People v. Walters

Papers Submitted:Notice of Motion  1Affirmation in Support         2Affirmation in Opposition    3Memorandum of Law in Opposition     4DECISION and ORDER  The Defendant is charged with driving while intoxicated per se and driving while intoxicated at common law, in violation of VTL §§1192(2) and 1192(3), respectively. The Defendant now moves for an order (1) precluding and/or suppress trial testimony concerning all statements attributed to the Defendant, a sample of blood drawn from the Defendant and the results of an analysis of that blood, any physical evidence attributed to and/or seized from the Defendant, or, in the alternative, directing that an Mapp/Dunaway/Huntley¹ hearing be held; (2) dismissing the entire docket; (3) restraining the People from cross-examining the Defendant, or introducing evidence on their direct case, concerning Defendant’s prior convictions and their underlying acts or any other prior bad acts, and directing the People to disclose same, or, in the alternative, directing that a Sandoval² hearing be held; (4) directing the People to provide the Defendant with all exculpatory evidence; and, (5) permitting the Defendant to make additional pre-trial motions.With the exception of consenting to a hearing concerning the voluntariness of any statements attributed to the Defendant, and a Sandoval hearing, the People oppose the Defendant’s motion.SUPPRESSIONNo Warrant or Consent for Chemical Blood TestThe Defendant’s initial argument, that the blood sample drawn from the Defendant and the results of an analysis of that blood must be suppressed because the blood was drawn in the absence of the Defendant’s consent and without a warrant authorizing the blood draw, is without merit.In Missouri v. McNeely, 569 U.S. 141, 148, 133 S.Ct. 1552, 1558 (2013), the court reiterated its prior holdings:…that a warrantless search of the person is reasonable only if it falls within a recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).In discussing one of those “recognized exceptions,” the court, id. at 161, 133 S.Ct. 1552, 1558 (2013), noted that:States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 1556 (describing Missouri’s implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173-175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563-564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination).The State of New York has enacted such an implied consent law, See: VTL §1194(2)(a) and (b)(1). See: People v. Goodell, 79 N.Y.2d 869, 581 N.Y.S.2d 157 (1992); People v. Hall, 61 N.Y.2d 834, 473 N.Y.S.2d 959 (1984) [blood draw of unconscious subject, within two hours of arrest, valid pursuant to implied consent provisions of VTL§1194] New York’s implied consent statute does not run afoul of the Supreme Court’s later warrant decision in Birchfield v. North Dakota, 579 U.S._, 136 S.Ct.2160, 2185 (2016), which found that it was unconstitutional to criminalize a subject’s refusal to submit to a requested chemical blood test, while recognizing that their “prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply…and nothing we say here should be read to cast doubt on them.” See: People v. Vital, 54 Misc.3d 1209(A), 52 N.Y.S.23 248 (Crim. Ct. N.Y. Co. 2017)This issue of “implied consent” notwithstanding, the Defendant herein does not allege that he refused the request to submit to a chemical blood test. Moreover, the Defendant does not dispute the People’s representation and documentation that when asked to submit to the requested chemical blood test the Defendant both stated “Yes” and wrote the word “Yes” on the consent form before signing same. The Defendant, instead, creatively argues that a person who “is in custody at the time the officer asks for consent to search is not capable of giving informed, voluntary, intelligent, or knowing waiver of the right to insist on a search warrant as a condition precedent to any search.” (Sachs Affirmation 3/27/18 p.3)The problem with this argument of the Defendant’s is four fold. First, as discussed hereinabove, there is no warrant requirement under the circumstances presented. Second, the Defendant’s argument is completely contrary to the “implied-consent” provisions of VTL §1194 discussed hereinabove. Third, while the Defendant clearly had a right to refuse the requested chemical test, “there is no obligation that a defendant be so advised, and the absence of such an advisement does not negate consent otherwise freely given (citation omitted).” People v. Marietta, 61 A.D.3d 997, 998, 879 N.Y.S.2d 476 (2nd Dept. 2009) Fourth, the Defendant agreed to submit to the chemical blood test requested by Officer Jacobsen.No Probable Cause for Arrest and Involuntariness of StatementsCPL §710.60 provides, in pertinent part, upon the Defendant’s having made a motion to suppress:2. The court must summarily grant the motion if:(a) The motion papers comply with the requirements of subdivision one and the people concede the truth of allegations of fact therein which support the motion; or(b) The people stipulate that the evidence sought to be suppressed will not be offered in evidence in any criminal action or proceeding against the defendant.3. The court may summarily deny the motion if:(a) The motion papers do not allege a ground constituting legal basis for the motion; or(b) The sworn allegations of fact do not as a matter of law support the ground alleged; except that this paragraph does not apply where the motion is based upon the ground specified in subdivision three or six of section 710.20.4. If the court does not determine the motion pursuant to subdivisions two or three, it must conduct a hearing and make findings of fact essential to the determination thereof.Mindful of these statutory provisions, in People v. Mendoza, 82 N.Y.2d 415, 422, 604 N.Y.S.2d 922, 924 (1993) the Court of Appeals noted that “[h]earings are not automatically or generally available for the asking by boilerplate allegations.” Quoting their own decision in People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704 (1977), the court reiterated that “[i]t is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue (citation omitted).” People v. Mendoza, supra. at 426, 604 N.Y.S.2d 922, 926 (1993) Clearly, the disputed issues of fact must be material and necessary to resolve before the legal issues raised can be decided. If they are not a hearing becomes unnecessary.The Mendoza, id. court then set out guidelines to be used by the court in evaluating whether or not a defendant’s factual allegations are sufficient to warrant a hearing. These allegations should be evaluated “(1) in the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information.” People v. Mendoza, id. at 426, 604 N.Y.S.2d 922, 926 (1993)The People allege, inter alia, that the Defendant was found by the arresting officer sitting behind the steering wheel of his motor vehicle, with the keys in the ignition and the engine still running, having struck two parked vehicles. The People further allege that the arresting officer observed the Defendant to have bloodshot watery eyes and slurred speech; that the Defendant admitted to having consumed alcohol; and, that the results of a preliminary breath test administered to the Defendant at the scene was positive for the presence of alcohol, with a blood alcohol content of .18 percent. While the Defendant alleges that “The driver did not indicate he had been drinking[,]” (Sachs Affirmation 3/27/18 p.13) he does not provide any allegations of fact refuting the People’s allegations, other than to suggest that the observations made by the arresting officer could have been the result of “ head trauma, the deployment of airbags or even lack of sleep.” (Sachs Affirmation 3/27/18 p. 13) While he makes these hypothetical suggestions, the Defendant does not actually allege that he sustained a head trauma, was affected by deployed air bags or lacked sleep.Moreover, “in making the determination to arrest, an arresting officer is not obligated to eliminate all possible innocent explanations for incriminating facts (citations omitted).” People v. Maher, 52 Misc.3d 136(A), 41 N.Y.S.3d 720 (App. Term 9th & 10th Jud. Dist. 2016) “The only valid inquiry on this issue is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor.” People v. Farrell, 89 A.D.2d 987, 988, 454 N.Y.S.2d 306, 307 (2nd Dept. 1982) In the matter sub judice, the uncontroverted allegations of the People establish the existence of probable cause to arrest the Defendant for a violation of VTL §1192. See: People v. Tieman, 112 A.D.3d 975, 978 N.Y.S.2d 67 (2nd Dept. 2013) [evidence of glassy eyes, slurred speech, the odor of an alcoholic beverage and erratic driving established probable cause]; People v. Gingras, 22 Misc.3d 22, 871 N.Y.S.2d 812 (App. Term 9th & 10th Judicial Dists. 2008) [a motor vehicle accident, admission to having operated the vehicle, slurred speech, bloodshot eyes and the odor of an alcoholic beverage provided probable cause to arrest]; People v. Blajeski, 125 A.D.2d 582, 509 N.Y.S.2d 648 (2nd Dept. 1986) [following motor vehicle accident, running engine, slurred speech, odor of an alcoholic beverage, bloodshot eyes provided probable cause to arrest]DISMISSALThe Defendant suggests that there was no lawful basis for the stop of his vehicle and no probable cause for his arrest for driving while intoxicated and, as a consequence thereof, argues that the case against him must be dismissed.In addition to the fact that this court, as indicated hereinabove, finds probable cause to arrest has been established, CPL §170.30 sets forth the grounds upon which an information, simplified information, prosecutor’s information or misdemeanor complaint may be dismissed. As with indictments, pursuant to CPL §210.20, “[l]ack of probable cause is not, in and of itself, one of the bases…for dismissal….” People v. Aiken, 251 A.D.2d 339, 673 N.Y.S.2d 1012 (2nd Dept. 1998); See also: People v. Davis, 23 Misc.3d 30, 879 N.Y.S.2d 268 (App. Term 9th & 10th Jud. Dists. 2009); People v. Davidson, 9 Misc.3d 131(A), 808 N.Y.S.2d 919 (App. Term 9th & 10th Jud. Dists. 2005); ["the court lack[s] authority to dismiss an accusatory instrument for lack of probable cause to arrest”]MOLINEAUX AND SANDOVALThe Defendant is entitled to the disclosure of his past criminal history and/or prior bad or immoral acts which the People intend to use at trial either on their direct case or on cross-examination, should the Defendant choose to testify. Such disclosure shall be made at a pre-trial Molineux³/Sandoval hearing to be held immediately before the commencement of trial.BRADY MATERIALInasmuch as the People’s affirmative duty to disclose Brady material within their possession or control exists regardless of any order confirming it, regardless of the People’s good or bad faith concerning the disclosure, Defendant’s application for an order directing the People to turn over same is unnecessary. (cf. People v. Morgan, 178 Misc.2d 595, 682 N.Y.S.2d 533 (Co. Ct. Fulton Co. 1998); People v. Jackson, 154 Misc.2d 718, 593 N.Y.S.2d 410 (S.C. Kings Co. 1992).Nevertheless, the People are here reminded of their obligation.FUTURE MOTIONSThat branch of the Defendant’s motion which seeks leave to serve and file additional motions, based upon a blanket request, unsupported by the proper papers and grounds, is unauthorized. See: CPL §255.20(3) Any future motions will be determined on an individual basis, based upon the timeliness and merits thereof.CONCLUSIONSBased upon all of the foregoing, the Defendant’s motion is decided as follows:(1) those branches of the Defendant’s motion seeking an order precluding and/or suppress trial testimony concerning all statements attributed to the Defendant, a sample of blood drawn from the Defendant and the results of an analysis of that blood, any physical evidence attributed to and/or seized from the Defendant, or, in the alternative, directing that an Mapp/Dunaway/Huntley hearing be held is granted to the limited extent of directing that a hearing be held addressing the issues of the whether or not any statements he made were the product of coercion and/or a violation of his Miranda rights, and is denied in all other respects;(2) that branch of the Defendant’s motion seeking an order dismissing the entire docket is denied;(3) that branch of the Defendant’s motion seeking an order restraining the People from cross-examining the Defendant, or introducing evidence on their direct case, concerning Defendant’s prior convictions and their underlying acts or any other prior bad acts, and directing the People to disclose same, or, in the alternative, directing that a Sandoval hearing be held is granted to the extent of directing that a Sandoval/Molineaux⁴ hearing be held immediately before trial;(4) that branch of the Defendant’s motion seeking an order directing the People to provide the Defendant with all exculpatory evidence is denied; and,(5) that branch of the Defendant’s motion seeking an order permitting the Defendant to make additional pre-trial motions is denied.This constitutes the decision and order of the court.Dated: Hempstead, New YorkMay 3, 2018