People v. Collins

INTRODUCTION   Following a motor vehicle accident, defendant was arrested for several driving while intoxicated related offenses. He contends that at the pretrial suppression hearing, the People failed to show that the police had probable cause to arrest defendant or that defendant voluntarily consented to a blood test to determine whether he had alcohol in his system. For the reasons stated below, the Court disagrees with defendant on both counts. PROCEDURAL BACKGROUND Defendant Michael C. Collins is charged with Aggravated Driving While Intoxicated, Driving While Intoxicated Per Se, Driving While Intoxicated under the Common Law, and two traffic infractions. Upon defendant’s motion to suppress the evidence of his intoxication and the statements he made to the police, a pretrial hearing was held on September 22, 2020. At the conclusion of the hearing, the Court denied defendant’s motions to suppress the pre-arrest evidence of defendant’s intoxication and his statements to the police. However, the Court reserved decision on defendant’s motion to suppress the results of his post-arrest blood test pending further argument. On October 13, 2020, before the Court decided defendant’s motion to suppress the results of his blood test, defendant filed a motion to reargue the Court’s ruling that the police had probable cause to arrest defendant. The People submitted their response to defendant’s motion on November 9, 2020. FACTS At about 1:00 a.m. on June 13, 2020, Rochester Police Officer Connor Davidson and his partner, Officer Brongo, responded to a police call about a vehicle that had crashed into a paint store on the corner of South Clinton Avenue and Alexander Street in Rochester, New York. When he arrived, Officer Davidson saw the vehicle that had crashed into the building. He also saw the emergency personnel who were on the scene “assisting to get the driver of the vehicle out of the vehicle.” 9/22/2020 Hearing Transcript, p. 11. After extracting the driver from the vehicle, the emergency personnel placed the driver on the ambulance gurney. At the hearing, Officer Davidson identified defendant as the man whom he had seen being removed from the damaged vehicle and placed onto the gurney. Officer Davidson did not speak to defendant. Like Officers Davidson and Brongo, Rochester Police Officer Albert Weech heard the police call regarding the motor vehicle accident and arrived on the scene at approximately 1:00 a.m. Upon his arrival, Officer Weech saw defendant on the gurney. He also saw emergency personnel and a police officer, whom he did not identify, talking to defendant. After he arrived, Officer Weech was eventually given defendant’s driver’s license. He approached defendant and asked him if he was hurt. Defendant responded that he was not. Defendant also told Officer Weech that he had given his driver’s license to another police officer. While they spoke, Officer Weech smelled a strong odor of an alcoholic beverage on defendant’s breath, observed that defendant’s speech was somewhat slurred, and saw that defendant’s eyes were bloodshot, watery, and glassy. Based on his observations, Officer Weech asked defendant how much he had had to drink that night. Defendant replied that he had consumed “more than he should have.” 9/22/2020 Hearing Transcript, p. 24. At Officer Weech’s request, defendant took a roadside prescreen test that indicated the presence of alcohol in defendant’s system. Officer Weech then arrested defendant for Driving While Intoxicated. 9/22/2020 Hearing Transcript, p. 24. Subsequently, while still at the scene and again at the hospital, Officer Weech asked defendant “if he would consent to offering a sample of his blood to determine the blood alcohol content.” 9/22/2020 Hearing Transcript, pp. 28-29. No testimony was elicited regarding defendant’s response to Officer Weech’s request at the accident scene. After he arrived at the hospital, however, defendant agreed, in the presence of a nurse, to provide a sample of his blood for testing at Officer Weech’s request. Officer Weech then read aloud to defendant the words on the Blood Consent Form, “I have granted permission for blood samples to be taken.” People’s Exhibit 2. At 1:48 am on June 13, 2020, defendant signed the Consent Form. The nurse drew blood samples from defendant at 1:51 a.m. When he spoke to defendant both before and after defendant’s arrest, Officer Weech did not draw his gun, did not use force, did not threaten defendant, and did not make any promises to try to get him to speak with him or to agree to provide blood samples. Defendant did not ask to speak to a lawyer at any time during his conversations with Officer Weech. LEGAL DISCUSSION Defendant’s Motion to Reargue Upon filing a motion to reargue a court’s decision, a movant must show that the court overlooked a particular relevant fact or misapprehended applicable law. See NY C.P.L.R. §2221(d). Defendant asserts that the Court’s September 22, 2020 decision misapprehended the applicable law governing the Court’s ability to draw inferences regarding police officers’ communications with each other at the scene of an investigation. Specifically, defendant contends that the Court improperly inferred from the circumstantial evidence that Officer Weech had a reasonable basis to believe that defendant was the crashed vehicle’s driver when he placed defendant under arrest.¹ Defendant acknowledges that Officer Davidson testified that he saw the driver removed from the crashed vehicle and placed on the ambulance gurney. He points out, though, that there was no testimony that Officer Davidson spoke with Officer Weech about his observations. Defendant also points out that the People adduced no direct evidence that Officer Weech had a reasonable basis to believe that the man on the gurney was the vehicle’s operator before he arrested defendant.² Under these circumstances, according to defendant, it was improper for the Court to infer Officer Weech had learned from another officer that defendant was the vehicle’s driver before he arrested defendant. Defendant is correct that that the People presented no direct evidence regarding how Officer Weech learned that defendant was the crashed vehicle’s driver. Nonetheless, despite defendant’s argument to the contrary, however, it is legally proper for the Court to infer Officer Weech’s knowledge of defendant’s identity as the driver from the circumstantial evidence presented at the hearing. In People v. Ramirez-Portoreal, 88 NY2d 99, 114 (1996), the Court of Appeals affirmed that the People are entitled to rely on circumstantial evidence to show that a police officer communicated to an arresting police officer the information necessary to establish probable cause to arrest a defendant. In other words, according to the Ramirez-Portoreal Court, a “suppression court…is not precluded from drawing the inference from…circumstantial evidence that [one police officer] conveyed his information to [the arresting police officer].” People v. Ramirez-Portoreal, 88 NY2d at 114. See People v. Herbert, 147 AD3d 1208, 1209 (3rd Dep’t 2017); People v. Martinez, 147 AD3d 642, 642-43 (1st Dep’t), lv. denied 29 NY3d 1034 (2017); People v. Walker, 25 AD3d 504 (1st Dep’t 2006). Thus, for example, in one of the three consolidated cases in People v. Ramirez-Portoreal, one police officer testified at the probable cause hearing that he and a fellow officer were stationed on a rooftop. While there, the first officer watched defendant’s actions on the sidewalk below through binoculars, while the second officer stood guard to make sure no one approached from the rear. As he watched, the first officer saw defendant engage in what appeared to be two separate drug sales. Both officers left the roof, got into their patrol car, and drove to defendant’s location. The second officer left the patrol car and detained defendant while the first officer searched a trash pile where he had seen defendant place the drugs. There was no testimony that the first officer communicated his observations to the second officer who detained defendant. See People v. Ramirez-Portoreal, 88 NY2d at 107. Consequently, because of the lack of such direct evidence, both the hearing court and the intermediate appeals court held that the evidence was insufficient to establish that the second officer had probable cause to detain defendant. See People v. Ramirez-Portoreal, 88 NY2d at 107-08. On appeal, the Court of Appeals unanimously disagreed with the two lower courts. Instead, the Court pointed to the circumstantial evidence demonstrating that the first officer conveyed his observations to the second officer before the second officer detained defendant. Specifically, the Court noted that the two officers had been on the rooftop together when the first officer observed defendant’s actions, they both drove to defendant’s location together, and the second officer immediately approached defendant when the patrol car stopped. According to the Court, these facts comprised sufficient circumstantial evidence to require the inference that the first officer had communicated his observations to the second detaining officer, thereby providing the second officer with probable cause to detain defendant. People v. Ramirez-Portoreal, 88 NY2d at 114. As in People v. Ramirez-Portoreal, the circumstantial hearing evidence in this case is sufficient to permit the Court to infer that before Officer Weech arrested defendant for driving while intoxicated, either Officer Davidson or Officer Brongo told him that defendant was the crashed vehicle’s driver. Officers Davidson and Brongo, who were in the same patrol car, were the first police officers to arrive on the scene of the accident. 9/22/2020 Hearing Transcript, pp. 10-11. When they arrived, Officer Davidson, and by inference Officer Brongo, saw the driver being extracted from the crashed car and placed on the gurney. They were the only police officers on the scene until Officer Weech arrived a few minutes later. 9/22/2020 Hearing Transcript, pp. 10-11. When he arrived, Officer Weech saw another police officer talking to defendant on the gurney. 9/22/2020 Hearing Transcript, p. 21. Because Officers Davidson and Brongo were the only officers at the scene when Officer Weech arrived, the “[C]ourt [is] not precluded from drawing the inference from the circumstantial evidence presented” that Officer Brongo was the officer whom Officer Weech saw talking to defendant.³ People v. Ramirez-Portoreal, 88 NY2d at 114. Moreover, defendant gave his driver’s license to a police officer, 9/22/2020 Hearing Transcript, p 24, and Officer Weech was given defendant’s driver’s license. 9/22/2020 Hearing Transcript, pp. 21-22. Although Officer Weech could not recall who gave him defendant’s license, the “[C]ourt [is] not precluded from drawing the inference from the circumstantial evidence presented” that defendant gave Officer Brongo his license, and that Officer Brongo, in turn, gave Officer Weech defendant’s driver’s license. Additionally, the “[C]ourt [is] not precluded from drawing the inference from the circumstantial evidence presented” that Officer Brongo, who assisted with the investigation (9/22/2020 Hearing Transcript, p. 13), spoke with Officer Weech about his observations before Officer Weech spoke to defendant. People v. Ramirez-Portoreal, 88 NY2d at 114. See People v. Herbert, 147 AD3d at 1209 (although the arresting officer had no personal knowledge of defendant’s alleged criminal activity, his testimony that he had been “present at the scene” was sufficient to permit the suppression court to infer from the circumstantial evidence that he had received sufficient information of defendant’s criminal activity to give him probable cause to arrest defendant); People v. Martinez, 147 AD3d at 643 (although the arresting officers did not testify that they heard the police transmission regarding possible stolen property in a minivan, the circumstantial evidence of the arresting officers’ actions in stopping the minivan permitted the reasonable inference that the arresting officers heard the police transmission). Arguing otherwise, defendant observes that in People v. Hernandez, 187 A,D.3d 1502 (4th Dep’t 2020), the Fourth Department held that the circumstantial evidence adduced at the pretrial hearing was insufficient to raise a reasonable inference that the police officers who arrested the purported purchaser of illegal drugs at one location had communicated their observations to the police officers who detained defendant, the purported seller at a different location. The Hernandez Court did so because two separate police teams at two separate locations arrested the buyer and seller simultaneously. The Court concluded that under these circumstances, an inference of inter-police communications could not be made because it would have been impossible for the police officers who arrested the buyer to have communicated probable cause information to the police officers who arrested defendant before defendant was arrested. See People v. Hernandez, 187 AD3d at *2. In contrast to the Hernandez facts, in this case Officer Weech arrived at the scene of the accident within minutes of Officers Davidson and Brongo’s arrival, and both Officer Brongo and Officer Weech were involved in the investigation of the accident at the same scene at the same time. Consequently, unlike the circumstances in Hernandez, the Court’s inference that Officer Weech learned that defendant was the vehicle’s operator from Officer Davidson or Officer Brongo before he arrested defendant is reasonable. Defendant also cites People v. Powell, 101 AD3d 756 (2nd Dep’t 2012) and People v. Hightower, 176 AD3d 865 (2nd Dep’t 2019) as support for his assertion that the Court’s inferences are not permissible. Neither decision supports defendant’s position. The Powell Court concluded that the People failed to show that the police had probable cause to arrest defendant because there was no direct evidence that the police who stopped and detained defendant “actually received any information from another officer who may have possessed probable cause.” People v. Powell, 101 AD3d at 758. In this case, however, as in People v. Ramirez-Portoreal, a finding that the police officers communicated with each other is reasonably and appropriately inferred from the circumstantial evidence despite the absence of direct evidence of communications. Moreover, the Powell decision does not set forth any facts adduced at the pretrial hearing. It is therefore impossible to determine whether the circumstances of defendant’s arrest in that case have any relevance to the circumstances of defendant’s arrest in this case. People v. Hightower is also inapposite. In Hightower, the only evidence adduced at the pretrial hearing related to defendant’s arrest was a police officer’s testimony that he had been told that “defendant had been arrested on a different matter.” People v. Hightower, 176 AD3d at 865-66. There was no evidence whatsoever regarding the circumstances of defendant’s arrest on that “different matter.” Under those circumstances, the Hightower Court held that the People failed to meet their initial burden of showing that the police had probable cause to arrest defendant in the first instance. Unlike the evidence in Hightower, the pretrial hearing evidence regarding the circumstances of defendant’s arrest in this case demonstrates that defendant was arrested at the scene of the alleged crime by an officer who was directly involved in investigating that alleged crime within half an hour of that alleged crime. Such evidence regarding the circumstances of defendant’s arrest is starkly different than the total absence of the circumstances of defendant’s arrest in Hightower. In this case, as in People v. Ramirez-Portoreal, “it would have been better practice [for the People] to elicit direct evidence of a communication between the officers.” People v. Ramirez-Portoreal, 88 NY2d at 114. Nonetheless, as in People v. Ramirez Portoreal, it is reasonable in this case to “draw[ ] the inference from the circumstantial evidence presented that [either Officer Davidson or Officer Brongo] conveyed his information to [Officer Weech].” People v. Ramirez-Portoreal, 88 NY2d at 114.⁴ Defendant’s Consent to a Blood Test When the People seek to introduce evidence of the results of a defendant’s allegedly voluntary blood test, they bear a “heavy burden” of demonstrating that defendant’s consent was freely and voluntarily given, and was not the product of overbearing official pressure. People v. Gonzalez, 39 NY2d 122, 128 (1976). Whether the People have satisfied their burden depends upon the totality of all the circumstances. People v. Gonzalez, 39 NY2d at 128; People v. Marietta, 61 AD3d 997, 998 (2nd Dep’t 2009). When Police Officer Weech first spoke to defendant at the scene of the accident, he asked defendant whether he was hurt. Defendant replied that he was not. Although defendant’s speech was slurred at times, his answers to Officer Weech’s questions were responsive to the questions asked. In response to Officer Weech’s inquiry, defendant agreed to take a roadside prescreen test, and did so. While still at the scene of the accident, Officer Weech placed defendant under arrest and asked defendant if he would agree to give a blood sample for testing at the hospital. Defendant replied that he would. 9/22/2020 Hearing Transcript, pp. 28-29. When defendant and Officer Weech arrived at the hospital, and after the initial triage, Officer Weech again asked defendant if he was willing to give a blood sample for testing. Defendant again responded that he would do so. 9/22/2020 Hearing Transcript, pp. 30-31. At that point, Officer Weech recited out loud to defendant, “I have granted permission for blood samples to be taken,” a capitalized statement on the blood sample Consent Form. At 1:48 am, defendant signed the Consent Form, indicating that he had granted permission for blood samples to be taken. See People’s Exhibit 2. Three minutes later, as Officer Weech watched, a nurse at the hospital took a sample of blood from defendant. While speaking to defendant at the accident scene and again at the hospital, Officer Weech did not draw his weapon, he did not make threats or use force, and he did not make any promises to defendant in order to pressure him into agreeing to give a blood sample. 9/22/2020 Hearing Transcript, pp. 25, 29-30. During his conversations with Officer Weech, defendant did not say or do anything that suggested that he was unable to understand Officer Weech’s questions; he did not say or do anything that indicated that he did not understand Officer Weech’s questions; he did not ask to speak to a lawyer; and he did not say or do anything that suggested that he declined to provide his blood samples for testing. In comparable circumstances, courts uniformly have found that the People met their heavy burden of showing that defendants’ blood samples were voluntarily and freely given. See, e.g., People v. Centerbar, 80 AD3d 1008, 1010 (3rd Dep’t 2011) (despite his significant injuries, defendant was conscious and responsive when he consented to a blood test); People v. Craig, 262 AD2d 1074 (4th Dep’t), lv. denied 93 NY2d 1016 (1999) (despite his significant injuries, defendant was coherent and his answers to questions were response when he consented to a blood test); People v. Bowen, 229 AD2d 954, 955 (4th Dep’t), lv. denied 88 NY2d 1019 (1996) (despite his serious injuries, defendant was coherent and responsive when he consented to a blood test); People v. Osburn, 155 AD2d 926, 926-27 (4th Dep’t 1989) (despite defendant’s head wound and initial refusal to provide a blood sample, defendant was conscious and responsive when she changed her mind and consented to a blood test). As in those cases, the totality of the circumstances in this case demonstrates that defendant in this case voluntarily and freely consented to provide his blood sample. Citing People v. Skardinski, 24 AD3d 1207 (4th Dep’t 2005), defendant nonetheless contends that defendant’s consent cannot be deemed voluntary because Officer Weech did not advise defendant that he had a right to refuse to provide a blood sample or of the consequences of refusing to do so. Skardinski neither stands for nor suggests this proposition. Rather, the Skardinski Court held that a combination of factors demonstrated that defendant did not voluntarily consent to a blood sample, including defendant’s serious injuries; defendant’s receipt of morphine when the State Trooper spoke with her; the Trooper’s inaccurate warnings to defendant;⁵ defendant’s failure to respond or indicate that she understood the Trooper’s warnings; the nurse’s statement to defendant that “we’re going to take your blood” and “[w]e need you to consent…to do it”; the nurse’s subsequent demand that defendant sign the consent form; and defendant’s lopsided signature on the consent form. People v. Skardinski, 24 AD3d at 1208. None of those factors exists in this case. Contrary to defendant’s argument, whether a defendant is advised of his or her right to refuse consent is merely one factor among many to be considered; the existence of that factor does not render involuntary a defendant’s otherwise voluntary consent. See People v. Brinkley, 174 AD3d 1159, 1164 (3rd Dep’t), lv. denied 34 NY3d 979 (2019). Accordingly, as the Court held in People v. Muhammad, 181 A,D,3d 1182, 1183 (4th Dep’t 2020), “Although the police officers did not advise defendant of his right to refuse consent to providing a…sample, that fact does not, by itself, negate the consent otherwise freely given” [internal quotation marks and citations omitted]. See People v. Gallo, 133 AD3d 1088 (3rd Dep’t 2015), lv. denied 27 NY3d 1151 (2016); People v. Parker, 133 AD3d 1300, 1301 (4th Dep’t 2015), lv. denied 27 NY3d 1154 (2016), reconsideration denied 28 NY3d 1030 (2016); People v. Osborne, 88 AD3d 1284, 1285 (4th Dep’t 2011), lv. denied 19 NY3d 999 (2012), reconsideration denied 19 NY3d 1104 (2012). As in those cases, Officer Weech’s failure to advise defendant in this case of his right to refuse his consent does not nullify defendant’s otherwise freely given consent to provide his blood sample. CONCLUSION For the reasons discussed above, defendant has failed to demonstrate that the Court overlooked a relevant fact or misapprehended applicable law when it previously denied defendant’s motion to suppress evidence. In addition, the People have satisfied their heavy burden of demonstrating that defendant’s consent to provide a blood sample was freely and voluntarily given. Accordingly, defendant’s motion to reargue the Court’s September 22, 2020 decision that the evidence sufficiently demonstrated probable cause to arrest defendant is denied. Further, defendant’s motion to suppress evidence of the results of his blood test is denied. SO ORDERED. Dated: December 4, 2020