The defendant is charged with one (1) count of Driving While Intoxicated in violation of VTL §1192(3); one (1) count of Leaving the Scene of an Accident in violation of VTL §600.1A; and one (1) count of Refusal to Submit to a Chemical Test in violation of VTL §1193(A). A Mapp/Huntley/Dunaway/Wade hearing was granted on consent.At the suppression hearing which began on May 8, 2019 and continued on May 14, 2019, the People called as its witnesses Police Officers Jermaine Patterson, Tiesha Kirton and Kareem Lloyd of the Mount Vernon Police Department. The defendant did not present any evidence.Police Officer Patterson testified that on December 30, 2018, at approximately 4:10 a.m., he was working in a marked vehicle with his partner Officer Lloyd when they noticed a Jeep Cherokee vehicle crashed into a utility pole on West Sandford Boulevard and South Sixth Avenue in the City of Mount Vernon, County of Westchester and State of New York. Officer Patterson stated that he and his partner exited their vehicle and approached the crashed vehicle which was empty, but the engine was running so he turned it off for safety purposes. Within one to three minutes of arriving on the scene, he testified that the defendant approached the subject vehicle on foot and attempted to close a rear door. When asked what he knew about the crash, the defendant stated that the vehicle wasn’t his, but he knew who the owner was. While asking the defendant questions about what he knew about the crash, both Officer Patterson and Officer Lloyd testified that the defendant was unsteady on his feet, had slurred speech and bloodshot eyes. While questioning the defendant, Officer Patterson testified that he received a radio call from a fellow officer who told him that she was with a person who owned the crashed vehicle, and stated that the owner claimed that her boyfriend was the driver of the vehicle. The name of the boyfriend matched that of the defendant so he was detained, while the officers waited for their fellow officer to transport the owner to the scene for a confirmatory identification.Officer Kirton testified that she responded to a domestic dispute at the Boulevard Bar on Sandford Boulevard a few blockes from where the crash occurred. Upon arriving at the subject location, she was informed by a female victim that she had gotten into a verbal dispute with her boyfriend inside the bar, and that he drove her vehicle away without her permission. Officer Kirton became aware of the vehicle being crashed a few blocks away, so she transported the victim to where the defendant was being held. Once there the owner of the vehicle identified the defendant, who was being detained by Officers Patterson and Lloyd, as her boyfriend and the person that drove her vehicle away from the bar.The defendant was placed under arrest for Driving While Intoxicated and related offenses. Upon searching the defendant, the key to the crashed vehicle was recovered and turned over to the victim. The defendant was then taken to Mount Vernon Police Headquarters where Officer Lloyd testified that he administered three standard field sobriety tests, of which the defendant failed all three. Officer Lloyd further testified that he asked the defendant to submit to a chemical breath test, which he initially agreed to perform, but then refused. Lastly, he testified that he read the Miranda warnings and the DWI warnings twice to the defendant. The People did not present any documentary evidence regarding said warnings being given.“The touchstone of any analysis of a governmental invasion of a citizen’s person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness” (People v. Batista, 88 NY2d 650, 653 [1996] [internal quotation marks ommitted]). Whether governmental action is reasonable will turn on the facts of each case and requires consideration of whether the police action at issue “was justified in its inception and whether… it was reasonably related in scope to the circumstances which created the encounter” (People v. Powell, 246 AD2d 366, 368 [1st Dept 1998], appeal dismissed 92 NY2d 886 [1998]). The lawfulness of police-initiated encounters with private citizens is governed by the graduated four-level test first outlined in People v. De Bour (40 NY2d 210, 223 [1976]; see also People v. Hollman, 79 NY2d 181 [1992]). The degree of restraint on an individual’s freedom of movement must correlate with the necessary level of suspicion to warrant the intrusion. Under level one, a police officer may request information from a person provided that the request is supported by an objectively credible reason that need not be necessarily indicative of criminality. A level two encounter, also known as the common-law right of inquiry, permits a more invasive line of questioning of a person when the officer has a founded suspicion that criminal activity is afoot. A level three encounter allows the police to forcibly stop and detain a person if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Finally, under a level four encounter, an arrest is authorized when the police have probable cause to believe a person has committed a crime (De Bour, 40NY2d at 223).Here, the Mount Vernon police officers initial contact with defendant constituted a level one encounter, a mere request for information. After the defendant approached the officers, provided the officers with his name and tried to explain what his interest was in the crashed vehicle, they received information from a fellow officer that she had a witness that claimed the defendant was driving her car without her permission. Both officers also testified that the defendant exhibited the typical signs of intoxication. At this point of the investigation, the third level of Debour permitted the officers to temporarily detain the defendant, based upon a reasonable suspicion that the defendant had committed the offenses of Leaving the Scene of an Accident and Driving While Intoxicated.An officer may arrest a person when the officer has probable cause to believe that the person has committed a crime (see Dunaway v. New York, 442 US 200). That legal conclusion is to be made after considering “all of the facts and circumstances together” (People v. Bigelow, 66 NY2d 417, 423 [1985]). Under all the facts and circumstances of this case (see People v. Bigelow, 66 NY2d at 423), this Court finds that the arresting officer had probable cause to believe that defendant had committed a crime, and thus, to arrest defendant (see People v. De Bour, 40 NY2d 210 [1976]; People v. McCrary, 71 AD3d 1049 [2010]; People v. Stevens, 43 AD3d 1088).The evidence established that the police officer’s search of the defendant’s pocket and seizure of the crashed vehicle’s key was justified since it arose from a search incident to a lawful arrest (see People v. Inge, 90 AD3d 675, 676 [2d Dept 2011]; People v. Parker, 306 AD2d 543 [2d Dept 2003]).Defendant’s claim that the identification evidence should be suppressed is without merit. “[T]he purpose of the Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness.’” People v. Dixon, 85 NY2d 218, 222 (1995) quoting People v. Gissendanner, 48 NY2d 543, 552 (1979). There are two narrowly construed exceptions to the general requirement of a Wade hearing, where either the prior identification was merely confirmatory or where the individuals are known to each other. See, People v. Dixon, 85 NY2d 216 (1996); People v. Wharton, 74 NY2d 921 (1989); People v. Gissendanner, 48 NY2d 543 (1979). “A court’s invocation of the confirmatory identification exception is thus tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification.” People v. Rodriguez, 79 NY2d 445, 450 (1992).In this action, the evidence established that the defendant and the person that identified him were in a relationship together, and had been arguing with one another at a local bar not too far from where the identification took place. Based on their prior relationship, her identification was merely confirmatory and this Court finds that there was little or no risk that police suggestion could have led to a misidentification. As such, the motion to suppress the identification is denied.As to the Huntley issues raised at the hearing, contrary to the defendant’s contention, Officer Lloyd and Officer Patterson’s questioning of him before his arrest at the scene were investigatory in nature and asked after a valid inquiry of the defendant (see People v. Bennett, 70 NY2d 891[1987]). Consequently, Miranda warnings were not required to be read to the defendant prior to being detained, therefore the defendant’s statements to police before being detained are admissible at trial.Lastly, the People contend that the defendant refused a chemical breath test after his arrest. A person who operates a vehicle in New York is deemed to have provided consent to a chemical test of his or her breath in order to determine the blood alcohol content (see Vehicle and Traffic Law §1194[2][a]). A driver of a vehicle has a qualified right to decline to voluntarily take that chemical test provided they have an understanding that this refusal will result in the immediate suspension and ultimate revocation of the motorist’s driver license for a period of one year (People v. Sirico, 135 AD3d 19 [2d Dept 2015], citing VTL §1194, and People v. Smith, 18 NY3d 544, 548 [2012]). This refusal “shall be admissible in any trial, proceeding or hearing” based upon a violation of VTL §1192, “but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal” (VTL §1194[2][f]; People v. Sirico, 135 AD3d 19 [2d Dept 2015]; see Matter of Gargano v. New York State Dept. of Motor Vehs, 118 AD2d 859, 860 [2d Dept 1986]). Officer’s Lloyd’s testimony that he read the defendant the DWI warnings twice after he refused the chemical test was unsupported by documentary evidence and therefore insufficient to establish that the defendant’s refusal was persistent and clear.Accordingly, defendant’s motion is granted only to the extent that his alleged refusal to submit to a chemical breath test is suppressed.This constitutes the Decision and Order of this Court.Dated: May 20, 2019Mount Vernon, New York
