DECISION AND ORDER Defendant is charged with violating Vehicle and Traffic Law §1192 (3), Driving While Intoxicated, and Vehicle and Traffic Law §1192 (1), Driving While Ability Impaired. A Dunaway/Ingle/Huntley/Refusal hearing was conducted before this Court on February 8, 2022. The Court makes the following findings and conclusions of law. Police Officer Daveonne Hamilton testified for the People. The Court finds the testimony of the witness to be credible and reliable. FINDINGS OF FACT The People presented the testimony of Police Officer Daveonne Hamilton. Officer Hamilton is a ten-year veteran of the New York City Police Department and is presently assigned to the Highway District Number 5 in Staten Island. His assignments include patrolling the highways, responding to accidents, issuing tickets, and making arrests for VTL violations. Officer Hamilton testified receiving training in connection with driving while intoxicated offenses in 2018, over the course of three days and further testified that he has participated in approximately one hundred DWI arrests. Officer Hamilton testified that on November 9, 2020, at approximately 2:30am, while working his tour from 10:15pm to 6:50am, he and his partner were patrolling the Staten Island Expressway in the vicinity of Clove Road in a marked police car. Specifically, while traveling eastbound on the Staten Island Expressway near Clove Road, Officer Hamilton observed a black Honda Accord parked on the westbound side of the Staten Island Expressway against the center median. Officer Hamilton and his partner pulled up behind the parked vehicle with their lights activated. Officer Hamilton and his partner approached the vehicle from the passenger side of the vehicle because the driver’s side of the vehicle was wedged against a highway barrier. Officer Hamilton testified that he observed one occupant in the vehicle who was seated in the driver’s seat while the engine was still running. He further observed that the vehicle had front-end damage to the bumper; additionally, the driver’s side and steering-wheel airbags were deployed. Officer Hamilton testified that the occupant of the vehicle was slumped over the steering wheel before he was asked to exit the vehicle. Once the driver exited the vehicle, he presented a driver’s license to the officer bearing the name Angelo Morales, the defendant herein. Officer Hamilton testified that he asked the defendant what happened and received a non-verbal response in the form of the defendant shrugging his shoulders. It was at this point in the officer’s testimony that the People entered Officer Hamilton’s body-worn-camera (BWC) footage into evidence as People’s Exhibit 1. The video showed that the defendant was asked a series of investigatory questions by Officer Hamilton. The defendant was then offered two separate field sobriety tests. Officer Hamilton and his partner each performed their own Horizontal Nystagmus Test, which tests for involuntary movements in the eyes, the results of which were inconclusive. The defendant was then offered a Portable Breath Test, which the defendant declined to take. Shortly thereafter the defendant was placed into handcuffs for his own safety after he failed to stand near the median and began walking into the lanes of traffic. While placing the defendant into handcuffs, Officer Hamilton observed a strong odor of alcohol on the defendant’s breath. He further observed that the defendant had bloodshot and watery eyes. The defendant was placed under arrest at 3:18am for driving while intoxicated and transported to the 120 Precinct where the Intoxicated Driver Testing Unit (IDTU) is located. Officer Hamilton and his partner escorted the defendant into the IDTU room wherein he was offered a breath test. It was at this time in Officer Hamilton’s testimony, that a copy of the Highway District Intoxicated Driver Examination paperwork was entered into evidence as People’s Exhibit 2. Specifically, Officer Hamilton testified that the following exchange took place in the IDTU room at 3:57am, as documented by People’s Exhibit 2: “Officer: You have been arrested for operating a motor vehicle while intoxicated or impaired, I would like you to take a breath test. Will you take the test ‘YES’ or ‘NO’? “Defendant: No.” When asked what the defendant had exactly said in response to that question, Officer Hamilton testified that the defendant responded “no, sir” and then “gave the middle finger gesture.” In response, Officer Hamilton proceeded to read to the defendant what are commonly known as “refusal warnings” from the Highway District Intoxicated Driver Examination (People’s Exhibit 2): “If you refuse to submit to the test, or any potion thereof, it will result in the immediate suspension and subsequent revocation of your driver’s license or operating privilege for a minimum period of one year, whether or not you are found guilty of the charges for which you have been arrested. In addition, your refusal to submit to a test, or portion thereof, can be introduced as evidence against you at any trial, proceeding or hearing resulting from the arrest. I ask you again, will you take a breath test ‘YES’ or ‘NO’?” Officer Hamilton testified that while the defendant did not verbally answer yes or no, he made the middle finger gesture. Officer Hamilton read the refusal warnings again to the defendant and again received the middle finger gesture in response. The BWC video shows that the defendant raised the middle fingers of both hands, pointed them at the camera and then at Officer Hamilton. Thereafter, Officer Hamilton deemed the defendant’s action a refusal by conduct and memorialized the defendant’s refusal by checking off the “NO” box on the Highway District Intoxicated Driver Examination paperwork (People’s Exhibit 2). The People introduced the IDTU video recording into evidence as People’s Exhibit 3, which depicted the foregoing interactions between the defendant and the officers. The only portion of the video that was played at the hearing was from the beginning of the recording to the 3:00 minute mark. Officer Hamilton testified that based on his observations of the defendant, as well as his professional and lay experience, he determined that the defendant was intoxicated. CONCLUSIONS OF LAW Probable Cause At an Ingle hearing, the People have the burden of going forward to show that the police acted lawfully in stopping the vehicle in which the defendant was traveling. The police can lawfully stop a vehicle whenever they have probable cause to believe that the driver has committed a traffic infraction, no matter how minor the offense (People v. Robinson, 97 NY2d 341 [2001]; People v. Abraham, 111 AD3d 756 [2d Dept 2013], lv denied 22 NY3d 1086 [2014]). In this case, Officer Hamilton observed the defendant’s vehicle parked against the median of the Staten Island Expressway while its engine was still running. The vehicle had visible damage and the driver’s side airbags were deployed. The officer further testified that the defendant was slumped over the steering wheel when he and his partner approached the vehicle. Based on the facts elicited at the hearing, the police clearly had probable cause to believe that the defendant had violated the Vehicle and Traffic Law. Thus, the police were justified in “stopping” the defendant’s vehicle. At a Dunaway hearing, the People have the burden of showing that there was probable cause to arrest the defendant. The defendant, however, has the ultimate burden of proving by a preponderance of the evidence that the police acted illegally (People v. Berrios, 28 NY2d 361 [1971]). The existence of probable cause to arrest requires information which “would lead a reasonable person who possesses the same expertise as the arresting officer to conclude, under the circumstances, that a crime is being or was committed” by the defendant (People v. McRay, 51 NY2d 594, 602 [1980]; People v. Cooper, 38 AD3d 678, 679 [2d Dept 2007]). Here, Officer Hamilton testified that he smelled an odor of alcohol on the driver’s breath; he also noticed that his eyes were bloodshot and watery. At the scene, Officer Hamilton had to place the defendant in handcuffs as a form of restraint because he was walking into highway traffic. Based on the officer’s training, coupled with his experience as a layperson, the officer testified that he determined that the defendant was intoxicated. The combination of these factors certainly provided Officer Hamilton with the requisite level of probable cause to place the defendant under arrest. For the foregoing reasons, defendant’s Ingle/Dunaway motion is denied. Huntley At a hearing to suppress a statement made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant’s statement was voluntary in the traditional sense (People v. Anderson, 42 NY2d 35 [1977]; People v. Huntley, 15 NY2d 72 [1965]) and, if applicable, that the defendant had knowingly, intelligently, and voluntarily waived his or her Miranda rights prior to making the statement (Miranda v. Arizona, 384 US 436, 444 [1966]; People v. Williams, 62 NY2d 285, 288-289 [1984]). As reflected in the People’s CPL 710.30 statement notice, the People intend to use a statement made by the defendant to Officer Hamilton at the scene. People’s statement notice specifically states: “see body worn camera for full statement, including but not limited to, in sum and substance: I DON’T KNOW WHAT HAPPENED.” However, the People failed to address the voluntariness of the defendant’s on-scene statement at any point during the course of the hearing. The record of the suppression hearing is completely devoid of any evidence relating to the defendant’s verbal on-scene statement. Neither Officer Hamilton’s testimony nor the BWC entered into evidence demonstrates that the defendant made the statement “I don’t know what happened” or words, in sum and substance, to that effect. At best, Officer Hamilton testified he had asked the defendant what happened, the defendant had shrugged his shoulders in response to the question and the Officer concluded that the defendant did not know what occurred. As such, the on-scene statement contained in the People’s statement notice is hereby suppressed and cannot be introduced during the trial (People v. Velasquez, 64 Misc 3d 575 [Crim Ct, Bronx County 2019]; People v. Tony, 30 Misc 3d 867 [Sup Ct, Bronx County 2010]; see also, People v. David, 44 AD2d 548 [1st Dept 1974] ["No meaningful exploration of this issue (voluntariness) can be had without any reference to the substance and content of the statement attributed to the defendant"]). For these reasons, the defendant’s motion to suppress the on-scene statement contained in the People statement notice is granted. Preclusion of Insufficiently Noticed Statement During the hearing, the BWC video of Officer Hamilton was entered into evidence by the People. Defense counsel put her objection on the record that she would be moving to preclude the statements that went beyond the scope of the People’s statement notice, which put the defendant on notice of the following: “The sum and substance of the statement is offered below or attached/referenced herein: “To: AO Hamilton “Date: November 9, 2020, at 2:40:00 “Location: Vicinity of Slosson Avenue and Staten Island Expressway “Statement Text: See body worn camera for full statement, including but not limited to, in sum and substance: I DON’T KNOW WHAT HAPPENED.” Defendant is essentially seeking to preclude all those statements contained in the BWC footage of Officer Hamilton that were not recited or transcribed in the People’s CPL 710.30 statement notice. “[P]re-trial notice affords defense counsel an opportunity, prior to trial, to investigate the circumstances of the alleged facts and voluntariness of the purported statements and prepare the defense accordingly” (People v. Briggs, 38 NY2d 319, 323 [1975]). It is well settled that the notice given pursuant to CPL 710.30 need not be a verbatim account of the defendant’s oral statement (see People v. Bennett, 56 NY2d 837 [1982]; People v. Laporte, 184 AD2d 803 [1992], appeal denied 80 NY2d 905 [1992]; People v. Garrow, 151 AD2d 877 [1989], lv denied 74 NY2d 948 [1989]). Rather, the People need only give notice of the sum and substance of the statement (see People v. Laporte,184 AD2d 803; People v. Holmes, 170 AD2d 534 [2d Dept 1991], appeal denied 77 NY2d 961 [1991]; People v. Murphy, 163 AD2d 425 [2d Dept 1990]) so that the defendant is made aware of it and receives an adequate opportunity to timely move to suppress it (see People v. Chase, 85 NY2d 493 [1995]; People v. Rodney, 85 NY2d 289 [1995]). Moreover, the statements “must be described sufficiently so that the defendant can intelligently identify them” (People v. Lopez, 84 NY2d 425, 428 [1994]). A review of the BWC footage shows that at approximately the 6:37 time stamp there was an exchange between the officers and the defendant relating to the sum and substance of the statement recited in the People’s CPL 710.30 notice. However, the statements contained in the video from 7:10 to 7:45, as specifically objected to by defense counsel at the hearing, are precluded for People’s failure to give adequate notice of those statements (Lopez, 84 NY2d 425). The unnoticed statements are not in any way related to the sum and substance of the noticed statement. Moreover, it cannot be said that the notice “essentially conveyed the incriminating content of the statement, and [that] it gave defendant enough information to identify the statement and challenge its admissibility by way of a motion to suppress” (People v. McDonald, 91 AD3d 515, 517 [1st Dept 2012], lv denied 19 NY3d 964 [2012]). Sufficiency of the Refusal Warnings Vehicle and Traffic Law §1194 (2) (f) provides: “Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article 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” (People v. Thomas, 46 NY2d 100 [1978]). Vehicle and Traffic Law §1194 therefore requires, before evidence of a refusal may be admitted, that the People meet their initial burden of showing, by a preponderance of the evidence, that the police delivered a “sufficient warning, in clear and unequivocal language, of the effect of such refusal” and that the person persisted in refusing to take the test (People v. Briggs, 123 AD3d 1051 [2d Dept 2014]). The statute patently requires that, if the prosecutor fails to go forward with evidence that the required warning was given in clear or unequivocal language, or that the defendant not only refused, but persisted in refusing to submit to the test, a defendant’s motion to suppress introduction of the refusal into evidence must be granted (Vehicle and Traffic Law §1194 [2] [f]; see e.g. People v. Niedzwiecki, 127 Misc 2d 919 [Crim Ct, Queens County 1985]). However, when refusal warnings are explained in layman’s terms and are done so incorrectly, such warnings are insufficient to satisfy the “clear and unequivocal” language requirement (Matter of Gargano v. New York State Dept. of Motor Vehs., 118 AD2d 859 [2d Dept 1986], appeal denied 68 NY2d 606 [1986]). When a warning not only fails to be unequivocal, but is also incorrect, evidence of a defendant’s refusal to submit to a breath test must be suppressed (People v. Morris, 8 Misc 3d 360 [Crim Ct, Richmond County 2005], citing Matter of Gargano, 118 AD2d 859). The People allege that the defendant had refused to submit to a chemical test by virtue of his conduct, rather than an express verbal refusal. To establish a refusal, the People must show that the defendant through his words or conduct evinced his unwillingness to cooperate with the taking of a chemical test (People v. Smith, 18 NY3d 544, 550-551 [2012]; People v. Richburg, 287 AD2d 790 [3d Dept 2001], lv denied 97 NY2d 687 [2001] [refusal upheld where the defendant, in response to the officer's request, expressly stated "No, you are not taking any of my blood". After being read the consequences of a refusal and again asked to take a chemical test, the defendant looked at the officer and then turned away]; People v. Massong, 105 AD2d 1154 [4th Dept 1984] [feigning unconsciousness constitutes a refusal]; Matter of Johnson v. Adducci, 198 AD2d 352 [2d Dept 1993] [refusal upheld where petitioner, who had agreed to take a breathalyzer test, refused to blow into the tube of the machine]; People v. Dheria, 64 Misc 3d 139[A], 2019 NY Slip Op 51208[U] [App Term, 9th & 10th Jud Dists 2019] [failure to give adequate breath sample on eight separate occasions evinced conduct of refusal]). Here, Officer Hamilton was recorded reading the full length of the refusal warnings to the defendant. Having reviewed the IDTU video, the Court finds that the defendant was appropriately advised, not once but twice, of the refusal warnings as well as the effects which would have attached with failing to take the chemical test. Officer Hamilton initially advised the defendant that he had been arrested for operating a motor vehicle while intoxicated or impaired and asked the defendant if he would take a breath test. The defendant answered “no, sir” and then gave the middle finger gesture. In response, Officer Hamilton then read the defendant the refusal warnings and asked the defendant if would take a breath test. While the defendant did not respond verbally, he made the middle finger gesture. Officer Hamilton then read the refusal warning to the defendant a second time. When asked if he would take the breath test, Officer Hamilton received the middle finger gesture in response. The BWC video shows that the defendant raised the middle fingers of both hands, pointed them at the camera and then at Officer Hamilton. The defendant’s use of the middle finger gesture in conjunction with his “no sir” response to Officer Hamilton’s initial request that he take a breath test and his subsequent use of the same gesture twice after the refusal warnings were administered clearly evinced the defendant’s unwillingness to cooperate with the taking of the chemical test. Thus, the Court finds that the People have met their burden to show that the defendant’s conduct was a refusal to submit to a chemical test. Moreover, the defendant persisted in that refusal (Thomas, 46 NY2d 100). As such, this Court finds that evidence of the defendant’s refusal is admissible at trial (Smith, 18 NY3d 544; Richburg, 287 AD2d 790; Massong, 105 AD2d 1154; Matter of Johnson, 198 AD2d 352; Dheria, 2019 NY Slip Op 51208[U]). Accordingly, based on the foregoing analysis and discussion, the defendant’s Ingle and Dunaway motions are denied; defendant’s Huntley motion is granted; defendant’s preclusion motion is granted as detailed herein; and defendant’s motion to suppress his refusal is denied. This opinion constitutes the Decision and Order of the Court. Dated: March 11, 2022
