Defendant Carlos Velazquez is charged with two counts of Driving While Intoxicated (VTL §§1192 [2], [3]; hereinafter “DWI”) and one count of Driving While Ability Impaired (VTL §1192 [1]). This Court conducted a combined Mapp/Huntley/Atkins/Johnson/Dunaway/Ingle hearing on April 1 and 2, 2019. The subject of the hearing was the defendant’s statements made to the police at the scene as well as other tangible fruits of his arrest. For the reasons that follow, the defendant’s motion to suppress a noticed statement, “No, I haven’t been drinking” is GRANTED by the People’s failure to meet their burden of production at the hearing. The remaining motions by the defendant are DENIED.PROCEDURAL HISTORYThe defendant was arrested and arraigned on March 4, 2018. At his arraignment, the People served a statement notice pursuant to CPL §710.30 (1) (a) indicating their intent to use the defendant’s three statements made to the police. Following motion practice, Mapp/Huntley/Atkins/Johnson/Dunaway/Ingle hearings were granted on April 18, 2018.The hearings were conducted by this Court on April 1 and 2, 2019. The People called Officer Ronald Hobson (ShieldNo. 17689) as their sole witness for the hearing. Defense called no witnesses. Both parties rested on the record and made oral arguments. The defendant asked for suppression of police officer observations, statements made by the defendant, observations and recordings of the physical coordination test and the breathalyzer results based on the police officer’s unlawful conduct. The People opposed, arguing that the officer’s acts were authorized.The Court reserved decision and adjourned the case for decision. The People subsequently filed a supplemental motion off-calendar on May 3, 2019. The defendant filed a supplemental reply brief on May 17, 2019.The following constitute the Court’s findings of fact and conclusions of law.FINDINGS OF FACTOfficer Ronald Hobson testified as the only witness at the hearing. This Court finds his testimony to be credible. Officer Hobson testified that he is a 13-year veteran of the New York City Police Department (hereinafter “NYPD”) who has made about 400 arrests in his career, 300 of which were for individuals suspected of driving under the influence of alcohol. He has also assisted in more than 1,200 arrests, 800 of which were for DWI. Officer Hobson further testified that he has received training on how to identify people who are under the influence of alcohol. He is certified by the NYPD to operate a portable breathalyzer test (hereinafter “PBT”).On March 4, 2018, Officer Hobson’s assigned duty was to conduct routine patrol with his partner, Officer Scozza. Around 3:04 a.m., the officers were in a marked police vehicle in the vicinity of Walton Avenue and East 183rd Street. Officer Hobson described Walton Avenue as a southbound one-way street with vehicles parked on each side. He also described East 183rd Street as a two-way street going east and west with no yellow or white lines separating the two lanes. There is a traffic light at the intersection and the area is very well lit, according to the officer.Officer Hobson testified that as he approached the intersection, he observed a car on East 183rd Street with hazard lights on. The car was facing east and about two cars in front of the officer’s police vehicle. He testified that the car was double parked and did not move through two red light cycles. It was causing the other cars on the road to go into the oncoming traffic lane. Officer Hobson testified that he drove the police vehicle next to the parked car in order to tell the motorist to move the car. In the process, he drove the police car into the opposite lane and blocked the entire street with his car.During the officer’s conversation with the driver of the parked vehicle, a Toyota Highlander pulled up from behind and honked several times. At this point, Officer Hobson drove his police vehicle back towards the Highlander to talk to the driver. The officer parked the police vehicle parallel to the Highlander with his police vehicle still occupying the opposite lane. He then engaged in a conversation with the driver, who was later identified to be the defendant. The officer asked, “sir, why are you blowing your horn for?” (tr at 21 lines 14-15). He further stated to the defendant, “sir, I’m conducting business here. Obviously there was a double parked car there, I was trying to get them to move for you guys.” (id. at lines 17- 20) The defendant apologized. Officer Hobson testified that he observed the defendant to have bloodshot, watery eyes. The officer “asked [the defendant] to pull over on the right-hand side to…conduct a car stop.” (id. at lines 20-21)1The defendant complied with the officer’s verbal command and parked his vehicle. Officer Hobson then exited his vehicle and approached the defendant. He asked the defendant “where he was heading to” and proceeded to ask him for his license, registration, and insurance card (tr at 22 lines 3-4). As the defendant was getting the documents that the officer requested, Officer Hobson testified that he smelled a strong odor of alcoholic beverage from the vehicle and the defendant’s person. On cross examination, the officer testified that this was the first time that he smelled the odor of alcohol from the defendant. He also observed the defendant to have bloodshot, watery eyes. There was another passenger in the car.During this encounter, the defendant told the officer that he had some drinks earlier. Officer Hobson asked him to get out of the car. Once outside, the defendant was offered a PBT by Officer Hobson. The defendant consented to take the test. The test resulted in a reading of .15 of one per centum of alcohol by body weight. After the PBT was conducted, the defendant stated that “he was dropping a friend off or something like along those lines” (tr at 25 lines 6-8).After the PBT was conducted, the defendant was placed under arrest and transported to the 45th Precinct for further testing. At the precinct, the defendant was asked by a highway officer to submit to a breathalyzer test around 4:30 a.m. The defendant consented. The machine indicated the defendant to have a blood alcohol content of 0.11. Thereafter, the defendant participated in a number of sobriety tests. Upon completion of those tests, he was given a Miranda warning and refused to answer questions. This interaction was recorded on video and submitted as evidence at the hearing.CONCLUSIONS OF LAWDefendant’s Motion to Suppress is Denied as the Police Had Reasonable Cause to Believe that the Defendant Had Committed a Traffic InfractionIn a suppression hearing, the burden is on the prosecution to first establish the legality of the police conduct (See e.g. People v. Whitehurst, 25 NY2d 389, 391 [1969]; People v. Wise, 46 NY2d 321, 329 [1978]). The People must present to the court not only credible evidence (People v. Berrios, 28 NY2d 361 [1971]), but also facts — not merely conclusions or beliefs of the witnesses (People v. Dodt, 61 NY2d 408 [1984]). Once the prosecution meets this initial burden, the defendant bears the ultimate burden of showing the illegality of the police conduct (See e.g. Berrios, 28 NY2d at 367; People v. Di Stefano, 38 NY2d 640, 652 [1976]).In New York, street encounters between the police and private citizens are governed by People v. De Bour (40 NY2d 210 [1976]; see also People v. Hollman, 79 NY2d 181 [1992]). De Bour charted four levels of police intrusions and the quantum of suspicion necessary to justify them. Under De Bour, when the police have some objective and credible reason, not necessarily indicative of criminality, they may approach citizens to request information. A common-law right to inquire is activated when there is a founded suspicion that criminal activity is afoot. At this level, the officer’s inquiry may be extended and accusatory. Where the police have a reasonable suspicion that a person has committed, is committing, or is about to commit a crime, the officer may forcibly stop and detain that person. Finally, an arrest is authorized on probable cause to believe that a person has committed a crime.The right of the police to stop an automobile under De Bour takes on a slightly different contour because “the obvious impact of stopping the progress of an automobile is more intrusive than the minimal intrusion involved in stopping a pedestrian” (People v. John BB, 56 NY2d 482, 487 [1982]). Accordingly, while the police may approach a parked car based on an objective, credible reason as under De Bour (People v. Harrison, 57 NY2d 470, 475-476 [1982]), a stop of a moving vehicle is authorized only “when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime” (People v. Spencer, 84 NY2d 749, 753 [1995]; People v. May, 81 NY2d 725 [1992]; People v. Ingle, 36 NY2d 413 [1975]). Whether the police’s approach of a running car that is stationary — such as cars waiting for traffic signals to change — constitutes a seizure requires a case-by-case analysis. In such circumstances, the court must determine “whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom” (People v. Ocasio, 85 NY2d 982, 982 [1995]; see also People v. Yukl, 25 NY2d 585 [1969]). The test involves the consideration of facts such as “was there a chase; were lights, sirens or a loudspeaker used; was the officer’s gun drawn, was the individual prevented from moving; how many verbal commands were given; what was the content and tone of the commands; how many officers were involved; where did the encounter take place.” (id.)Here, neither party contests that the officer’s initial approach of the defendant in his stopped vehicle required any more than an objective, credible reason to do so. Both parties further agree that the defendant’s act of blowing his vehicle’s horn gave such reason for the officer to approach (see People v. Thomas, 19 AD3d 32, 39 [1st Dept 2005] [a reasonable person who stops a car beside a fire hydrant would understand that doing so "invites the attention of law enforcement" and by "implicitly inviting police attention, a person stopping a car beside a hydrant attenuates his or her privacy interest to the extent that it becomes appropriate for the police…to make limited inquiries"]). What is at dispute, however, is whether the officer’s verbal direction to the defendant to pull over his vehicle to the side constituted a “seizure implicating constitutional limitations” (Spencer, at 752, citing Delaware v. Prouse, 440 US 648, 653 [1979]). On the one hand, the People assert that it was not an order, but a mere request or a direction. They argue that since the encounter began while the defendant was in the middle of the road and the police car was blocking the opposite lane in a narrow two-way street, the officer had to request the defendant to pull over to the side to continue the lawfully-initiated encounter in a safer environment. To support their argument, they point to how some of the facts that are characteristic of a police-dominated environment — such as turret lights and sirens being activated, weapons being drawn, or a scene crowded with police officers — are missing from this case. They contend that the absence of these factors shows that a reasonable person in the defendant’s position would not have felt any constraint on his ability to leave. On the other hand, the defendant argues that the officer’s verbal command constituted a car stop, which required a reasonable suspicion that the defendant was committing a crime. The defendant asserts that the officer’s observation of his bloodshot, watery eyes, without more, was not enough to raise to the level of suspicion for DWI.When viewing the totality of the circumstances, the Court concludes that the officer’s command to the defendant was an order. Consequently, the Court finds that a seizure had occurred when the defendant complied with the order. Although there was no chase nor sirens, the encounter occurred on a narrow two-way street. The officers were in a marked police vehicle wearing a uniform. When the defendant first entered the scene, the street was closed off by the officers’ police vehicle in the opposite lane and a double parked car in his lane. It further appears from the officer’s testimony that one of the first words spoken to the defendant were, “hey, listen, I’m conducting police business right now” (tr at 21 lines 7-8). Under the circumstances of this case, a reasonable innocent person in the defendant’s position would not have felt free to leave when the officer directed him to pull over “to conduct a car stop” (tr at 21 line 21).However, the seizure may still be authorized if the police had the requisite level of suspicion. Here, the People argue that the seizure was an ordinary car stop, which was justified by the officer’s observation of the defendant’s honking in a non-emergency situation (see VTL §375 [1] [a] ["Every motor vehicle…shall be provided with…a suitable and adequate horn…which horn or device shall produce a sound sufficiently loud to serve as a danger warning but shall not be used other than as a reasonable warning nor be unnecessarily loud or harsh"]).Unnecessary honking is a traffic infraction (VTL §1800 [b] [1]; see also Matt Flegenheimer, Stop the Honking? New York Suggests It’s a Lost Cause, Jan. 28, 2013, A16 [in the year 2012, the Police Department issued 206 summonses for unnecessary use of horn and there were 1,796 public complaints about honking]). The People further assert that the officer was permitted to ask if the defendant had been drinking when the officer smelled alcohol on the defendant’s breath and observed the defendant to have bloodshot, watery eyes. When the defendant admitted to drinking earlier in the day and the PBT result showed that he had a blood alcohol level above the legal limit, the People argue that the police had a probable cause to arrest the defendant.On the other hand, the defendant asserts that VTL §375 (1) (a) merely requires every car to be “equipped with a horn whose sound is loud enough such that it is capable of being used as a danger warning” and that it “does not state that the horn’s sound is restricted to being used only as a danger warning” (Defendant’s Post-hearing Brief, 17). He further argues that the use of the horn in this case — to request Officer Hobson or the double parked car to move — was not unreasonable. Because the police unlawfully ordered the defendant to stop his vehicle, which led to Officer Hobson’s suspicion that the defendant was intoxicated, the defendant contends that all of the evidence that followed from the seizure must be suppressed as fruits of a poisonous tree.As an initial matter, after having carefully considered both sides of the argument, the Court rejects the defendant’s interpretation of VTL §375 (1) (a). To begin, “[i]n the absence of any controlling statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as ‘useful guideposts’ in determining the meaning of a word of phrase” (Rosner v. Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480 [2001], citing Matter of Village of Chestnut Ridge v. Howard, 92 NY2d 718, 723 [1999]). VTL §375 does not provide a statutory definition of “warning.” However, “warning” is defined as “[t]he pointing out of a danger, esp. to one who would not otherwise be aware of it” (Black’s Law Dictionary [10th ed 2014], warning) [Note: online version]. This dictionary definition comports with how the word was used in the statute. The word “warning” is used twice in VTL §375 (1) (a): statute states that a vehicle’s horn “shall produce a sound sufficient loud to serve as a danger warning” and that it “shall not be used other than as a reasonable warning” (VTL §375 [1] [a] [emphasis added]). A fair and plain reading of the phrase “a reasonable warning” is not in isolation by itself as the defendant suggests, but in conjunction “danger warning.” Thus, the statute mandates every motor vehicle to have a horn that can sound a danger warning; and the statute further proscribes that horn from being used “other than as a reasonable [danger] warning.”2Moreover, this statutory construction aligns VTL §375 (1) (a) with New York City’s Administrative Code §24-237 (a), which also prohibits an unreasonable use of the vehicle’s horn within the city limits. Administrative Code §24-237 (a) reads, “No person shall operate or use or cause to be operated or used any claxon installed on a motor vehicle, except as a sound signal of imminent danger or in connection with use as an audible motor vehicle burglar alarm.” (id. [emphasis added]) Thus, despite its frequent use in the city, honking is a traffic infraction if used in a non-emergency situation.In this case, the hearing testimony established that all of the cars were stationary and there was no threat of imminent danger. Further, the primary purpose of the defendant’s honks as conceded by defense counsel was to request the police vehicle or the double parked vehicle to move. As such, Officer Hobson’s observation of the defendant’s use of his vehicle’s horn gave him a reasonable suspicion to effectuate a car stop (see People v. Pealer, 20 NY3d 447, 457, n. 2 [2013] ["probable cause to believe that the VTL has been violated provides an objectively reasonable basis for the police to stop a vehicle"]; see also People v. Ingle, 36 NY2d 413 [1975] [police authorized to stop a motor vehicle without a warrant upon reasonable suspicion to believe a traffic infraction has been committed]; People v. Diaz, 146 AD3d 803 [2nd Dept 2017] [same]; People v. Diaz, 232 AD2d 289 [1st Dept 1996], lv denied 89 NY2d 944 [1997] [same]).The defendant also argues that the People may not rely on VTL §375 (1) (a) to establish a reasonable cause for the car stop because the officer never testified at the hearing that it was his intention to issue a traffic summons for the illegal honking. The record is indeed devoid of any indication about the officer’s purpose in telling the defendant to pull over — whether it was to issue a traffic ticket, to admonish the defendant or to conduct some other unrelated investigation. However, this ambiguity is of little import in light of People v. Robinson (97 NY2d 341 [2001]). In rejecting the argument that pretextual car stops are unlawful, the Robinson Court held that “[i]n making that 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” (Robinson, at 349). The Court further stated,This Court has always evaluated the validity of a traffic stop based on probable cause that a driver has committed a traffic violation, without regard to the primary motivation of the police officer or an assessment that a reasonable traffic officer would have made the same stop. Where the police have stopped a vehicle for a valid reason, we have upheld police conduct without regard to the reason for the stop.(id. at 350)Similarly, in the following cases, appellate divisions have held that the officer’s “initial intent” in stopping the defendant is irrelevant (see e.g. People v. Randall, 143 AD3d 411, 411 [1st Dept 2016] [officer was authorized to stop the defendant for riding a bicycle unsafely and order him off the bicycle "regardless of whether the officer's initial intent was to give defendant admonition instead of a ticket, and whether the officer also wished to investigate a suspicious handle protruding from defendant's pocket"]; People v. Ross, 106 AD3d 1194, 1195 [3d Dept 2013] ["Given the unrefuted evidence that police officers observed two traffic infractions by the taxicab driver, they possessed probable cause to initiate a traffic stop, regardless of whether the infractions were the primary motive for the stop"]; People v. Williams, 65 AD3d 484 [1st Dept 2009]). Thus, as the defendant concedes that the officer observed the honking by the defendant, the officer’s unknown intent in telling the defendant to pull over his vehicle to the side does not affect the Court’s analysis about whether the car stop was lawful.Furthermore, the police conduct following the defendant’s compliance with the officer’s order was also lawful. The officer testified that he approached the defendant’s vehicle and requested his driver’s license, insurance and registration card (People v. Banks, 85 NY2d 558 [1995] [officer can request information from the driver that relates to the traffic infraction]). During this interaction, the officer sensed a strong smell of an alcoholic beverage to be emanating from the car and the defendant. He further observed the defendant to have bloodshot, watery eyes. These observations led the officer to suspect the defendant to be driving while he was intoxicated. Based on this elevated suspicion, the officer was permitted to ask questions relating to DWI such as whether the defendant had consumed any alcohol (People v. Ellis, 62 NY2d 393 [1984] [officer was authorized to ask questions about a suspected criminal activity unrelated to the car stop based on his observation during the stop]; People v. Branden, 137 AD2d 697 [2d Dept 1988] [police was authorized to ask if the defendant had been drinking based on the officer's smell of alcoholic beverage from the defendant even though the defendant was stopped for weaving back and forth across the roadway]). Based on the defendant’s admission that he had been drinking earlier in the day, the police offered a PBT to the defendant (People v. Clivilles, 29 Misc 3d 140[A] [App Term, 1st Dept 2010] [police observation of the defendant's watery eyes, slurred speech, smell of alcohol on his breath coupled with his admission to alcohol consumption gave a proper basis for the police to administer the portable breathalyzer test]). The PBT result revealed that his blood alcohol level was over the legal limit. Based on the odor of alcoholic beverage, exhibition of signs of intoxication such as bloodshot, watery eyes, the defendant’s own admission, and the PBT result, the police had probable cause to arrest the defendant. Therefore, the defendant’s motion to suppress the statements from the scene and other tangible fruits from his arrest based on lack of probable cause is denied.Defendant’s Motion to Suppress Statement Evidence is Denied as the Defendant’s Statements Were Made VoluntarilyIn this case, the defendant’s statements at issue are those statements that were made to Officer Hobson contemporaneously with his arrest on March 4, 2018, at approximately 03:04 a.m. at the corner of Walton Avenue and East 183rd Street, Bronx County. These statements were:“No, I haven’t been drinking”;“Yes, I will take the PBT test”; and“I had a few drinks, but it was earlier, like three in the afternoon. I shouldn’t have dropped this guy off.”In a Huntley hearing, the burden is on the prosecution to first establish the legality of the police conduct (Whitehurst, supra; People v. Wise, supra) and the defendant bears the ultimate burden of showing the illegality of the police conduct (People v. Berrios, supra; People v. Di Stefano, supra). The People must also prove that the alleged statements were made voluntarily beyond a reasonable doubt (People v. Huntley, 15 NY2d 72 [1965]; Whitehurst, 25 NY2d at 391). Any statement made during a custodial interrogation by the defendant without being informed of his or her constitutional rights must be suppressed (Miranda v. Arizona, 384 US 436 [1966]).In this case, the People failed to elicit any testimony about the first noticed statement. As they did not meet their burden of production, it must be precluded from being used at trial (see People v. Tony, 30 Misc 3d 867, 877 [Sup Ct, Bronx County 2010] ["Since the People provided no evidence regarding the voluntariness of defendant's first oral statement, it must be suppressed"]; People v. Holley, 26 NY3d 514 [2015] [same]; People v. Ortiz, 90 NY2d 533 [1997] [same]).However, a different result is required for the second and third noticed statements. Sufficient evidence was adduced at the hearing to establish that the statements, “Yes, I will take the PBT test” and “I had a few drinks, but it was earlier, like three in the afternoon,” were made voluntarily by the defendant. Officer Hobson testified that when he smelled alcohol from the defendant’s car, he asked the defendant if he had been drinking. The defendant answered that he had some drinks earlier. Then, the officer asked the defendant to get out of the car and offered the PBT. The defendant consented to take it.To begin, the officer’s question to the defendant was not improper. If the officer makes observations during a car stop that justify a reasonable suspicion of criminal activity, he is allowed to make an investigatory inquiry of the motorist beyond the scope of the car stop (see e.g. People v. Ellis, supra [holding that the officer was authorized to ask questions unrelated to the car stop based on the officer's observations during the stop which eventually led to the defendant's arrest for a pistol in the locked glove compartment of the car]; People v. Lee, 6 AD3d 1235, 1236 [4th Dept 2004] ["The police were initially justified in stopping defendant based on a traffic infraction, and their continued detention of defendant was justified by an officer's observation of what appeared to be a body in plain view in the back seat of defendant's vehicle"]; People v. Bongiorno, 243 AD2d 719 [2d Dept 1997]). Moreover, although the defendant was not free at the time of the officer’s questions, Miranda warnings were not necessary prior to the officer’s questions. The stop in this case was an ordinary car stop, which does not require the police to administer a Miranda warning (Berkemer v. McCarty, 468 US 420, 440 [1984] ["[The] noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda”]; People v. Branden, 137 AD2d 697 [2d Dept 1988] [officer's question of whether the defendant had been drinking during a car stop, which prompted the defendant's response, "I had a few beers before," did not require a Miranda warning]).Finally, while the statements as they were adduced at the hearing were not entirely identical to the statements contained in the CPL §710.30 (1) (a) notice, the People are not required to give a verbatim recitation (see e.g. People v. Steisi, 257 AD2d 582, 582 [2d Dept 1999] ["The notice provided by the People adequately apprised the defendant of the sum and substance of the oral statement and a verbatim recitation of the statement was not required"]; People v. Rivenburgh, 1 AD3d 696, 699 [3d Dept 2003] ["verbatim recitation of every utterance was not required"]). The statements at the hearing were “substantially identical” to the statements in the notice (People v. Cooper, 78 NY2d 476 [1996]; see also People v. Velasquez, 33 AD2d 352 [1st Dept 2006] [defendant's statement introduced at trial was "substantially identical" to the noticed statement]; People v. Valdivia, 236 AD2d 225 [1st Dept 1997]; People v. Kelly, 200 AD2d 440 [1st Dept 1994]). As there was ample evidence to support that the statements in question were made voluntarily, they are not suppressed.Finally, with regards to a portion in the third noticed statement, “I shouldn’t have dropped this guy off,” the Court finds that the statement was made voluntarily and spontaneously. The record at the hearing demonstrated that the statement was not made in response to any questions from the police (People v. Davis, 224 AD2d 541 [2d Dept 1996] [defendant's statement at his home that was made in response to merely being informed that the detective was investigating a shooting before any other conversation ensued was spontaneous]). Accordingly, that portion of the statement is not suppressed.For these reasons, the Court denies the defendant’s motion to suppress in its entirety except the defendant’s statement, “No, I haven’t been drinking,” which is suppressed by the People’s failure to meet their burden of production.This constitutes the decision and order of this Court.Dated: June 6, 2019Bronx, New York
