DECISION/ORDER The defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree (VTL §511[3][iii]), Driving While Intoxicated (VTL §1192[3] and other related charges. On May 16, 2019, this court held a Dunaway/Huntley and refusal hearing.1 At the conclusion of the hearing, both defense and the People made oral arguments. The People supplemented their oral arguments with a letter. The court makes the following findings of fact and conclusions of law.FINDINGS OF FACTAt the hearing, the People presented testimony of Police Officer Thomas Brown (“Officer Brown”) and Police Officer Christian Winner (“Officer Winner”). The court finds both officer’s testimony to be credible.Officer Brown testified that on October 12, 2018, he was on patrol and in uniform with Sergeant Cascone and Police Officer Britopozo, driving a marked car. At approximately 1:22 AM, he responded to a radio run for a male sleeping at the wheel of a car at the corner of Avenue W & Plumb 2nd Street. At the corner he observed the defendant behind the wheel of a car with the engine running and keys in the ignition. The defendant appeared to be passed out, slouched over with his head leaning forward. Officer Brown testified that the car was in the middle of the street in front of a stop sign. He approached on the passenger side and tapped the window. When the defendant failed to respond, Officer Brown opened the door. This encounter was captured on Officer Brown’s body camera. Sergeant Cascone put the car in park and asked the defendant for his license and registration. A license check revealed that the defendant’s license was suspended. Officer Brown asked the defendant questions with regard to where he was going, where he lived and what he was doing in the middle of the street. Officer Brown testified that the defendant’s eyes appeared blood shot and watery, that his speech was slurred and that in his opinion, the defendant was intoxicated. The defendant was arrested and transported back to the 61st Precinct. The time of arrest was 1:44 AM. At the 61st Precinct, he was searched and then brought to the IDTU located at the 78th Precinct. On the way to the IDTU, the defendant was making spontaneous statements to Officer Brown. The defendant continued “rambling,” as Officer Brown put it, once they arrived at the IDTU. All of these statements were recorded by his body camera. Officer Brown testified that no tests were conducted at the IDTU because the defendant was not cooperative and was spitting and cursing. No refusal warnings were given to the defendant. Officer Brown testified that the defendant was deemed an EDP (emotionally disturbed person) by the desk sergeant and transported to Methodist Hospital. Officer Winner of the Highway Patrol unit testified that he arrived at Methodist Hospital at approximately 5:03 AM to conduct a blood test on the defendant. He testified that he offered the test by reading from the Intoxicated Driver Examination — Blood form. The defendant refused the test. When warned of the consequences of refusal and read the warnings from that same from the defendant unequivocally refused again by stating “Get the fuck away from me, man. What do you want? No, man.” Officer Winner noted the time of refusal to be 5:20 AM.CONCLUSIONS OF LAW1. Dunaway/HuntleyProbable cause requires “the existence of facts and circumstances, which, view together, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed” (People v. White, 117 AD 2d 127, 131 [2nd Dept 1986]). The People have the burden of showing the legality of the police conduct (People v. Whitehurst, 25 NY2d 389 [1969]). A defendant’s statement may not be used against him if the statement was involuntarily made (CPL §60.45). Furthermore, the statement may not be used if the statement was taken in violation of his Miranda rights. At a Huntley hearing, the burden of proof is on the on the People to prove the voluntariness of the defendant’s statement beyond a reasonable doubt (See, People v. Anderson, 42 NY2d 35 [1977]). Furthermore, the People must demonstrate that any waiver of the defendant’s Miranda rights was done in a knowing and voluntary manner.Here, the police had probable cause to arrest the defendant as his license was suspended and it appeared to Officer Brown that he was operating a vehicle while intoxicated. The only statements that defense counsel seeks to suppress were those made after the defendant’s keys were taken from him and in response to Officer Brown’s questions. The court finds that those answers were given in response to investigatory questions by the police as they attempted to determine why the defendant’s vehicle was stopped in the middle of the street. Therefore, Miranda was not required. Furthermore, it does not appear that any of the defendant’s statements were made as a result of police coercion. The balance of the defendant’s statements were spontaneous in nature and were made without provocation. Accordingly, the defendant’s statements will not be suppressed.22. RefusalsIn order for the People to sustain their burden with regard to the refusal portion of the hearing, they must show that the defendant was warned of the consequences of his refusal in “clear and unequivocal language” and that he persisted in his refusal (VTL §1194[2][f]). However, as a threshold matter, for any refusal to be admissible it must be shown that it occurred no later than two hours after arrest (People v. Odum, 31 NY3d 344, 349 [2018]).3First, there is no cognizable argument that the defendant refused testing at the IDTU as there was no evidence that he refused and persisted in the face of refusal warnings. As to the refusal at Methodist Hospital: the test was offered at 5:20 AM and the time of arrest was 1:44 AM. Therefore, the test was offered outside of the two hour deemed consent provision of VTL §1194[2][a]. There is no merit to the People’s argument that the defendant caused the delay in offering the test. The delay was caused by the police deeming the defendant an EDP and transporting him to the hospital. No apparent reason other than the defendant cursing and spitting was shown by the People. Accordingly, the defendant’s refusal to submit to the test is not admissible against him and any such evidence of his refusal will be suppressed.Accordingly, it is hereby:ORDERED, that the defendant’s motion to suppress his refusal is granted; and it is furtherORDERED, that the defendant’s motion to suppress his statements is denied.This case is next on June 6th 2019 in Part 16 for trial.This opinion shall constitute the decision and order of the court.Dated: May 23, 2019
