DECISION AND ORDER The Defendant is charged with Driving While Intoxicated and related charges. A Dunaway/Huntley/refusal hearing was ordered and held. The People called two (2) witnesses: Suffolk County Police Officers Matthew Spilotros and Craig Capobianco. FINDINGS OF FACT The Court finds the People’s witnesses to be credible. On or about the evening of August 28, 2021, into the early morning hours of August 29, 2021, Police Officer Spilotros was working patrol with his partner, Officer Pavinski, within the confines of the Fifth Precinct. At or around 1:22 a.m., on August 29, 2021, Officers Spilotros and Pavinski were in their patrol car driving westbound on Montauk Highway in East Patchogue, New York, located within the Town of Brookhaven and County of Suffolk. Officer Pavinski was driving the patrol car and Officer Spilotros was in the front passenger seat. Following the police officers from behind was a dark-colored SUV, being driven by Defendant, with other passengers in the vehicle. The vehicle was ultimately determined to be a gray Jeep Grand Cherokee. While driving behind the police patrol car, Defendant flashed his vehicle’s high beams at least three times. In response, the police officers decided it was best to pull over in case the driver was trying to flag them down or there was an emergency. Accordingly, Officer Pavinski pulled the patrol car over to the side of the road on the westbound shoulder, whereupon the vehicle being driven by Defendant passed them. The police officers then began to follow Defendant’s vehicle for a short period, and then initiated their overhead lights and pulled the vehicle over. Upon pulling the vehicle over, Officers Pavinski and Spilotros approached the vehicle from the driver side and passenger side, respectively. When they approached the vehicle, the police officers did not notice any signs indicating that Defendant was in distress. Officer Pavinski asked Defendant if everything was alright, to which Defendant answered, “Yes.” When confronted with flashing his high beams at the police patrol car, Defendant replied, “No, I didn’t.” Officers asked Defendant for his driver’s license, and Defendant responded, “I don’t have it right now.” When asked for his name and date of birth, Defendant answered, “Jose Ibarra with date of birth 5/22/1966.” Officer Spilotros returned to the patrol car and ran the name and date of birth given to him by Defendant in the patrol car’s computer. Upon entering that information, the computer results indicated that Jose Ibarra was a real person with a valid driver’s license. However, the police officers suspected that Defendant was not that person, based on his youthful appearance and the age of the individual whom he claimed to be. Upon returning to the vehicle, the police officers asked Defendant if he was sure that his date of birth was in 1966, Defendant answered, “Yes.” During this entire time, Defendant was seated in the vehicle’s driver seat, not under arrest and not in handcuffs. The police officers had also not made any threats or promises to Defendant, nor had any physical contact with Defendant during that time which he remained in the vehicle’s driver seat. Ultimately, Officer Pavinski asked Defendant to step out of the vehicle, which he eventually did. Defendant walked to the rear of the vehicle, and was slurring his words and speaking very quietly when talking to the police officers. When the police officers again asked Defendant for identification, Defendant said he did not have anything on him. However, Officer Spilotros noticed a bulge in Defendant’s back pocket, which appeared to be a wallet. Officer Spilotros asked Defendant for his wallet and Defendant provided same to the officer. In his wallet, the officers found a New York State identification card, but not a driver’s license. The identification card indicated that Defendant’s name was Max Serrano, with a date of birth of June 29, 1988, and the photograph on the card matched the appearance of Defendant. Upon running Defendant’s actual information in the computer, the officers found that Defendant had a revoked driver’s license as of 2015, for driving under the influence of alcohol. After the officers confirmed Defendant’s real identity, another police officer, Officer Craig Capobianco, arrived on scene. Officer Capobianco was driving his patrol car westbound on Montauk Highway in the same area and around the same time when he observed the traffic stop by Officers Pavinski and Spilotros. Officer Capobianco pulled his patrol car over next to the traffic stop to see if his fellow officers needed assistance. Upon exiting his patrol car and approaching Defendant and his fellow officers, Officer Capobianco immediately noticed Defendant’s bloodshot, glassy eyes and slurred and mumbled speech, along with an odor of alcohol emanating from Defendant’s breath. Additionally, Defendant acted rude, disrespectful, and belligerent towards the officers. When questioned by Officer Capobianco, Defendant was uncooperative and responded with vulgar insults. Officer Capobianco sought to have Defendant perform standardized field sobriety tests in order to determine if Defendant was intoxicated or impaired by drugs. Defendant agreed to perform the horizontal gaze nystagmus test, which Officer Capobianco administered. After performing this test, Officer Capobianco found that Defendant displayed evidence of intoxication. Officer Capobianco then sought to have Defendant perform additional standardized field sobriety tests, but Defendant refused. Based on his own observations and the results of the horizontal gaze nystagmus test, Officer Capobianco concluded that Defendant was intoxicated and unfit to be operating a motor vehicle. Accordingly, Officer Capobianco placed Defendant under arrest for driving while intoxicated, and transported Defendant to the Fifth Precinct in Patchogue. Once at the Fifth Precinct, Officer Capobianco read Defendant a document known as an Alcohol Influence Report, which is a form that requests Defendant to submit to a chemical breath test, blood test, or urine test, in order to determine Defendant’s levels of intoxication and/or impairment, if any. Defendant was also informed that he had the right to refuse any such testing, but that his refusal to submit to a test would result in the revocation or suspension of his license. After being so informed, Defendant was asked three separate times to submit to a test, and Defendant refused each time. Instead, Defendant remained uncooperative and rude, and continued to question the legality of the police officers’ stop. Specifically, Defendant spontaneously stated, in sum and substance, “Why was I stopped again? This is bullshit. Give me my phone call.” Defendant challenges the constitutionality of the stop and arrest, as well as the admissibility of the statements made by Defendant at the time of the arrest. CONCLUSIONS OF LAW DUNAWAY ISSUE In enforcing the constitutionally protected right to be left alone, the level of permissible intrusion by law enforcement officers during street encounters with private citizens is governed by the four-tier analysis as set forth in People v. De Bour (40 NY2d 210 [1976]). The lowest level of intrusion in approaching an individual to request information is permitted where there exists some objective credible reason for the interference not necessarily indicative of criminality (see People v. De Bour, supra; see also People v. Hollman, 79 NY2d 181 [1992]; People v. Wells, 226 AD2d 406 [1996]). The next level of intrusion, the common law right to inquire, is allowable when the police have a “founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v. De Bour, supra at 223). Third, a police officer may pursue, stop and detain a person when a reasonable suspicion exists that such person has committed, is committing or is about to commit a crime (see People v. De Bour, supra; see also CPL 140.50; People v. Martinez, 80 NY2d 444 [1992]; People v. Hollman, supra; People v. Leung, 68 NY2d 734 [1986]). Finally, the fourth level of intrusion permits the arrest and custody of a person where the police have probable cause to believe that the person has committed a crime (see People v. De Bour, supra; People v. Hollman, supra; see also CPL 140.10; People v. Brown, 256 AD2d 414 [2d Dept 1998]). When Defendant flashed his high beams at the patrol car, it was reasonable for the police officers to believe that Defendant may have been in some sort of distress or needed assistance (see People v. Blakey, 46 NY2d 1026, 1027 [1979] [holding that the use of high beam lights may be a signal of trouble or distress, and a police stop of a vehicle flashing its high beams may be warranted for such reason]). Thus, the police offers’ belief that Defendant was in distress or needed emergency assistance was reasonable, and thus the stop of Defendant’s vehicle was proper (see People v. Blakey, supra; see also People v. Martinez, supra; People v. Hollman, supra; People v. Leung, supra). Defendant’s bloodshot, glassy eyes, slurred and mumbled speech, odor of alcohol, when coupled with his erratic and rude behavior, ripened the encounter to probable cause to believe that Defendant had been driving while intoxicated or impaired (see People v. Hollman, supra; People v. Brown, supra). Accordingly, the subsequent arrest of Defendant was proper. HUNTLY ISSUE The record is clear that Defendant’s initial statements during the stop, in regards to whether Defendant was alright, why Defendant was flashing his high beam lights at the patrol car, and concerning Defendant’s identity, were all made in response to investigatory questioning by the police and there was no indication that Defendant was in custody at the time (see People v. Arcese, 148 AD2d 460 [2d Dept 1989], appeal denied 74 NY2d 661). With respect to Defendant’s statements at the Fifth Precinct — “Why was I stopped again? This is bullshit. Give me my phone call” — such statements were voluntary and spontaneous and were not the product of police interrogation or its functional equivalent (see People v. Rivers, 56 NY2d 476 [1982]; see also People v. Davis, 261 AD2d 411 [2d Dept 1999], lv denied 93 NY2d 1002; People v. Green, [2d Dept 1999], lv denied 93 NY2d 971; People v. Schreiber, 250 AD2d 786 [2d Dept 1998], lv denied 92 NY2d 905). Thus, Defendant’s initial statements made during the stop and his later statements made while at the Fifth Precinct, will not be suppressed. REFUSAL ISSUE “Vehicle and Traffic Law §1194 ‘grants a motorist a qualified right to decline to voluntarily take a chemical test with the understanding that such a refusal will result in the immediate suspension and ultimate revocation of the motorist’s driver license for a period of one year’” (People v. Sellers, 73 Misc 3d 5, 8 [App Term, 2d Dept, 9th & 10th Jud Dists 2021], quoting People v. Patel, 169 AD3d 935, 936 [2019]; see Vehicle and Traffic Law §1194 [2] [d]). However, as further provided by the statute, “[e]vidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing…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” (Vehicle and Traffic Law §1194 [2] [f]). The record here clearly establishes that Defendant was asked three separate times to submit to a chemical test, after being informed that his refusal to do so would result in the revocation or suspension of his license. Despite being so informed of such consequences, Defendant refused to submit to a chemical test each time he was asked. Accordingly, evidence of Defendant’s refusal to submit to a chemical test is admissible at trial and will not be suppressed. The foregoing shall constitute the Decision and Order of the Court. Dated: November 21, 2022
