DECISION and ORDER The Defendant is charged with assault in the third degree, in violation of PL §120.00(3), driving while intoxicated, operating an uninsured motor vehicle and failing to use due care for stopped or standing emergency vehicles, in violation of VTL §§1192(3), 319(1) and 1144-aa, respectively.On March 28, 2018, this court (Engel, J.) conducted a Mapp/Dunaway/Huntley/refusal1 hearing, to determine issues involving the lawfulness of the stop and arrest of the Defendant, suppression of all tangible evidence seized from the Defendant, suppression of statements allegedly made by the Defendant and suppression of the Defendant’s alleged refusal to submit to a chemical test.Where a defendant challenges the legality of a seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 A.D.3d 866, 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 N.Y.3d 927, 827 N.Y.S.2d 696 (2006) If the prosecution meets this burden, the Defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 N.Y.2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People’s case in chief at trial. People v. Huntely, supra.; People v. Valeruis, 31 N.Y.2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625 (1977). With regard to the Defendant’s alleged refusal to submit to a chemical test, the burden is on the People to demonstrate that the Defendant was given clear and unequivocal warnings of the consequences of refusing to submit to a requested chemical test, and was persistent in her refusal to submit to sameThe People attempt to meet their burden through the testimony of Police Officer Mary-Jean Nappi and Sargent James Quigley. The Defendant did not call any witnesses. The court has had the opportunity to listen to, and to observe the officers on the witness stand, and makes the following findings of fact based upon the credible portions of their testimony:FINDINGS OF FACTOn February 12, 2017 Officer Nappi was in uniform, alone on patrol in a marked police vehicle, traveling northbound on Newbridge Road, when she was notified of a motor vehicle accident at the intersection of Newbridge Road and Jane Street. Upon responding to, and arriving at, the accident scene, Officer Nappi stopped her vehicle perpendicular to the roadway, in the northbound lanes of Newbridge Road, about three (3) car lengths from the vehicles which had been involved in the accident.Officer Nappi then approached the accident scene on foot and observed a police vehicle, with its lights engaged, and a black Fiat, which had been involved in the accident. It appeared that the Fiat had struck the patrol vehicle. Officer Nappi then approached the Fiat and observed the Defendant to be in the driver’s seat, alone, with the engine running and the keys in the ignition. The air bags of the Fiat had been deployed and there was smoke from the air bags in the vehicle.Officer Nappi asked the Defendant if she had been injured; and, the Defendant stated, “No.” Officer Nappi then went to speak with an Officer Triola, the operator of the other vehicle involved in the accident, and asked him if he was injured. Officer Triola indicated that he thought he was fine, but was moving stiffly. Officer Nappi instructed Officer Triola to get back in his patrol vehicle. Officer Nappi then returned to the Defendant, who was still in the Fiat.Officer Nappi again asked the Defendant if she was injured. The Defendant again said she was okay. Office Nappi then asked the Defendant where she was coming from and where she was going. The Defendant stated that she was coming from the Hicksville Train Station; that she had been in the city boxing, coming from fashion week. The Defendant first stated that she was going to Bay Shore, and then said she was going to Babylon. The Defendant further stated that a vehicle traveling in front of her had moved over, and that she did not move over, striking the police vehicle. During this conversation Officer Nappi observed the Defendant’s speech to be mumbled and a little slurred, and her eyes to be glassy and bloodshot. Officer Nappi then had the Defendant step out of her vehicle and go to the median on the opposite side of the northbound lanes of Newbridge Road.Once on the median with the Defendant, Officer Nappi noticed the Defendant had something in her mouth and had the Defendant remove what turned out to be gum. At this time, the Defendant kept asking about the location of her keys, noting that she had two (2) keys. The keys about which the Defendant inquired were in the Defendant’s hand. Officer Nappi then administered standardized field sobriety tests (“SFSTs”) to the Defendant. The Defendant asked Officer Nappi if a friend or her parents could come to video the tests. This was not done.During the administration of the horizontal gaze nystagmus test the Defendant kept moving her head and would not track the officer’s stimulus with her eyes only. For this reason, Officer Nappi had to perform the equal tracking part of the preliminary exam three (3) times. Nevertheless, Officer Nappi completed the test and observed nystagmus six (6) out of six (6) possible times. During the nine step walk and turn test Officer Nappi observed three (3) out of eight (8) possible clues of intoxication, including the Defendant starting the test too soon, missing heel to toe and raising her arms for balance. During the one leg stand test Officer Nappi observed the Defendant raise her arms for balance and sway, thereby exhibiting two (2) out of a possible four (4) clues of intoxication.Officer Nappi then attempted to administer a preliminary breath test (“PBT”) to the Defendant. The Defendant placed her mouth on the straw of the device, as instructed, but then held her breath, refusing to blow into the device. Officer Nappi replaced the straw and attempted to administer the PBT again. Once again the Defendant placed her mouth on the straw and failed to blow. Officer Nappi replaced the straw and attempted to administer the test one more time, with the same result. Thereafter, while talking with the Defendant, while the Defendant was speaking, Officer Nappi place the device in front of the Defendant’s mouth and clicked the device. Officer Nappi testified that his captured the Defendant’s breath, resulting in a positive partial reading, with a reported blood alcohol content of.07 percent.The Defendant was then placed under arrest, placed in a patrol vehicle and transported to the central testing section (“CTS”) of the Nassau County Police Department. On the way to CTS the Defendant fell asleep in the back seat of the patrol vehicle.At CTS the Defendant was asked to submit to a chemical test of her breath. Initially, the Defendant said she would submit to the test, wrote “Yes” on the request form and signed her name. While Sgt. Quigley was preparing the intoxylizer, the Defendant asked to call an attorney. Sgt. Quigley then removed the Defendant from the testing area and allowed her to make multiple telephone calls. The Defendant did not have the number of her attorney, so she called her father. Her father then called back and spoke to the Defendant, who then called an attorney. When the attorney did not answer, the Defendant left a message. Sgt. Quigley waited approximately twenty-five (25) minutes for the Defendant’s attorney to call back, allowing the Defendant to make additional telephone calls. The Defendant was allowed to send a text message to her mother, providing the telephone number for CTS; and, the Defendant’s mother called within five (5) minutes. The Defendant then spoke with her mother.Following these conversations the Defendant was again asked if she would submit to a chemical test of her breath. This time the Defendant said, “No.” The Defendant was then advised of the consequences of refusing to submit to the requested chemical test and was again asked if she would take the test. The Defendant again said “No,” wrote “No” and signed the request form. The Defendant was then taken to a SFST testing lane, where, in conversation with Sgt. Quigley, she confirmed that she had been asked to submit to a chemical test of her breath, was advised of the consequences of refusing and refused to submit to the test. Sgt. Quigley then advised the Defendant two (2) more times of the consequences of refusing and twice more asked the Defendant if she would submit to the test. Both times the Defendant refused.CONCLUSIONS OF LAWNot all police stops are prohibited; nor do they all require the presence of probable cause. “We must always hold in mind that it is only unreasonable searches and seizures from which the individual is protected under the Federal and State Constitutions (U.S. Const. 14th and 15th amdts.; N.Y. Const. Art. I, §12).” People v. David L., 81 A.D.2d 893, 895, 439 N.Y.S.2d 152, 154 (2nd Dept. 1981), [Hopkins, J.P. and Weinstein, J. dissenting] revd. on dissenting mem. below, 56 N.Y.2d 698, 451 N.Y.S.2d 722 (1982) cert. den. 459 U.S. 866, 103 S.Ct. 146 (1982) “Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual.” People v. Stewart, 41 N.Y.2d 65, 66, 390 N.Y.S.2d 870, 871 (1976); See also: Matter of Oniel W., 146 A.D.2d 633, 536 N.Y.S.2d 538 (2nd Dept. 1989) In making this analysis, the court “must weigh the degree of intrusion entailed against the precipitating and attending circumstances” People v. Salaman, 71 N.Y.2d 869, 870, 527 N.Y.S.2d 750, 751 (1988), “concentrate[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances (citations omitted), for reasonableness is the touchstone by which police-citizen encounters are measured (citations omitted).” People v. Lomiller, 30 A.D.3d 276, 277, 818 N.Y.S.2d 27, 28 (1st Dept. 2006); See also: People v. Molnar, 98 N.Y.2d 328, 746 N.Y.S.2d 643 (2002)It was the report of a motor vehicle accident which brought Officer Nappi to the scene where the Defendant was located; this case does not involve an automobile stop. Under such circumstances, Officer Nappi did not need to have probable cause for the actions she took between her initial approach of the Defendant’s vehicle and the Defendant’s arrest for driving while intoxicated. As recognized in People v. Rosario, 94 A.D.2d 329, 331, 465 N.Y.S.2d 211, 213 (2nd Dept. 1983):It is beyond cavil that the presence of probable cause is not a necessary element for all encounters between police and the citizenry during investigations of criminal activity (citation omitted). It is well settled that under appropriate circumstances, the police may briefly detain and question a person in a public place on information that does not rise to the level of probable cause, ‘for, until an actual arrest occurs, the Constitution demands only that the action of the police be justified at its inception and reasonably related in scope and intensity to the circumstances surrounding the encounter’ (People v. Finlayson, 76 A.D.2d 670, 674 cert den 450 U.S. 931; People v. Cantor, 36 N.Y.2d 106, 111; Terry v. Ohio, 392 U.S. 1, 20).”In People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375 (1976), “the Court of Appeals set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity.” People v. Kettreles, 62 A.D.3d 902, 909, 879 N.Y.S.2d 208, 214 (2nd Dept. 2009) See also: People v. McIntosh, 96 N.Y.2d 521, 730 N.Y.S.2d 265 (2001) As reiterated in People v. Hollman, 79 N.Y.2d 181, 184, 581 N.Y.S.2d 619, 620 (1992):If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is ‘activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion’ (People v. De Bour, supra., at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.The propriety of the police conduct in this manner must be evaluated in accordance with this rubric.Having responded to the scene of vehicular crash involving two (2) vehicles, Officer Nappi certainly had an articulable, objective basis, not necessarily indicative of criminality, to approach the Defendant, who was seated in the driver’s seat of one (1) of the vehicles involved in the accident, and ask questions regarding the Defendant’s identity, her destination and her condition. See: People v. DeBour, supra.; People v. Hollman, supra. Under these circumstances there is no reason for a reasonable person, innocent of any crime to believe she was in custody, nor was the Defendant.Following this initial approach, as the Court of Appeals noted in People v. DeBour, supra.:The role of the police in our society is a multifaceted one…. To consider the actions of the police solely in terms of arrest and criminal process is an unnecessary distortion. We must take cognizance of the fact that well over 50 percent of police work is spent in pursuits unrelated to crime (see, generally, Wilson, Varieties of Police Behavior, at p. 19; Misner, Enforcement: Illusion of Security, 208 The Nation 488; Bercal, Calls for Police Assistance, 13 Am. Behavioral Scientist 681). Consequently unrealistic restrictions on the authority to approach individuals would hamper the police in the performance of their other vital tasks. This is not to say that constitutional rights to privacy and freedom from unreasonable searches and seizures must be abandoned to accommodate the public service aspect of the police function. The overriding requirement of reasonableness in any event, must prevail.It was while performing this reasonable and lawful police function that Officer Nappi observed the Defendant to have mumbled and slurred speech, as well as bloodshot glassy eyes. While it is possible that these observations were the result of the Defendant’s airbags having deployed, when coupled with the Defendant’s admission that she failed to see and avoid striking the rear of the other vehicle involved in the accident, Officer Nappi had, at least, a reasonable suspicion that the Defendant had committed the crime of driving while intoxicated. See: People v. Farrell, 89 A.D.2d 987, 989, 454 N.Y.S.2d 306, 308 (2nd Dept. 1982) ["The County Court erred in finding that slurred speech and a staggered gait, absent the odor of alcohol on the person of the defendant, were facts insufficient to establish probable cause to arrest him for driving while intoxicated, where there has been a rear-end accident outside the officer's presence."]; People v. Maher, 52 Mis.c3d 136(A), 41 N.Y.S.3d 720 (App. Term 9th & 10th Jud. Dists. 2016) ["the fact of an accident may be construed to circumstantially suggest diminished motor control or impaired driving judgment by reason of alcohol consumption…."]In addition to the foregoing, VTL §1194(1)(b) provides, in pertinent part, “Every person operating a motor vehicle which has been involved in an accident…shall, at the request of a police officer, submit to a breath test to be administered by the police officer.” The Defendant having been involved in such an accident, it was proper for Officer Nappi to have the Defendant exit her vehicle for the purpose of attempting to administer the breath test.Thereafter, while Officer Nappi’s testimony, that she captured a sample of the Defendant’s breath, while the Defendant was talking, is too incredible to be credited, Officer Nappi did find multiple clues of the Defendant’s intoxication while administering SFSTs which, along with the accident, the Defendant’s glassy bloodshot eyes, mumbled and slurred speech, and multiple attempts to avoid providing a breath sample provided probable cause to believe that the Defendant had operated a motor vehicle in violation of VTL §1192. See: People v. Farrell, supra.; People v. Blajeski, 125 A.D.2d 582, 509 N.Y.S.2d 648 (2nd Dept. 1986) [observation of bloodshot eyes, slurred speech and the odor of alcohol provided probable cause]; People v. Gingras, supra. [observations of slurred speech, bloodshot eyes and the strong odor of alcohol provided probable cause]The uncontroverted hearing testimony was that the Defendant was requested to submit to a chemical test of her breath, was repeatedly “given clear and unequivocal warning of the effect of [her] refusal” People v. Gangale, 249 A.D.2d 413, 414, 671 N.Y.S.2d 148, 149 (2nd Dept. 1998) and, after given the opportunity to consult with an attorney, persistently refused to submit to the test by saying “No,” writing “No” and signing her name in response to the request.Finally, the court notes that the People previously disclosed, pursuant to CPL §710.30, the existence of statements allegedly made to a Lieutenant Guy V. Benedetto at 7:30 a.m., at the Detention Desk of the Nassau County Police Department Headquarters. There was no testimony elicited at this hearing regarding this statement.Accordingly, the Defendant’s motion to suppress is granted to the limited extent of suppressing statements allegedly made to a Lieutenant Guy V. Benedetto at 7:30 a.m., at the Detention Desk of the Nassau County Police Department Headquarters, and is denied in all other respects.THE PARTIES SHOULD BE PREPARED TO PROCEED TO TRIAL ON THE NEXT CALENDAR DATE, MAY 21, 2018.This constitutes the decision and order of the court.Dated: Hempstead, New YorkApril 23, 2018
