People v. Washington

• Decision Date: 17 April 2013
• Citation: 2013 N.Y. Slip Op. 02600,964 N.Y.S.2d 176,107 A.D.3d 4
• Parties: The PEOPLE, etc., appellant, v. Jonai WASHINGTON, respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 4
964 N.Y.S.2d 176
2013 N.Y. Slip Op. 02600

The PEOPLE, etc., appellant,
v.
Jonai WASHINGTON, respondent.

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

April 17, 2013.

[964 N.Y.S.2d 179]

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Yael V. Levy of counsel), for appellant.

Frederick K. Brewington, Hempstead, N.Y. (Valerie Cartright of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.

LEVENTHAL, J.

[107 A.D.3d 5]This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution ( seeN.Y. Const., art. I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. For the reasons which follow, we hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel's appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney's appearance would, in fact, have interfered with the [107 A.D.3d 6]timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test.

Following a collision between the defendant's vehicle and a pedestrian in Nassau County, the defendant was charged with manslaughter in the second degree ( seePenal Law § 125.15[1] ), vehicular manslaughter in the second degree ( seePenal Law § 125.12[1] ), and two counts of operating a motor vehicle while under the influence of alcohol ( seeVehicle and Traffic Law § 1192[2], [3] ).

At a suppression hearing, evidence was adduced demonstrating that, on August 30, 2010, at approximately 2:05 a.m., Nassau County Police Officers responded to the scene of a motor vehicle accident. At the scene, the officers observed the defendant standing beside the door of her vehicle crying and speaking on her cell phone. The defendant's vehicle had a dented hood and a crushed windshield. Between 50 to 70 feet away from the defendant's car lay an injured pedestrian. The pedestrian subsequently died from his injuries. The defendant appeared intoxicated and, after the officers conducted various field sobriety tests, they placed the defendant under

[964 N.Y.S.2d 180]

arrest at 2:40 a.m. and transported her to the Central Testing Section at Nassau County police headquarters. When the defendant's family learned of the accident and her arrest, they immediately contacted an attorney and arranged for him to represent the defendant.

At police headquarters, the police requested that the defendant submit to a chemical breath test. The People submitted into evidence a consent form initialed by a police officer and signed by the defendant wherein the defendant agreed to submit to the chemical breath test at 3:30 a.m. The parties stipulated that at 3:39 a.m. the defendant's breath was drawn.

Anthony Mayol, the attorney retained by the defendant's family, testified on her behalf. According to telephone records submitted into evidence by the People, at 3:31 a.m., Mayol called and spoke to a police dispatcher at Nassau County Police headquarters, and was transferred to “Detention” at 3:32 a.m. This telephone call lasted a total of nine minutes and two seconds. Mayol testified that during this phone call with Detention, he informed the police that he represented the defendant and stated, “You have to stop all questioning and we're not consenting to any form of testing whatsoever.” Mayol's cell phone records show that he remained on the line with the police until [107 A.D.3d 7]3:39 a.m., the time that the defendant's breath was drawn. Mayol testified that he was told that someone from the precinct would call him back.

The People did not offer any testimony from the police officer who spoke with Mayol during the initial phone call. According to the prosecutor, that individual had no recollection of the relevant facts.

At 4:33 a.m., after Mayol did not receive a return call from the police, he telephoned police headquarters a second time. According to Mayol, he asked to speak directly to the defendant, but he could not recall whether he made this request during the first or second call; he testified, “I almost want to say it was the first time, but I couldn't tell you for certain it was the first time. It was one of the two times that I definitely asked to speak to her.” The police did not permit Mayol to speak with the defendant.

During the colloquy at the suppression hearing, the hearing court indicated that the “main cases” it was interested in were People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351 and People v. Garofolo, 46 N.Y.2d 592, 415 N.Y.S.2d 810, 389 N.E.2d 123. In response to an argument raised by the prosecutor that “it would [have been] impossible for anyone to run out and cut the test off, tell [the defendant] to stop providing a sample,” the court stated that the People failed to adduce any testimony to establish that alleged fact. The court also stated that “[t]here was a denial of access to [sic] the lawyer to his client by the police department. That is proven beyond a reasonable doubt.” In an order dated July 29, 2011, the hearing court granted that branch of the defendant's omnibus motion which was to suppress the results of the chemical breath test. The People appeal ( seeCPL 450.20, 450.50). ¹

On appeal, the People assert that the branch of the defendant's omnibus motion which was to suppress the results of the chemical breath test should have been denied because the defendant failed to invoke

[964 N.Y.S.2d 181]

her limited right to counsel prior to consenting to the chemical breath test. The People argue that a defendant's attorney cannot direct that tests should not be administered unless the client confirms the directive. The [107 A.D.3d 8]People also contend that the defendant failed to establish that her counsel actually requested to speak with her when he called the police prior to the administration of the test. The People further argue that Mayol's 3:31 a.m. call was too late to stop the test, which was commenced at 3:39 a.m. when the defendant's breath was drawn.

“Chemical breath tests to determine blood alcohol content ... are an important investigative tool used by law enforcement in the effort to combat driving while intoxicated and related offenses” ( People v. Smith, 18 N.Y.3d 544, 548, 942 N.Y.S.2d 426, 965 N.E.2d 928). “Every person who operates a motor vehicle in this state shall be deemed to have given consent” to, among other things, a chemical breath test to determine the alcoholic content of their blood, within certain time limits after being arrested for driving under the influence of alcohol (Vehicle and Traffic Law § 1194[2] ). Vehicle and Traffic Law § 1194 sets forth the standards governing the administration of chemical breath tests, and provides that if a motorist refuses a test the motorist's driver's license will be immediately suspended and thereafter revoked for one year. A motorist's failure to submit to a chemical test is admissible as evidence at trial ( seeVehicle and Traffic Law § 1194[2] [f] ). “[T]o maximize the probative value of BAC evidence, the police endeavor to administer chemical tests as close in time as possible to the motor vehicle infraction, typically within two hours of an arrest” ( People v. Smith, 18 N.Y.3d at 548, 942 N.Y.S.2d 426, 965 N.E.2d 928).

Notably, a motorist does not have a constitutional right to refuse to consent to a chemical breath test ( see People v. Smith, 18 N.Y.3d at 548, 942 N.Y.S.2d 426, 965 N.E.2d 928;People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650;People v. Thomas, 46 N.Y.2d 100, 108, 412 N.Y.S.2d 845, 385 N.E.2d 584,appeal dismissed444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127). Moreover, the statutory right to refuse a test may be waived without an attorney's assistance ( seeVehicle and Traffic Law § 1194[2]; People v. Shaw, 72 N.Y.2d at 1033, 534 N.Y.S.2d 929, 531 N.E.2d 650). Further, “Vehicle and Traffic Law § 1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing” ( People v. Smith, 18 N.Y.3d at 549, 942 N.Y.S.2d 426, 965 N.E.2d 928). Nevertheless, if a motorist is arrested for driving while intoxicated, the Court of Appeals has recognized “a limited right to counsel associated with the criminal proceeding” ( id.).

Possessing a “limited right to counsel” means that where a defendant is arrested for driving while under the influence of alcohol and asks to contact an attorney before responding to a request to take a chemical test, the police “may not, without [107 A.D.3d 9]justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand” ( People v. Gursey, 22 N.Y.2d 224, 227, 292 N.Y.S.2d 416, 239 N.E.2d 351). If such a request is made, and it is feasible for the police to allow a defendant to attempt to reach counsel without unduly delaying administration of the chemical test, a defendant should be afforded such an opportunity. The request to speak with an attorney must be specific; generalized requests

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for an attorney are insufficient to invoke the limited or qualified right ( see People v. Curkendall, 12 A.D.3d 710, 715, 783 N.Y.S.2d 707;People v. Hart, 191 A.D.2d 991, 594 N.Y.S.2d 942;cf. People v. DePonceau, 275 A.D.2d 994, 715 N.Y.S.2d 197). Furthermore, the right to consult...