defendant's vehicle in order to stop him to speak to him about the windshield. The officers were not able to catch up to defendant's vehicle for about four blocks, during which time they observed him swerving as he was driving. When defendant was stopped and questioned, he had alcohol on his breath, was unsteady on his feet, his speech was slurred and his eyes were watery and bloodshot.

The police officers asked defendant if he was drinking and if he would take a breath (alco-sensor) test; when the defendant saw the alco-sensor machine withdrawn from the officer's pocket he stated "Come on, I'm at least a 15". In fact, he registered 0.25 on the machine and was thereupon arrested.

Defendant was then taken to the 47th Precinct; enroute he was advised of his Miranda rights each of which he responded to in the affirmative. At the precinct defendant was questioned and thereafter was transported to central booking. There, with defendant's acquiescence, a breathalyzer test was administered, which registered 0.21. In the course of the entire questioning defendant admitted, among other things, that he had been drinking rum.

Based upon the record before me, defendant's Dunaway and Huntley motions are readily resolvable. It is defendant's motion to suppress the breathalyzer results which, raising an issue of apparent first impression as to the applicable burden of proof, requires in-depth analysis.

The Dunaway and Huntley Motions

On the record before me I find that the stop of defendant on February 13, 1987, was lawful; the police officers' observations as to what appeared to be a cracked windshield on defendant's automobile was sufficient basis for the police to at least pursue the vehicle to make inquiry of defendant as to the windshield. Moreover, the officers' observation of defendant's vehicle swerving as they were proceeding to catch up to that vehicle provided an additional basis for the stop. Further, the swerving motion and the police officers' observations of defendant's physical condition provided a lawful basis for their request that he take the alco-sensor test and for subsequently arresting him on a driving-while-intoxicated charge.

I find that the defendant was not in custody prior to his arrest prior to his taking that test and, accordingly, that his statement "Come on now, I'm at least a 15" did not result from custodial interrogation but, in fact, was a spontaneous declaration and thus not in derogation of defendant's Miranda rights. I find that thereafter defendant was apprised of, understood, and knowingly waived those rights prior to his making additional statements and those statements are thus also not subject to suppression. Therefore defendant's motions to dismiss or suppress based upon a lack of probable cause or upon Miranda principles, are denied. See People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975); People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 (1969); People v. Morse, 127 Misc.2d 468, 486 N.Y.S.2d 621 (County Ct. Essex Co.1985).

The Motion to Suppress the Breathalyzer Test

Vehicle and Traffic Law § 1194 provides, in pertinent part, as follows:

§ 1194, Chemical tests. 1. Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical test, of one or more of the following: his breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of his blood provided that such test is administered at the direction of a police officer:

(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two and within two hours after such person has been placed under arrest for any such violation...."

The People contend that defendant was arrested on the VTL § 1192 charges herein at 8:20 PM on the night here involved and that the breathalyzer test was administered to him at 10:19 PM, thus satisfying the 2-hour provision of VTL § 1194. In this case, whether or not two hours or less transpired between the time of defendant's arrest and the breathalyzer test turns upon the precision of the measurement of the gap between arrest and breath test, because there exists here a tolerance of only a single minute between those two events and the two hour maximum. For this reason the evidence in this hearing relevant to the establishment of the times at which these two events occurred must be very clearly examined, and that evidence then tested by the burden of proof applicable to the question of whether two hours or less transpired.

The burden of proof issue thus presented, is whether the People are obliged to prove beyond a reasonable doubt, or by some lesser measure, (e.g., a preponderance of the evidence or clear and convincing evidence), that the breathalyzer test was given within the 2 hours provided for in VTL § 1194; that issue, as previously indicated, is one of apparent first impression.

In their memorandum of law, the People also contend that defendant's "consent" to submit to the breathalyzer test frees the People entirely from the obligation of complying with the 2-hour requirement. In turn, defendant contends that his "consent" was obtained by coercion, and thus is a nullity.

The evidence relevant to the precise time of defendant's arrest was inconclusive. For example, although the arresting officer wrote 8:20 PM in his memo book as the time of arrest, he did not do so until after they arrived at the precinct. The officer explained that the time written down at the precinct was accurate because he had looked at his watch at the time of defendant's arrest. But no reason was advanced why the time was not written at the time of the arrest or at least on the ride to the precinct. One officer testified that defendant was originally "spotted" at 8:10 PM and defendant was stopped at 8:13 or 8:14 PM. One officer's record showed 8:15 PM as the time of the stop. Another officer's written records showed the time of the stop as 8:16 PM and that officer testified that the defendant "was a DWI within 1 or 2 minutes after he was pulled over". The officers also testified that the administering of the alco-sensor test to defendant at the scene took "10 to 15 seconds" to administer. The officer's written records of the time defendant was first tested at central booking originally showed 10:13 PM; this was then changed to 10:03 PM because, the officer explained, he saw the latter time on the clock when he subsequently reviewed the videotape in the case. The officer's testimony as to the length of the time for the trip from the precinct to central booking was "approximately 20 minutes"; his notes showed the trip took almost twice as long, namely, 38 minutes.

In the court's view the evidence hereinabove reviewed indicates that the various times testified to and recorded in the officer's records, including the time of arrest, were at best approximations and thus the 8:20 PM assertion by the People as the time of arrest cannot be established conclusively.

Nor, at the other end of the 2-hour spectrum, can the asserted time that defendant was given the breathalyzer test be established conclusively, for other reasons.

The videotape taken of the proceedings with defendant at central booking showed that they commenced at 10:03 PM. Prior to 10:19 PM the videotape was ended and defendant was taken to another room where the breathalyzer test was administered, not immediately, but after some preliminary activity by the testing officer. The testing officer testified that it was his "best recollection" that defendant blew into the machine at 10:19 PM but also stated that the time he remembered as the testing time was "by the clock" on the wall shown on the video tape. However, that clock, shown on the video tape played at the hearing when defendant re-entered the room after taking the test in the adjoining room showed almost 10:23 PM. The testing officer testified that the time which elapsed between the defendant's completing the test and re-entering the room with the clock was about 1 or 1 1/2 minutes. Thus defendant must have completed the breathalyzer test at approximately 10:21 PM. The evidence again was inconclusive as to the length of time which transpired between the commencement of the administration of the breathalyzer test and its completion, but in any event it appeared from the testimony that it was a relatively brief process. The court finds the test could have begun (the point at which, the test is deemed "administered", People v. Hummel, 81...