People v. White

• Decision Date: 25 July 1986
• Parties: The PEOPLE of the State of New York v. Patrick WHITE, Defendant.
• Court: New York Supreme Court

Page 815

506 N.Y.S.2d 815

133 Misc.2d 386

The PEOPLE of the State of New York v. Patrick WHITE, Defendant.

Supreme Court, Bronx County Part 24.

July 25, 1986.

Bronx County Dist. Atty. Mario Merola by Daniel Looney, New York City, for the People.

Francis Ganun, New York City, for defendant.

BERNARD FRIED, Justice:

The main issue is whether suppression is required of evidence of the amount of alcohol (0.29%) and drugs (cannabinoids and traces of cocaine) in the defendant's blood, as shown by a chemical test administered following the granting of an oral, telephonic application for a court order, where neither the applying officer nor accompanying assistant district attorney prepared a written order, to be signed by the applicant, as required by Section 1194-a(3)(d) of the Vehicle and Traffic Law.

There is virtually no dispute as to the facts: On August 7, 1985, the defendant, then a few months under twenty-one years of age, was operating a motor vehicle while intoxicated. He hit several cars, ultimately, causing the death of a seventy-four year old pedestrian. Thereafter, police officers responded to the scene and observed the defendant to be intoxicated. After defendant was placed under arrest, he was advised of his Miranda rights and transported to Montefiore Hospital where, without any questioning, he blurted out that he had had "a few drinks and some smoke". While being treated by an attending physician, in the presence of a police officer, he further stated that he had had "three drinks". Although the defendant consented to an "alcosensor" test, which showed results of 0.28%, he refused to submit to a blood test. An assistant district attorney was contacted, and came to the hospital. Thereafter, a Judge of the Criminal Court of New York City, then presiding over a nighttime arraignment part, was contacted and arrangements were made for the arresting officer to make an oral, telephonic application, as authorized by Section 1194-a. The telephone proceedings, a three-way conversation involving the officer, the assistant district attorney, and the judge, were stenographically recorded. After swearing the applicant, the judge determined that reasonable cause existed, to satisfy the requirements of the statute, and granted "the application for the issuance of a search warrant--to seize such a [blood] sample". At this point the prosecutor informed the judge that "I will instruct the officer to report to the Criminal Court as soon as this is typed--I understand it has to be filed with the Court within 24 hours." To which the judge replied "correct". The prosecutor further stated "And the officer must sign it, in addition to your Honor. I understand also that the date and time must be on it". This time the judge replied "yes".

Following this telephonic proceeding, the applying officer orally advised an officer from Highway Unit Number One, who was at the hospital, that there was authority to take the defendant's blood. The highway patrolman then "got the doctor ... [who] took the blood from" the defendant. At no time was there compliance with subparagraph (3)(d) which states: "When a judge or justice determines to issue an order to compel submission to a chemical test based on an oral application, the applicant therefor shall prepare the order in accordance with the instructions of judge or justice. In all cases the order shall include the name of the issuing judge or justice, the name of the applicant, and the date and time it was issued. It must be signed by the judge or justice if issued in person, or by the applicant if issued orally." (Emphasis added.)

At the hearing, the prosecutor who assisted in the oral application stated that she believed this requirement to be satisfied by her procedure of obtaining the signatures of both the judge and the applicant on the written transcript of the telephone proceeding, within twenty-four hours. However, this overlooks the clear and explicit statutory command of subparagraph (3)(d) that an order be prepared when the authorization is obtained, not afterwards. The People urged this position at the hearing, as well as the argument that there has been essentially a "good-faith" attempt to comply with the statute, and that all that occurred was a technical violation.

Turning first to the "good-faith" argument. It is not disputed that the assistant district attorney honestly believed that the procedure used complied with the statute. Moreover, this appears to also have been the mistaken belief of the issuing judge, who agreed with the assistant that the transcript had to be typed and signed by both the Court and the officer, within twenty-four hours. However, the "good-faith" exception, set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 has been specifically repudiated by the Court of Appeals "on State constitutional grounds". People v. Bigelow, 66 N.Y.2d 417, 427, 497 N.Y.S.2d 630, 488 N.E.2d 451 (1985), and thus the People cannot avail themselves of this theory in opposing suppression. It is necessary, therefore, to determine if the violation of the explicit command of subparagraph (3)(d) warrants suppression on statutory grounds.

Section 1194(3) of the Vehicle and Traffic Law provides that an aggrieved person may move, under Article 710 of the Criminal Procedure Law, to suppress evidence obtained under Section 1194-a "on the grounds that the order was obtained and the test administered in violation of the provisions" of that section. And predictably, Article 710 includes a similar ground for suppression of such evidence. (CPL 710.20(5). There is, of course, no requirement that the suppression may be granted only on constitutional grounds. Indeed, suppression for a statutory violation is clearly contemplated. See People v. Moselle, 57 N.Y.2d 97, 109, 454 N.Y.S.2d 292, 439 N.E.2d 1235 (1982).

In Moselle, the Court of Appeals affirmed the suppression of the results of the examination of blood samples taken without court authorization from persons who had refused to submit to such tests under VTL § 1194. It was held that Section 1194, which permitted consensual blood tests of the operator of a motor vehicle, was the exclusive authority for such tests absent a court order. Thus even though the seizure of a blood sample from a motorist without prior authorization is not necessarily required by the Fourth Amendment, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), as pointed out in the dissenting opinion of Judge Jasen, the evidence was suppressed by the Moselle Court. The Court found that the Legislature by enacting CPL § 240.40(2)(b)(v), authorizing an order for a blood sample, had preempted the area and that "[n]o room is then left for the taking of sample of blood otherwise than pursuant to a court order issued under CPL § 240.40 or a court order otherwise authorized by law (or in conformity with § 1194 [consensual test] )". ¹

As a specific response to Moselle, the Legislature enacted Section 1194-a to "permit a police officer or a district attorney to obtain a court order compelling a person to submit to a chemical test to determine the alcoholic or drug content of his blood" (Governor's Approval Memorandum, 1983 McKinney's Session Laws of New York 2776). But, besides providing specific authority for an ex parte court-ordered blood test, similar to a search warrant and not adversarial as in CPL § 240.40, the Legislature also authorized application for such order to be made "by telephone, radio or other means of electronic communication, or in person" VTL § 1194-a(3)(a). This procedure "is modelled conceptually after New York's telephonic search warrant law (c. 679, L.1982) [CPL §§ 690.25(1), 690.36,...