The defendant is charged with one (1) count of Driving While Intoxicated in violation of VTL §1192(3); one (1) count of Unregistered Motor Vehicle in violation of VTL §401.1A; and one (1) count of Refusal to Submit to a Chemical Test in violation of VTL §1193(A). A Huntley/Dunaway/ Refusal hearing was granted on consent.On June 3, 2019, this Court commenced and completed the aforementioned hearings. The People called as its witnesses Police Officers Damoy Green and Marlon Talbott of the Mount Vernon Police Department. The defendant did not call any witnesses, but presented video evidence. Upon the close of testimony, this Court heard oral argument from both the defendant and the People, and adjourned the matter until June 10, 2019 for decision.Officer Talbott testified that on March 24, 2019 at approximately 1:00 a.m., he was dispatched to a motor vehicle accident at the intersection of East Sanford Blvd. and Garden Avenue in the City of Mount Vernon, County of Westchester, State of New York. Upon arriving at the scene Officer Talbott testified that he witnessed two badly damaged vehicles near the aforementioned intersection. He further testified that he observed the defendant sitting on the street screaming, kicking and yelling. Officer Talbott stated that the defendant was acting erratic, and that he also smelled an odor of alcohol on the defendant’s breath. Officer Talbott then spoke to the driver of the vehicle that had rear end damage. Officer Talbott testified that he was informed by that driver, that he was stopped at a red light when the defendant drove his vehicle into his, causing his vehicle to pushed through the intersection. Officer Talbott was then instructed by his Sergeant, who was on the scene, to place the defendant under arrest for Driving While Intoxicated.Officer Greene testified that when he arrived on the scene he also noticed two badly damaged vehicles. The BMW vehicle had rear end damage, and the Chevy vehicle had front end damage. He observed two individuals seated in the BMW, and the defendant was in handcuffs sitting on the ground near the BMW. He testified that the defendant appeared to be intoxicated, with an odor of alcohol on his breath, had difficulty standing and bloodshot eyes. Officer Greene’s bodycam video which was introduced into evidence on cross examination as Defendant’s Exhibit “A”, was relatively dark and difficult to view. However, it showed the defendant being placed on the ground by fellow police officers, and the defendant screaming and bellowing for at least two minutes that the handcuffs on his wrists were too tight. The defendant was then shown being administered first aid for his injuries by an Emergency Medical Technician, before being placed in an ambulance for transportation to Jacobi Hospital in the Bronx.Officer Greene rode with the defendant and two EMT personnel in the ambulance to the hospital. While in transit to the hospital, Officer Greene’s bodycam captured one of the EMT workers explaining to the defendant that she needed information for the doctor, and asked him whether he had been drinking. Defendant answered that he was celebrating a bonus he received at work.Upon arriving at Jacobi Hospital, the defendant was administered his DWI Warnings and Miranda Warnings in his hospital room by Officer Greene. Officer Greene testified that after reading the DWI Warning from the Alcohol Influence Report form, marked in evidence as People’s Exhibit “2″, when the defendant was asked if he would submit to a chemical test to determine the alcohol or drug content of his blood, defendant responded “nah”. Officer Greene stated that he considered defendant’s response to be a refusal and signed his name to the report at 2:49 a.m. He then read the Miranda warnings to the defendant to which the defendant responded that he was hurting and needed to go to the bathroom. The video which was presented on cross examination revealed that after the DWI warnings were read, the defendant stated in response that he was in pain all over, asked to go to the bathroom and that he needed to focus. In response to the defendant’s statements, Officer Greene told the defendant he was going to take his statements as a refusal.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]).In the case at bar, Officer Talbott testified that upon investigation it was determined that defendant’s vehicle had rear ended a second vehicle while it was stopped at a red light. Officer Talbott further testified that he observed the defendant exhibit the common law indicia of intoxication: odor of alcohol emanating from the defendant’s breath, the defendant’s physical condition, slurred speech, bloodshot eyes and lack of motor coordination. Officer Talbott’s observations of the defendant’s condition coupled with the circumstances surrounding the motor vehicle accident, were sufficient to provide the officer with reasonable grounds to believe the defendant had been driving in violation of Vehicle and Traffic Law §1192 and provided probable cause for the arrest for driving while intoxicated. (See, People v. Kowalski, 291 AD2d at 669]; People v. Lamb, 235 AD2d 829, 830-831 [3d Dept 1997]; People v. Kalwiss, 6 Misc 3d 129[A], 2005 NY Slip Op 50057[U] [App Term, 9th & 10th Jud Dists 2005]; People v. McClaney, 135 AD2d 901 [3d Dept 1987]; CPL 140.10 [1].) The court accordingly finds that the defendant’s arrest was based on probable cause, and the objective evidence obtained as a result thereof is not subject to suppression on that ground.As to the Huntley issues raised at the hearing, the defendant in response to a question of the EMT in the ambulance, whether he had been drinking, stated that he was celebrating a bonus he received. Defendant seeks to have this statement suppressed.A defendant’s oral or written statements are inadmissible at trial if they were made involuntarily. (CPL 60.45 [1].) A statement is involuntary if obtained either “[b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement” or “[b]y a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him…in violation of such rights as the defendant may derive from the constitution of this state or of the United States.” (CPL 60.45 [2] [a], [b] [ii].)The Miranda rule protects the privilege against self-incrimination and, “because the privilege applies only when an accused is ‘compelled’ to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to ‘custodial interrogation’ ” (People v. Berg, 92 NY2d 701, 704 [1999]). The standard for assessing a suspect’s custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave (see People v. Harris, 48 NY2d 208, 215 [1979]; People v. Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). “The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response” (People v. Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985], quoting Rhode Island v. Innis, 446 US 291, 301 [1980]).Based on this record, there is no dispute that the defendant was in custody while being transported to the hospital, however, he was not being interrogated by Officer Greene. Defendant’s statement was not the result of interrogation by the police, but rather in response to a question by the EMT. As such, neither Miranda warnings nor CPL 710.30(1)(a) notice were required with respect to defendant’s statement in response to the EMT’s question regarding whether he had been drinking before the motor vehicle accident.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]).A review of Officer Greene’s bodycam video in the hospital room reflects that Officer Greene initially provided the defendant with a clear and unequivocal warning of the consequences associated with refusing to the chemical breath test. In fact, it appears Officer Greene read them directly from a form. The defendant’s response that he was in a lot of pain, that he wanted to use the bathroom and needed to focus exhibited confusion on his part, and this did not constitute a refusal to submit to the chemical test.Therefore, this Court finds that the People have not met their burden of demonstrating that a true refusal by conduct had occurred, and therefore the People are precluded from presenting any evidence at trial of defendant’s purported “refusal” to take the breathalyzer test.Even if the court were to find that there was a refusal, evidence of a defendant’s refusal must be “persistent” to be admissible (VTL 1194[2][f]). A refusal is considered persistent if the defendant was “offered a minimum of two opportunities to submit to the chemical test, at least one of which must take place after being advised of the sanction for refusal (People v. Pagan, 165 Misc 2d 255, 261 [Crim. Ct., Queens County 1995]). A refusal may consist of words or conduct (People v. Massong, 105 AD2d 1154, 1155 [4th Dept 1984]). Here, the bodycam videotape shows Officer Greene only offering defendant one opportunity to submit to the chemical test before determining the defendant refused to submit to the chemical test. Therefore, this Court further finds, assuming arguendo, that had a refusal occurred, such refusal would not have been persistent.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: June 5, 2019Mount Vernon, New York.
