People v. Thomas

• Decision Date: 07 December 1978
• Citation: 46 N.Y.2d 100,385 N.E.2d 584,412 N.Y.S.2d 845
• Parties: , 385 N.E.2d 584 The PEOPLE of the State of New York, Appellant, v. Herman THOMAS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 845

412 N.Y.S.2d 845

46 N.Y.2d 100, 385 N.E.2d 584

The PEOPLE of the State of New York, Appellant, v. Herman THOMAS, Respondent.

Court of Appeals of New York.

Dec. 7, 1978.

Mario Merola, Dist. Atty. (Alan D. Marrus, New York City, of counsel), for appellant

Bertrand J. Kahn and William E. Hellerstein, New York City, for respondent.

OPINION OF THE COURT

JONES, Judge.

We uphold the constitutionality of subdivision 4 of section 1194 of the Vehicle and Traffic Law which provides that evidence of a defendant's refusal to submit to a chemical test to determine the alcoholic content of his blood shall be admissible in any trial based on a violation of section 1192 of the Vehicle and Traffic Law, provided he was given sufficient warning, in clear and unequivocal language, of the effect of such refusal. The introduction of such evidence in accordance with this statute does not violate the defendant's privilege against self incrimination under either the Federal or the State Constitution.

After a passing motorist had stopped them to report a serious accident, New York City Police Officers Mosiello and Spaulding proceeded immediately to the scene and found an automobile with its engine still running rammed into a fence separating the Major Deegan Expressway from the adjoining street. Defendant, alone in the front seat, was slumped over and bleeding profusely from the head. After calling for an ambulance the officers left their police car, walked over to the automobile and asked defendant who was fully awake what had happened. Both officers detected a heavy odor of alcohol on defendant's breath and observed two bottles of wine, one full, the other more than half empty, on the floor by the front seat. The officers helped defendant out of his car and, no ambulance having arrived, took him to the hospital in their patrol car. It was clear to both officers, who together had effected 25 arrests for driving while intoxicated, that defendant was then in that condition.

While awaiting medical treatment in the emergency room, defendant was asked for his driver's license and automobile registration. After some difficulty he produced his driver's license from his wallet but refused to part with his registration, at which point Officer Mosiello took his wallet from him, opened it and in addition to the registration found several betting slips.

When Police Officer Haverlin, assigned to the Intoxicated Drivers Testing Unit, arrived at the hospital to administer a blood test to determine the extent of defendant's inebriation, he informed defendant of his rights and warned him that refusal to take the blood test might result in the revocation of his driver's license. When defendant refused to take the test he was further advised that pursuant to law his refusal to take the test could be introduced into evidence in court. Because of defendant's continued refusal no test was administered (Vehicle and Traffic Law, § 1194, subd. 2).

Defendant was thereafter charged with possession of gambling records in the second degree, promoting gambling in the second degree, and driving while intoxicated. After a pretrial hearing defendant's motion to suppress the betting slips taken from his wallet was denied. At the trial the People were permitted, over objection, to introduce evidence of defendant's refusal to submit to the chemical test to determine the alcoholic content of his blood. On the People's case defense counsel sought to cross-examine the two arresting officers as to their knowledge at the time of the arrest of a civilian complaint which had previously been filed by defendant against a fellow officer. The prosecutor's objection to such cross-examination was sustained. When defendant took the stand later in the trial he testified that one of the officers told him that the officer knew about the complaint and that the policeman against whom the complaint had been lodged would give the arresting officer a medal when he heard about defendant's arrest. The prosecutor's objection to this testimony was sustained.

At the conclusion of the evidence the jury was charged, Inter alia, that it could consider the evidence of defendant's refusal to submit to the chemical test of his blood. Defense counsel's request that such evidence could not be considered was denied. The trial court also submitted the charge of driving while impaired as a lesser included offense of driving while intoxicated. The jury acquitted defendant of the charges of promoting gambling and of driving while intoxicated, but found him guilty of possession of gambling records and of driving while impaired.

The Appellate Term reversed the judgment of conviction on both charges and ordered a new trial, holding that the exclusion of the circumstantial evidence of hostility of the arresting officers was reversible error and that the introduction of the evidence of defendant's refusal to submit to a chemical test to determine the alcoholic content of his blood (as provided for by Vehicle and Traffic Law, § 1194, subd. 4) violated his constitutional privilege against self incrimination. Leave was granted the People to appeal to our court, and we now reverse the order of Appellate Term and remit the case to that court for determination of the facts. (CPL 470.40, subd. 2, par. (b).)

With reference to the exclusion of the evidence offered in this case on the issue of hostility of the arresting officer witnesses, it is recognized as a general proposition that as to any witness "hostility to the party against whom he testifies, may be shown to affect his credibility" (Richardson, Evidence (10th ed.), § 503, pp. 490-491). The evidence sought to be introduced for that purpose in this instance, however, was remote; it was not evidence that defendant had made a complaint against the witness himself which, because of the normal reaction to the filing of a complaint, would have permitted an inference of personal hostility on the part of the witness who was testifying. Here the inference of hostility which defendant would have hoped that the jury might draw would have been because the action was taken against a fellow police officer, a significant step removed. Other than that they were members of the same police department and that the witness knew the other officer and had worked with him on one or two occasions, the nature or quality of the relationship between the witness and the officer against whom the complaint had been lodged was never established. Nor was any tender made to show the character or seriousness of the complaint, or whether it was warranted or could reasonably have been viewed as an unjustified attack on a public servant. Importing, as the admission of the evidence in this case would have, consideration by the jury of these collateral issues, it should be left to the sound discretion of the trial court whether to admit or to exclude as too remote the evidence of hostility. (3A Wigmore, Evidence (Chadbourn rev. 1970), § 949). We cannot conclude that the exclusion in this instance, in which the weighing of remoteness under all the circumstances was critical, was erroneous as a matter of law, although in most instances, at least where the hostility-provoking circumstance or action involves the witness himself, such factors are properly classified as going to probative worth rather than admissibility.

In consideration of defendant's attack on the constitutionality of subdivision 4 of section 1194 of the Vehicle and Traffic Law, we start with the decision of the Supreme Court of the United States in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 in which that court held that withdrawal of blood from the human body for chemical analysis, although compelled, does not constitute evidence of a testimonial or communicative nature and does not, therefore, violate the Fifth Amendment privilege against self incrimination (cf. People v. Craft, 28 N.Y.2d 274, 321 N.Y.S.2d 566, 270 N.E.2d 297). It follows from this holding that, inasmuch as a defendant can constitutionally be compelled to take such a test, he has no constitutional right not to take one.

The precise question before us is whether testimony may be admitted to establish that in fact this defendant refused to take the blood test, an issue expressly left open in Schmerber because it had not been preserved for review in that case (384 U.S., at pp. 765-766, n. 9, 86 S.Ct. 1826). Realistically analyzed such testimony is relevant only in consequence of the inference it permits that defendant refused to take the test because of his apprehension as to whether he would pass it. To this extent the evidence may be characterized as "communicative or testimonial" rather than "real or physical" evidence or descriptive of an existing physical characteristic. But our inquiry does not end there. For example, evidence of flight of a defendant is admissible without question, yet the objective of offering such evidence is not to describe the geographical course the defendant followed in the particular instance or the manner in which he followed it (both of which would be irrelevant), but to permit the inference of a consciousness of guilt on his part.

Several courts which have confronted the issue have held that, inasmuch as the defendant has no constitutional right to refuse to take the test, the privilege against self incrimination is not applicable (People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401; State v. Holt, 261 Iowa 1089, 156 N.W.2d 884; City of Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40; State v. Miller, 257 S.C. 213; State v. Smith, 230 S.C. 164, 94 S.E.2d 886; cf. People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393; People v. Taylor, 73 Mich.App. 139, 250 N.W.2d 570).

We think the rationale should be stated more broadly. Although the evidence of the defendant's refusal to take the test be classified as communicative or testimonial (and in our view...