People v. White
| Decision Date | 31 October 2014 |
| Docket Number | No. 1785–2013.,1785–2013. |
| Citation | 3 N.Y.S.3d 286 (Table) |
| Parties | The PEOPLE of the State of New York, v. Lawrence WHITE, Defendant. |
| Court | New York Supreme Court |
Kalle Condliffe, Esq., The Legal Aid Society, Justin Daly, Assistant District Attorney, Office of the Bronx District Attorney.
Defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[2] and [3 ], both as “E” felonies, two counts of aggravated unlicensed operation of a motor vehicle in the first degree (VTL 511[3][a][i] ) and other related charges. Defendant moved for suppression of physical evidence recovered from his vehicle, the results of the chemical blood-alcohol breath test, and statements made by him to the arresting officer on the basis that they were unlawfully obtained in violation of the Fourth Amendment of the United States Constitution and article I, § 12, of the New York State Constitution, claiming they were improper and fruits of an unlawful arrest. Specifically, the defendant contends that: (1) his arrest was not supported by the requisite probable cause; (2) there was an insufficient basis to request he submit to a chemical breath test; (3) the results of the Intoxilyzer must be suppressed as a violation of VTL 1194(2)(a) ; (4) the search of his vehicle and recovery of a bottle of alcohol was unlawful; (5) his statements were the product of a custodial interrogation obtained without Miranda warnings.
The District Attorney contends that the defendant's arrest was based upon sufficient probable cause, that there was a legally sufficient basis upon which to administer the Intoxilyzer test, that it was administered in accordance with VTL 1194(2)(a), that the search of defendant's vehicle was proper, and that any statements made in connection with his arrest were not subject to the Miranda requirement.
On October 22, 2014, this court conducted a combined Mapp/Huntley/Dunaway hearing.1 The People called one witnesses: Police Officer Fredery Alvarez (PO Alvarez), assigned to the 50 Precinct. Upon the close of testimony, this court adjourned the matter until October 23, 2014, at which time oral argument was heard from both the defendant and the People. This court finds the testimony of PO Alvarez credible to the extent indicated herein. The defendant did not call any witnesses.
Based upon the evidence presented, and the parties' arguments, this court finds that: (1) defendant's arrest was supported by probable cause; (2) there was a reasonable basis to request he submit to a chemical blood-alcohol breath test; (3) the Intoxilyzer test was administered in compliance with VTL 1194(2)(a) ; (4) the People failed to satisfy their burden of establishing that the recovery of a bottle of E & J alcohol from his vehicle was lawful; and, (4) defendant' statement, “I had a few sips,” was the product of the unlawful search and obtained pursuant to a custodial interrogation absent the requisite Miranda waiver.
May 3, 2013, PO Alvarez, and his partner, PO Reyes, assigned to the 42 Precinct Bronx Impact Response Team, were dressed in full uniform and on routine patrol in a marked police vehicle (H.4). At approximately 10:13 p.m., POs Alvarez and Reyes were in the vicinity of Freeman Street and Southern Boulevard in Bronx County when PO Alvarez observed the defendant driving a Black, 2010 Chrysler with “heavily tinted windows” travelling westbound on Freeman Avenue. PO Alvarez, who was driving, testified that he followed the defendant's vehicle, stopping him approximately three blocks later on Freeman Avenue and Chisholm Street (H.6).
PO Alvarez testified that after pulling over the defendant, he approached the vehicle on the driver's side while PO Reyes approached on the passenger's side. PO Alvarez stated that upon approaching the vehicle, he asked the defendant for his license and registration. Unable to produce them, the defendant, who was alone in the vehicle, replied, “I am suspended” (H.7). PO Alvarez stated at that point he smelled the odor of alcohol emanating from the defendant's breath, and observed him to have “red ... bloodshot, watery eyes, [and] slurred speech.” PO Alvarez testified he then ordered the defendant out of the car, and instructed him to stand at the rear of the vehicle. Upon PO Alvarez's request for identification, the defendant produced an EBT benefit card bearing his photograph and date of birth. PO Alvarez then verified that the defendant's license had in fact been suspended (H.6).
At this point, according to PO Alvarez, PO Reyes recovered a bottle of E & J alcohol from inside the defendant's vehicle whereupon PO Alvarez asked the defendant if he had been drinking, to which the defendant replied, “I had a few sips” (H.7). PO Alvarez then asked the defendant whether he had been previously arrested for DWI, to which the defendant responded in the affirmative. PO Alvarez then tested the window tinting of the defendant's vehicle with a tint meter. The result was that it permitted only 27% light to pass through, which was well below the legal limit (H.8). PO Alvarez stated that he issued the defendant a summons for the illegal tinting. Sergeant Alston, who had arrived at the location, administered a Portable Breathalyzer Test (PBT) to the defendant (H.7, 13). The defendant blew a .10, was placed under arrest for operating a motor vehicle while under the influence of alcohol (H.9).
The defendant was subsequently transported to the 45 Precinct for the purpose of administering an Intoxilyzer breath test. PO Alvarez further verified that the defendant's license was indeed suspended, and Sergeant Alston administered the Intoxilyzer breath test; the defendant blew a .09 (H.9–10). PO Alvarez then transported the defendant to the 42 Precinct for arrest processing (H.11).
CPL 140.10(1)(b) provides, “[s]ubject to the provisions of subsection two, a police officer may arrest a person for: A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” Probable cause, or reasonable cause, does not require proof “sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed ... The legal conclusion is to be made after considering all of the facts and circumstances together” (People v. Bigelow, 66 N.Y.2d 417, 423 [1985], quoting People v. McRay, 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015 ; see also People v. Maldonado, 86 N.Y.2d 631, 635 [1995] ).
At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of the police conduct (People v. Baldwin, 25 N.Y.2d 66 [1969] ; People v. Malinsky, 15 N.Y.2d 86 [1965] ). The People must, therefore, demonstrate that the police acted with probable cause when they arrested the defendant (People v. Bouton, 28 N.Y.2d 130 [1980]; People v. Berrios, 28 N.Y.2d 361 [1974] ). Once this burden has been met, the defendant is responsible for proving the conduct was illegal (Berrios, 28 N.Y.2d at 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 ; Baldwin, 25 N.Y.2d at 66, 302 N.Y.S.2d 571, 250 N.E.2d 62 ). Evidence obtained by an unconstitutional search is inadmissible and vitiates conviction (see Mapp v. Ohio, 367 U.S. 643 [1961] ).
In sustaining their burden, the People must demonstrate that the circumstances authorized the officer's behavior. In assessing the scope of intrusion permissible under a given set of circumstances, the New York Constitution contemplates weighing the officer's safety and the public interest against the individual's personal liberty (People v. De Bour, 40 N.Y.2d 210 [1976] [] ). In contrast to the Federal Constitution's emphasis on officer safety in search and seizure matters, the New York Constitution affords greater protection to an individual's privacy (see Peter Preiser, 2010 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 140.50 ). Accordingly, New York has adopted standards considerably more protective of individual liberty than federal precedent mandates (id. ).
De Bour establishes the basic framework for measuring the intrusiveness of a police action in New York (id. ). The first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so (id. at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The second level, the common-law right of inquiry, permits a momentary stop when there is a “founded suspicion that criminal activity is afoot” (id. ). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor (id. ). Finally, an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime (id. ).
Regarding automobile stops, the police must possess an articulable basis for requesting information from occupants of a vehicle that has been approached but not seized (People v. Ocasio, 85 N.Y.2d 982 [1995] ). In other words, there must be an objective, credible reason not necessarily indicative of criminality (id. ). Initial questioning, limited to a request for identification, is consistent with a request for information (People v. Hollman, 79 N.Y.2d 181, 185, 191 [1992] ). Therefore, an officer's demand for a license constitutes a level-one request for information (People v. Thomas, 19 A.D.3d 32, 792 N.Y.S.2d 472 [1st Dept 2005] ).
Here, the People presented sufficient evidence that the approach of the defendant was proper based upon the observations of PO Alvarez. He observed the...
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