DECISION AND ORDER The Defendant is charged by criminal complaint with Operating a Motor Vehicle While Under the Influence of Alcohol or Drug in violation of V.T.L. §1192(3); V.T.L. §1192(2-a)(a); V.T.L. §1192(2); and V.T.L. §1192(1), stemming from an arrest of the Defendant that occurred on February 25, 2018, at approximately 5:06 A.M. at the Southeast corner of Watson Avenue and White Plains Road, County of the Bronx, State of New York. On May 17, 2018, the Court dismissed count two, V.T.L. §1192(2-a)(a) and count three, V.T.L. §1192(2), upon application by the People. The Defendant was arraigned on February 25, 2018, and during the Defendant’s arraignment, the People served statement notice pursuant to C.P.L. §710.30(1)(a), indicating their intention to introduce at trial the Defendant’s statements to Police Officer Hidalgo Jhunaiss on February 25, 2018, at approximately 5:15 A.M. in the Southeast corner of Watson Ave and White Plains Road: “I WAS GOING TOWARDS BRUCKNER BOULEVARD”. “I DON’T KNOW WHAT HAPPENED”. “I DON’T REMEMBER WHEN I LOST CONTROL.” The Defendant moved to suppress the Police Officers’ observations, statements made by the Defendant to the police, the Portable Breath Test (“PBT”) results and the Defendant’s refusal. The court granted all hearings. The Court conducted a combined Mapp/Dunaway/Huntley/Ingle/Johnson/Atkins/Ayala/ Refusal hearing on July 2, 2019, which was continued on September 17, 2019. During the People’s case in chief, the People called Police Officer Jhunaiss Hidalgo as their only witness The People did not produce any other evidence at the hearing. The Defendant did not testify nor did the Defendant call any witness. Admitted into evidence as Exhibit “A” on Defendant’s case was a map of the scene referenced in the complaint. Following the conclusion of Officer Hidalgo’s testimony, the hearing was adjourned to September 17, 2019, for the People to produce a witness for the Refusal hearing. On that date, the People, by ADA Kimberly Gay, stated on the record that they would be unable to prove that the Defendant refused the breathalyzer test, and conceded that the Defendant did not refuse to take the breathalyzer test. The Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT Police Officer Jhunaiss Hidalgo credibly testified as follows: Police Officer Hidalgo testified that she is an officer at the 43rd precinct and has been employed as a New York Police Officer for seven years and a half years. During this time, she has made approximately 72 arrests and has assisted in over one hundred arrests. Officer Hidalgo stated that of those arrests, she has either made or participated in approximately ten where the person was suspected of driving under the influence of alcohol. On February 25th, 2018, at approximately 5:22 a.m., Officer Hidalgo was in uniform and on patrol with her partner Officer Piekarski. She was working the 11:15 p.m. to 7:40 a.m. tour on that date. Officer Hidalgo testified that she is familiar with the southeast corner of Watson Avenue and White Plains Road because she patrols that area. White Plains Road runs north and south, and Watson has two lanes and is a public roadway. Officer Hidalgo stated that the lighting conditions on February 25th, 2018, at approximately 5:22 a.m., were “night lighted” and the street lights were on. Officer Hidalgo testified that she proceeded to the vicinity of Watson Avenue and White Plains Road on that date and time following receipt of a 9-1-1 call of a vehicle accident. When Officer Hidalgo first arrived at the scene of the accident, she observed an ambulance and two vehicles; one vehicle was crashed into another vehicle that was parked. The parked vehicle was a Honda CRV, facing north on White Plains Road, and the other vehicle was a four door, black Ford sedan. was facing south in a northbound lane on White Plains Road. Officer Hidalgo observed damage to the black Ford sedan in that it and had scratches and dents all over it and the front windshield was shattered and the airbags deployed. The trunk was opened, and there was debris all over the floor. Officer Hidalgo learned that the owner of the black Ford was the Defendant Thomas Duren. She concluded that he was the driver of that car as he was the only person other than law enforcement and FDNY at the scene and he was in the ambulance. There was no testimony regarding any alleged damage to the Honda CRV. After observing the above, Officer Hidalgo had an opportunity to speak to the Defendant and asked him questions while he was in the ambulance. She asked the Defendant where he was going, and he responded “I was going toward Bruckner Boulevard. I don’t know when I lost control of the vehicle.” Officer Hidalgo stated that when she was speaking with the Defendant she noticed that the Defendant had red eyes. She also stated that at times she couldn’t understand what the Defendant was saying, so she had to get closer to him. The Officer then notified that there was “a very strong smell of alcohol” when the Defendant spoke. She added that she could not understand what the Defendant was saying as his speech was slurred. He was lying on a stretcher in an ambulance at the time she was speaking to him. At the time the Defendant made the noticed statements he was not in handcuffs, Officer Hidalgo and her partners service weapons were in their holsters, neither Officer Hidalgo or her partner made promises to the Defendant, nor was the Defendant coerced or threatened before making the statements. Based on her observations of the Defendant on February 25th, 2018 and her training and experience, Officer Hidalgo concluded that the Defendant was intoxicated. After Officer Hidalgo spoke with the Defendant and made the stated observations, the Defendant was placed under arrest for Driving Under the Influence of Alcohol. He was then transported to Jacobi Hospital. Officer Hidalgo further testified that the highway Officer Blinn came to the hospital and administered the portable breathalyzer test (“PBT”) at the hospital. Officer Hidalgo testified that she was present during the test and the Defendant consented to take the test and the result of the test was 0.18 blood alcohol content. According to Officer Hidalgo, after the Defendant took the PBT, Officer Blinn asked him another question “about the blood” and then read him his Miranda rights. Officer Hidalgo stated that at this point, the Defendant did not respond further, he closed his eyes, and did not move. CONCLUSIONS OF LAW At a suppression hearing, the People have the initial burden of establishing the legality of the police conduct (People v. Berrios, 28 N.Y. 2d 361 [1971]). The Defendant has the ultimate burden of showing that the police acted unlawfully (Id.). In determining whether probable cause exists to arrest someone for violating a provision of V.T.L. §1192 “the only valid inquiry…is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the arresting Officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor” (People v. Farrell, 89 A.D. 2d 987, 989 [2d Dept. 1982]; People v. Gingras, 22 Misc. 3d 22, 23 [App. Term, 2d Dept. 2008]). In making this determination, a Police Officer may rely upon various forms of information, including, but not limited to, the manner in which the Defendant is driving, visual observations of the Defendant, sobriety performance tests, and portable breath test results (see People v. Berg, 92 N.Y. 2d 701 [1999]; see also C.P.L. §70.10[2]; V.T.L. §1194[3]). PROBABLE CAUSE TO ARREST THE DEFENDANT At the hearing, Officer Hidalgo testified that she responded to a 911 call where an accident and when she first arrived on the scene she observed an ambulance and a black Ford sedan, which she determined to belong to the Defendant crashed into a parked car, with significant damage to the black Ford, including a shattered windshield and deployed airbags. Officer Hidalgo further testified that when she spoke to the Defendant she noticed that the Defendant had “red eyes”, and she smelled a “very strong smell of alcohol” emanating from him when he spoke. Officer Hidalgo further testified that the Defendant’s speech was slurred and that she “couldn’t make out what he was saying”. Based on Officer Hidalgo’s credible testimony about her observations of the Defendant and the car accident, her training and experience, the Court finds that Officer Hidalgo had probable cause to arrest the Defendant for Driving While Intoxicated. Accordingly, the Defendant’s motion to suppress the PBT results, the Police Officer’s observations, the statements made by the Defendant to the police officers, and the Defendant’s on the ground that such evidence was the fruit of an unlawful arrest is DENIED (see Dunaway v. New York, 442 U.S. 200 [1979]). NOTICED STATEMENTS The Defendant also moves for suppression of the statements allegedly made by the Defendant to Officer Hidalgo in that they were not voluntarily. At a hearing to suppress statements made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the Defendant’s statements were voluntary (see People v. Anderson, 42 N.Y. 2d 35, 38 [1977]; People v. Huntley, 15 N.Y. 2d 72 [1965]; People v. Johnson, 139 A.D. 3d 967 [2d Dept 2016]) and that the defendant, if subjected to custodial interrogation, knowingly, intelligently, and voluntarily waived his…Miranda rights (see Miranda v. Arizona, 384 U.S. 436 [1966]) prior to making the statements (see People v. Williams, 62 N.Y. 2d 285, 288 289 [1984]). Here, the People served statement notice pursuant to C.P.L. §710.30(1)(a), indicating their intention to introduce at trial the Defendant’s statements to Police Officer Hidalgo Jhunaiss on February 25, 2018, at approximately 5:15 A.M. in the Southeast corner of Watson Ave and White Plains Road: “I WAS GOING TOWARDS BRUCKNER BOULEVARD”. “I DON’T KNOW WHAT HAPPENED”. “I DON’T REMEMBER WHEN I LOST CONTROL.”. During the suppression hearing, Officer Hidalgo testified that that the Defendant stated “I was going toward Bruckner Boulevard. Don’t know when I lost control of the vehicle.” Officer Hidalgo further testified that at the time the Defendant made the noticed statements to her the Defendant was not promised anything, coerced or threatened. The Court notes that although the Defendant was in an ambulance when he made these statements, there was no evidence presented at the hearing that the Defendant was suffering from any such pain or discomfort such that he did not know what he was doing when he made the statement. People v. Mercado, 198 A.D.2d 380 (1993) (see, People v. Pearson, 106 A.D.2d 588 [1984]). Although the Defendant cites to various cases in which the court found the statements to be involuntarily, the facts of those cases are clearly distinguishable to the facts in the instant case. Under the circumstances in this case, the interaction between the Defendant and Officer Hidalgo was purely investigatory as part of a temporary noncustodial roadside detention (see Berkemer v. McCarty, 468 U.S. 420 [1984]; People v. Alls, 83 N.Y. 2d 94 [1993]; People v. Gray, 148 A.D. 3d 557 [1st Dept 2017]). As such, no Miranda warnings were necessary, and the Court finds that the defendant’s statements were voluntarily made. Accordingly, the Defendant’s motion to suppress the noticed statements made pre-arrest is DENIED. Although these two statements vary slightly, they are substantially the same and any difference is not so significant as to cause the Defendant prejudice (see, People v. Laporte 184 A.D. 2d 803, 805, 584 N.Y.S.2d 662, lv. denied 80 N.Y. 2d 905, 588 N.Y.S. 2d 831, 602 N.E.2d 239). See People v. Perry, 203 AD2d 131 [1st Dept 1994], appeal denied 83 N.Y. 2d 970 [1994]; People v. Bowman, 211 A.D. 2d 590 [1st Dept 1995], lv denied 86 NY2d 732 [1995]; People v. Reid, 215 A.D. 2d 507 [2d Dept 1995], lv denied 86 N.Y. 2d 846 [1995]; People v. Peppard, 27 A.D. 3d 1143 [4th Dept 2006], lv denied 7 N.Y 3d 793 [2006]). In addition, any discrepancies can be further explored at trial by the Defense during cross examination. PBT The Defendant further moves to suppress the results of the PBT. It is well-settled that field sobriety tests, taken during temporary roadside detention, may be admitted into evidence regardless of whether the defendant has been issued Miranda warnings. (People v. Hager, 69 N.Y.2d 141, 142, 512 N.Y.S.2d 794, 505 N.E.2d 237; People v. Jacquin, 71 N.Y.2d 825, 826, 527 N.Y.S.2d 728, 522 N.E.2d 1026). People v. Berg, 92 N.Y.2d 701, 703, 708 N.E.2d 979, 980 (1999). A field sobriety test administered during a traffic stop is not “the equivalent of real or physical evidence protected under the Fifth Amendment.” People v. Havrish, 8 N.Y.3d 389, 393, 866 N.E.2d 1009, 1013 (2007). Under the foundation test set out in People v. Hargobind, the prosecution is required to establish all of the following: 1) that the device has been tested, producing a reference standard, within a reasonable time period prior to the test on the defendant; 2) that the device was calibrated and working properly on the day in question; 3) that these preparatory procedures, and the actual test on the defendant, were conducted by properly trained persons; and 4) that the field test on the defendant was conducted in conditions that would lead to scientifically reliable results, including, but not limited to, that the defendant was observed for at least fifteen to twenty minutes prior to the test, to ensure that he had not ingested alcohol or had other contaminants in his mouth which would skew the test results. People v. Hargobind, 34 Misc. 3d 1237(A), 950 N.Y.S.2d 725 (Crim. Ct. 2012). The party offering the results of a scientific test into evidence must inter alia, prove (a) that the testing device was in proper working order, and (b) that the test was properly administered See People v. White, 45 Misc. 3d 694, 990 N.Y.S.2d 403 (Crim. Ct. 2014); People v. Carrer-Gonzalez, 59 Misc. 3d 618, 71 N.Y.S.3d 339 [N.Y. Crim. Ct. 2018]). “While a breath test machine is presumed to be reliable, the results of the breath test administered on a defendant using the machine are inadmissible at trial unless the People demonstrate that the specific machine was in good working order…”. (Id). Here, there was no testimony elicited to support a finding of fact that the PBT device used on the Defendant was tested, properly calibrated and operable at the time the Defendant took the PBT. Accordingly, the People failed to lay the foundation that the PBT device was in good working order. See People v. White, 45 Misc. 3d 694, 990 N.Y.S.2d 403 (Crim. Ct. 2014); People v. Carrer-Gonzalez, 59 Misc. 3d 618, 71 N.Y.S.3d 339 [N.Y. Crim. Ct. 2018]). Thus, Defendant’s motion to suppress the PBT results is GRANTED. However, the Court still finds Officer Hidalgo’s testimony regarding her pre-arrest observations of the Defendant sufficient to establish that probable cause to arrest the Defendant for driving while intoxicated existed based on the totality of the circumstances. (see People v. Berg, 92 N.Y. 2d 701 [1999]; see also People v. Kucmierowski, 103 A.D. 3d 755 [2d Dept. 2013], lv denied 21 N.Y. 3d 1005 [2013]). REFUSAL On September 17, 2019, the People conceded on the record that they cannot meet their burden of proof with respect to the Refusal hearing. Thus, Defendant’s motion to suppress the Refusal is GRANTED. In conclusion, for the foregoing reasons, Defendant’s motion to suppress the Police Officer’s observations and statements made by the Defendant to Officer Hidalgo, and the PBT results on the ground that such evidence was the fruit of an unlawful arrest is DENIED; the Defendant’s motion to suppress the statements made pre-arrest is DENIED; the Defendant’s motion to suppress the PBT results is GRANTED; the Defendant’s motion to suppress the Refusal is GRANTED. This constitutes the Decision and Order of the court. Dated: October 11, 2019 Bronx, New York
