Defendant, Casey Powell, is charged with two counts of criminal possession of a controlled substance in the seventh degree, class A misdemeanors, in violation of Penal Law §220.03; unlawful possession of marijuana, a violation, in violation of Penal Law §221.05; driving while intoxicated, an unclassified misdemeanor, in violation of Vehicle and Traffic Law §1192(3); refusal to take a breath test, a traffic infraction, in violation of Vehicle and Traffic Law §1194(1)(b); improper signal, a traffic infraction, in violation of Vehicle and Traffic Law §1163(d); following too close, a traffic infraction, in violation of Vehicle and Traffic Law §1129(a) and unsafe lane change, a traffic infraction, in violation of Vehicle and Traffic Law §1128(a). By notice of motion filed on July 19, 2017, through her attorney, Thomas J. O’Hern, Esq., defendant moved for omnibus relief.Pre-trial hearings were held before the Court on November 30, 2018. New York State Trooper Brendan Filli testified for the People. The defense did not call any witnesses. At the close of the hearing, defendant challenged the sufficiency of the probable cause resulting in her arrest, moved to suppress statements and alleged that she was denied a meaningful opportunity to speak with her attorney. Both parties submitted post hearing memoranda.Based upon the credible testimony and evidence received by the Court, the Court makes the following findings of fact.FINDINGS OF FACTThe record reveals that defendant was arrested and charged, as set forth above on June 12, 2017. At approximately 10:20 PM that evening, Trooper Filli was on duty and located at the toll plaza for NYS Thruway Exit 23. He observed a vehicle approach the toll from the 9W ramp. He watched as the vehicle, traveling behind a tractor trailer, swerved from the right to the left lane and back again without signaling. Trooper Filli stopped the car before it reached the toll.Trooper Filli approached the vehicle. He observed two occupants. He asked the driver, later identified as Casey Powell, the defendant herein, for her license and registration and observed the odor of alcohol when she spoke. Defendant said that she was coming from a barbeque and had not had anything to drink. She said that she had taken some Xanax. Trooper Filli observed her to have a flushed face, droopy eyes and a raspy voice. He directed defendant to pull off onto the side of the road.Trooper Filli asked defendant to exit the vehicle. As she did, she yelled, “Gerstenzang”. Trooper Filli continued to smell alcohol emanating from defendant and she swayed when she walked. The defendant was asked to perform several standardized field sobriety tests, all of which she failed. She refuse to take a preliminary breath test.Defendant was arrested. A quantity of marijuana and cannabis oil were seized. Defendant was transported to a State Police Barracks where she was handcuffed to a bench, pursuant to police protocol. She was given DWI warnings from a pre-printed card. Defendant said she wanted to speak with her lawyer. She was given her cell phone. She made a call to her lawyer, Thomas O’Hern, Esq. Defendant’s side of the conversation was overheard by Trooper Filli. He also could hear a male voice coming from the phone, but could not hear anything specific with regard to conversation.After concluding her call, defendant refused to take a breath test. She was warned a second time and, again, asked to speak with her lawyer. She was advised that any response other than “yes” would be considered “no” and a refusal. Defendant responded, “I understand that”, and refused to take the test.She was warned and asked for a third time to take the test. Again, she asked for a lawyer and refused.Defendant was subsequently charged as set forth above.CONCLUSIONS OF LAWDefendant alleges that there was no probable cause for her arrest. She further moves to suppress her refusal to take a chemical test alleging that her right to counsel was violated in that she was denied a meaningful opportunity to speak with her attorney. The People oppose.A police officer may arrest a person for “…(a) crime when he has reasonable cause to believe that such a person has committed (a) crime whether in his presence or otherwise.” Criminal Procedure Law, §140.10(1)(b). Acting as a prudent person would in believing that an offense has been committed, a police officer is allowed to draw upon the entirety of his or her experience and knowledge as a criminal investigator in determining whether probable cause for arrest exists. People v. Hill 146 AD2d 823 (3rd Dept.) lv.den 73 NY2d 1016. The evidence of criminality need not rise to the level necessary to support a criminal conviction or even be sufficient to establish a prima facie case. It need merely appear more probable than not that crime has taken place and that the one arrested is its perpetrator. Id.Where police acting in their criminal law enforcement capacity initiate an encounter with a private citizen, the propriety of the encounter must be assessed under the four tiered analytical framework articulated by the Court of Appeals in People v. DeBour1 and reaffirmed in People v. Hollman2. People v. McIntosh 96 NY2d 521 (2001). The four levels of police intrusion, listed in increasing order of their intrusiveness on an individual’s rights, are as follows: a request for information, a common law right of inquiry, a detainer, and an arrest. The greater the intrusion, the more information the police must have to justify their conduct. People v. Hollman, supra; People v. DeBour, supra. In DeBour, the Court of Appeals recognized that in analyzing the propriety of police conduct, the Court must weigh the interference it entails against the precipitating and attendant conditions. Id. “By this approach, various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence.” Id, at 233. “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.’ 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.” People v. McIntosh, supra..The People must establish reasonable cause for the initial stop of a vehicle. However, all that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. People v. Osborne, 158 AD2d 740 (3rd Dept., 1990). It is enough if the stop is based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Id.It is well settled that the police may lawfully stop an automobile when they have observed the commission of a traffic offense in their presence. Penal Law, §1.20(39); 140.10(1)(a); Vehicle and Traffic Law, §155; People v. Ingle 36 NY2d 413 (1975). Where a police officer has probable cause to detain a person temporarily for a traffic violation, that seizure does not violate the Fourth Amendment to the United States Constitution even though the underlying reason for the stop might have been to investigate some other matter. Whren v. United States 517 U.S. 806 (1996). Adopting Whren the Court of Appeals has held that “…(i)n making a determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant.” People v. Robinson 97 NY2d 341, 348 (2001). “A police officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a stop.” Id., at 353.In the present matter, Trooper Filli testified that he initially observed defendant’s vehicle approaching the Exit 23 entrance to the NYS Thruway and observed the vehicle commit two traffic infractions; unsafe lane change and improper or no signal. This observation provided an articulable basis to stop the vehicle regardless of whether or not it was the primary motive for the stop. Whren v. United States, supra. The Court finds that Trooper Filli’s decision to make a traffic stop was valid. People v. Ingle, supra.During the course of a lawful stop, Trooper Filli was vested with the requisite authority to request that the defendant produce a valid driver’s license, registration and proof of insurance. People v. Alexander 189 AD2d 189 (Fourth Dept.).He was further authorized to request that defendant exit the vehicle. People v. Robinson 74 NY2d 773 (1989). The police may not unreasonably detain the occupants of an automobile unless they have reasonable suspicion to believe that a crime has been, is being or is about to be committed. People v. Banks 85 NY2d 558 (1995), cert denied 516 U.S. 868 (1995). Here, the trooper noticed the smell of alcohol coming from the vehicle and the defendant upon exiting the car. He also observed defendant, red faced with drooping eyes and swaying while she walked. She subsequently failed several standardized field sobriety tests.Viewing the facts and circumstances as they appeared at the time of the arrest, the Court finds that the People have established that Trooper Filli had reasonable cause to believe that defendant had violated Vehicle and Traffic Law, justifying the stop. People v. Hilker, 133 AD2d 986 (3rd Dept., 1987). The Court determines that a reasonable person in the position of the trooper could have concluded that defendant operated her vehicle under the influence of alcohol. People v. Phraner, 151 Misc 2d 961 (Dist.Ct., Suffolk Co., 1991).Turning to defendant’s pre-Miranda statements at the scene, those statements were made in response to Trooper Filli’s investigative query regarding the incident and not custodial interrogation. Miranda warnings are not required to be given to DWI suspects prior to the administration of performance tests. People v. Berg 92 NY2d 701(1999). Miranda warnings are not required when the questioning is not intended to illicit an incriminating response. See, People v. Ferro 63 NY2d 316 (1984). The motion to suppress the statements made at the scene is, therefore, denied. People v. Huntley 15 NY2d 72 (1965); People v. Witherspoon 66 NY2d 973 (1985).Turning to defendant’s claim that her right to counsel was violated, while an individual has the right to consult with an attorney in deciding whether to submit to a chemical test, that right is only a qualified right to counsel and not a constitutional one. People v. Keener 138 AD3d 1162 (3rd Dept., 2016). If a defendant arrested for driving while under the influence of alcohol requests to contact an attorney before responding to a request to take a chemical test, the police may not prevent access between the accused and his attorney, either in person or by telephone, unless such access would unduly interfere with the matter at hand or with the timely administration of the test. People v. Guernsey, 22 NY2d 224 (1968); People v. Washington, 23 NY3d 228 (2014).However, there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing. People v. Smith, 18 NY3d 544 (2012). “If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, “…a defendant who has asked to consult with an attorney can be required to make a decision without the benefit of counsel’s advice on the question”. Id. at 229.The foregoing notwithstanding, however, once the police agree to allow a suspect to contact his or her attorney, they must provide him or her with a reasonable means to do so. People v. Higgins 124 AD3d 929 (3rd Dept., 2015). Defendant alleges that her case is analogous to cases where suppression was granted due to inexcusable interference with a defendant’s right to counsel. In People v. Moffitt the court held that defendant’s qualified right to counsel was effectively destroyed when the officer: (1) placed the entire conversation on speaker phone; (2) stood so close that he could overhear the entire interchange and even answer some questions himself; and (3) recorded the entire conversation on video. People v. Moffitt 50 Misc 3d 803 (Crim.Court, New York County, 2015).In People v. Renders (City Ct, Albany County, March, 2016, Heath, J., Index #16-238464), this Court suppressed defendant’s chemical test holding that “the People have failed to establish that the police department made any effort to ascertain whether providing defendant with privacy to have a conversation with an attorney or releasing defendant from her handcuffs to allow defendant to access a phone that did not have a taped phone line would have unduly interfered with the timely administration of the chemical test or with police investigative procedures”Likewise, in People v. Russell (City Ct, Albany County, December, 2017, Reilly, J., Index #16-240320) defendant remained handcuffed while the attending SUNY police officer held the phone to defendant’s ear. The conversation was recorded by booking room video and both sides of the conversation were recorded as the phone provided had a taped line. Defendant requested that he be allowed to speak privately with his attorney. That request was denied. A recording of the conversation was later given to defense counsel. Subsequently, the SUNY police practice of recording conversations between individuals and counsel was discontinued subsequent to this case.This Court held that taping defendant’s conversation with counsel, without demonstrating that this procedure was necessary to the timely administration of the chemical test or that to do otherwise would have unduly interfered with the matter at hand, violated defendant’s qualified right to counsel. Id. The Court, suppressed defendant’s chemical test along with the portion of the booking room video showing defendant speaking to counsel as well as the audio recording of defendant’s conversation with counsel.In the present matter, the Court finds the facts distinguished from the cases cited where suppression was granted. Here, defendant was given her own cell phone to use in contacting her attorney. The line was not recorded, and while Trooper Filli could hear that she was speaking with a male, he could not hear any specific conversation. The Court finds that defendant’s right to counsel was not violated and her motion to suppress is denied.Additionally, the Court finds that defendant was given adequate warning concerning the consequences of her refusing to submit to a chemical test. People v. Boone 71 AD2d 859 (2nd Dept., 1979). Defendant was warned from a pre-printed card about the consequences of refusing to submit to a test and additionally warned that any answer other than “yes” would be considered a “no” and constitute a refusal. The Court finds that this recitation provided defendant with clear and unequivocal warning of the consequences of refusing to submit to a chemical test. See, In the Matter of Wickham v. New York State Department of Motor Vehicles, 2017 NY Slip Op 05909 (3rd Dept., 2017).The Court finds that the evidence submitted at the hearing satisfy the requirement of Boone in that it was established that defendant was given adequate warning of the consequences for refusing to submit to a chemical test, that she refused to take the test and that her repeated statements to the effect that she would not take the test, is sufficient to demonstrate a persistent refusal. People v. Boone, supra.The Court has considered defendant’s remaining arguments and finds them to be without merit.The case is now ready for trial and the Court will notify the parties when a trial date is set. This memorandum shall constitute the decision and order of the Court.ENTER.SO ORDERED.This 8th day of February 2019Albany, New York
