On January 31, 2019, I conducted a Huntley/Dunaway hearing in which the admissibility of defendant’s refusal to take a breathalyzer test was also at issue. At the hearing, the People called Police Officer Ronny Valdez of the New York City Police Department as a witness, whose testimony I found credible. The defendant called no witnesses. FINDINGS OF FACTOn June 12, 2017, at about 1:30 a.m., Officer Valdez, along with his partner, Officer Fagan, then assigned to Bronx Borough Highway One, were travelling in an unmarked vehicle on the Major Deegan Expressway. Near where the highway intersects East 233th Street, Officer Valdez observed a 1997 Lexus SUV move from the left to the center of the three northbound lanes without signaling, cutting off and nearly striking Officer Valdez’s vehicle. Using the emergency lights in the police vehicle, Officer Valdez and his partner stopped the SUV, which pulled over to the shoulder of the highway.Officer Valdez approached the vehicle’s front passenger side, the window of which was down. He observed the defendant sitting in the driver’s seat. There were no passengers. Officer Valdez asked the defendant for his license, registration and insurance card and the defendant complied.1 Officer Valdez observed that the defendant’s eyes were bloodshot and watery, and he detected a very strong smell of alcohol emanating from inside the SUV. Officer Valdez asked the defendant whether he had been consuming alcohol and the defendant replied that he had had two drinks. Officer Valdez then asked the defendant to step out of the vehicle, and the defendant complied and walked to the back of the SUV.Officer Valdez again observed the defendant’s eyes to be bloodshot and watery, and he smelled alcohol coming from his mouth. After Officer Valdez explained to the defendant the procedure for administering a portable breathalyzer test, the defendant indicated that he understood and consented to its administration. Either Officer Valdez or Officer Fagan then administered the test, which indicated that the defendant had a blood alcohol level of .158. The officers placed the defendant under arrest at approximately 1:52 p.m. and took him to the 45th Precinct “IDTU” testing unit.At the scene, Officer Valdez and the defendant had spoken to each other in English, the defendant had been appropriately responsive to Officer Valdez’s questions, and he never indicated that he did not understand anything Officer Valdez said. At the precinct, however, the defendant claimed that he did not understand English.At approximately 2:50 a.m., Officer Valdez, in a procedure recorded on video, began the process of requesting whether the defendant would take the breathalyzer test. As he began, the defendant took out his wallet and removed from it a card, which he held, along with his wallet, in front of him, at his waist. Officer Valdez first announced that, “the subject does not speak English, so we’re gonna play the tape in Spanish.” He then read, in English, “You have been arrested for operating a motor vehicle while impaired. I would like you to take a breath test. Will you take the test, it’s either yes, or no?”After the officer spoke a few words to the defendant in Spanish, the defendant moved in front of a video screen, his hands still down in front of him, holding the wallet and card. Officer Valdez then played a recording for the defendant, in which the defendant was asked the question in Spanish that Officer Valdez had read in English. The defendant did not respond verbally, and instead silently stared in the direction of the video screen, keeping his hands down at his waist. Officer Valdez then spoke to the defendant in Spanish, asking him, “Senor, si o no.” The defendant remained silent for a second time, and, looking away from Officer Valdez, held up the card in the officer’s direction. Officer Valdez again spoke to the defendant in Spanish, ending with the question, “Si o no?” For a third time, the defendant failed to respond to the question, continuing to look away from him and holding up the card in his direction.Officer Valdez announced in English that the defendant had not given him an answer and that he was going to play another recording for the defendant, which, in Spanish, warned the defendant of the consequences of a refusal to take the test, concluding with the question, “Si o no.”2 As he did so, the defendant brought his arm — and the card and wallet it held — back in front of his waist. After the recording was played, the defendant remained silent for a fourth time, his position unchanged. When Officer Valdez again asked, “Senor, si o no?” the defendant remained silent a fifth time, and again lifted up the card to Officer Valdez.The Highway District Intoxicated Driver Examination form, admitted into evidence at the hearing, states that, “If the subject responds ‘NO’ or has not given a clear ‘YES’ or ‘NO’ answer, indicate on the video that the defendant has refused to take the chemical test.” Consistent with the directive, Officer Valdez stated, in English, “the subject is showing me a card that says ‘lawyer.’3 He refused, he is refusing the test.” Continuing in English, Officer Valdez announced, “We will forgo the physical coordination test due to the language barrier and also we’ll forgo the questionnaire with the Miranda warning, also due to the language barrier.” When Officer Valdez completed that announcement, the defendant returned the card to his wallet. Officer Valdez then announced the time and concluded the video.CONCLUSIONS OF LAWHUNTLEY/DUNAWAYIt is the People’s burden on a motion to suppress a statement allegedly obtained as a result of an illegal arrest or seizure to come forward with enough evidence to establish the legality of the police conduct. People v. Pettinato, 69 N.Y.2d 653, 654 (1986). If that burden is met, the defendant bears the ultimate burden of proving that the evidence offered against him was illegally or inappropriately obtained. People v. DiStefano, 38 N.Y.2d 640, 652 (1976); People v. Berrios, 28 N.Y.2d 361, 367 (1971). It is the People’s burden to prove beyond a reasonable doubt that the defendant’s statements were voluntary. People v. Thomas, 22 N.Y.3d 629, 641 (2014). In this case, the People have satisfied their burdens and the defendant has not satisfied his.Based on his observation of the defendant’s unsignaled and dangerous lane change, Officer Valdez and his partner lawfully stopped the defendant for a traffic violation. Having lawfully stopped him, Officer Valdez could instruct him to get out of the vehicle, even without noting the evidence of his intoxication. People v. Mundo, 99 N.Y.2d 55 (2002); People v. Robinson, 74 N.Y.2d 773 (1989); People v. Smith, 66 A.D.3d 514 (1st Dept. 2009). Having observed his bloodshot, watery eyes and having noted the smell alcohol emanating from the car, Officer Valdez had reasonable suspicion that he was intoxicated, and thus lawfully asked him whether he had been drinking. The defendant was not then in custody and Miranda warning were not required before Officer Valdez asked this question as part of his investigation. Berkemer v. McCarty, 468 U.S. 9 (1984); People v. Bennett, 70 N.Y.2d 891 (1987). Based on his reasonable suspicion, which was only enhanced by the defendant’s reply, Officer Valdez lawfully asked whether the defendant was willing to take the portable breathalyzer test, to which the defendant voluntarily consented. Based on the results of the test, Officer Valdez had probable cause to arrest him for driving while intoxicated. People v. Warren, 160 A.D.3d 1132 (3d Dept. 2018).Having reasonable grounds to believe the defendant had been operating his vehicle in violation of VTL § 1192, and having lawfully placed the defendant in custody, Officer Valdez asked the defendant at the precinct, within two hours of his arrest,whether he would take the breathalyzer test. That request was authorized pursuant to VTL § 1194. The question remains whether the defendant’s conduct in response to that inquiry is admissible against him at trial.THE REFUSALPursuant to VTL 1194(2)(f), evidence of a refusal may be admitted in evidence “only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of that refusal and that the person persisted in the refusal.” In People v. Gursey, 22 N.Y.2d 224, 227 (1968), the Court of Appeals held that a defendant who, after being given the mandated warning, asks to consult with his attorney before deciding to consent to the test is entitled to do so, making clear that “law enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.”In People v. Smith, 18 N.Y.3d 544 (2012), the defendant was arrested after failing a field sobriety test. At the scene, and at the state police barracks to which he was taken, the defendant was asked if he would take a chemical test, and each time he was informed of the consequences of refusing to take the test. Both times the defendant stated that he wanted to speak to his lawyer before deciding whether to do so. After he gave the response at the barracks, he was permitted to call his lawyer, but he was unable to reach him. A half hour later, the troopers administered the warnings yet again, and the defendant was asked for a third time whether he was willing to take the test. When the defendant responded that he was waiting for his attorney to call him back, “the troopers interpreted defendant’s response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194 (2) (b).” Id. at 547.As the Court observed in Smith, “whether a defendant refused [to take a breathalyzer test] in a particular situation may be difficult to ascertain in cases where the accused did not communicate that intent in so many words.” Id. at 550. While “a defendant need not expressly decline a police officer’s request in order to effectuate a refusal that is admissible at trial,” the Court concluded that because the troopers never informed the defendant that his “time to make a decision was limited,” when the question was put to him for the third time “he had no reason to know that his time for deliberation was over.” Id. at 550-51. Concluding that “a reasonable motorist in defendant’s position would not have understood that…the [third] request to speak to an attorney would be interpreted by the troopers as a binding refusal to submit to a chemical test,” the Court held that the defendant was not adequately warned that his conduct would constitute a refusal and that it was error to permit it to be offered in evidence. Id. at 551.In this case, the defendant’s conduct was insufficient to have triggered a requirement that Officer Valdez provide him with an opportunity to contact an attorney. This is not a case in which the police ignored the defendant’s explicit request to speak to counsel prior to the administration of the test. Compare People v. Mora-Hernandez, 77 A.D.3d 531 (1st Dept. 2010); People v. Richburg, 287 A.D.2d 790 (3d Dept. 2001). No such request was made. Instead, the defendant simply stood silent and displayed what may have been an attorney’s business card, without stating, either in English or Spanish, that he was asking to contact either that attorney (if it was indeed an attorney’s business card) or any other attorney. See People v. Glover, 87 N.Y.2d 838, 839 (1995) (“when the defendant’s request is not unequivocal, the right to counsel does not attach”); People v. Fridman, 71 N.Y.2d 845, 846 (1988) (“the defendant’s suggestions that he or the police might want to consult with his attorney with respect to certain matters cannot be said to constitute an unequivocal assertion of the right to counsel”).Nor is this a case in which the defendant could not make an explicit request for an attorney because of his difficulties with English. Based on his interaction with Officer Valdez at the scene of the stop, where he was able to understand and speak to the officer in English, it seems apparent that he could have made such a request in English. Regardless, he could have made the request to Officer Valdez in Spanish, which he had every reason to believe Officer Valdez would have understood. Compare People v. Niedzwiecki, 127 Misc. 2d 919, 921 (Queens Co. Crim. Ct. 1985) (“the police realized from the moment of his arrest that the defendant possessed a fundamental linguistic problem. The meager efforts of the police to secure someone from the personnel present who could speak Polish did not satisfy their duty to ensure a defendant’s right to be informed of the choices available to him by statute”).Having been clearly warned, in Spanish, of the consequences of a refusal, his persistent silence in the face of being asked five times, in Spanish, whether he was willing to take the test, constituted a refusal to do so. This is so whether his conduct in response to the questions is fairly characterized as an outright refusal to take the test, see Niedzwiecki, supra (recognizing that a defendant’s silence could be deemed a refusal if defendant is told it would be introduced into evidence against him), or, instead, as an implicit refusal “by knowingly and willfully failing to follow instructions.” People v. Lizaldo, 124 A.D.3d 432, 433 (1st Dept. 2015); see, e.g., Smith, 18 N.Y.3d at 550 (“where a motorist fails to follow the directions of a police officer prior to or during the test, thereby interfering with the timing of the procedure or its efficacy, this can constitute a constructive refusal”); People v. O’Rama, 78 N.Y.2d 270, 280 (1991) (“When viewed in the context of defendant’s statement to police that his attorney could not be contacted for several hours, the police officer’s statement to him that his insistence on waiting for his attorney constituted a refusal was not misleading or inaccurate”); Johnson v. Adduci, 198 A.D.2d 352 (2d Dept. 1993) (agreeing to take test but refusing to blow into tube of testing machine constitutes refusal to take test).For these reasons, the defendant’s motion to suppress his statement and his refusal to take a breathalyzer test is denied.Dated: February 19, 2019
