DECISION AFTER HEARING The defendant is charged with violating VTL section’s 1192.03, 1192.01 and 1192.2 A Huntley-Dunaway hearing was held pursuant to a decision and order of the Hon. Andrew Engel. The hearing occurred on March 13, 2023 and March 16, 2023. Testimony was given by Police officers Christopher Carney, Jason Pahl as well as Lieutenant David Johnson. FINDINGS OF FACT Police Officer Carney testified that on September 5, 2022 at 6:00 he responded to an auto accident. It was reported that a car crashed into a building located at 550 Nassau Road, Roosevelt, New York. Upon his arrival he observed that there were several other officers at the scene. No one was in the vehicle, or in the immediate area. Upon his inspection of the automobile he observed that the passenger door was open and that the driver side air bag had deployed. There was no testimony that the car’s engine was running. The subject building occupies a corner of Nassau Road and East Greenwich Ave, The officer stated that the car entered the building on the Nassau Road side and a few minutes later he observed the Defendant exit the building via the side door on East Greenwich Ave. This side door was about 50 feet away from the intersection. Several police vehicles were at the intersection with their emergency lights activated. At that time another officer he identified as Tria starts to run towards the Defendant directing him to stop. Upon reaching the Defendant officer Tria then grabs the Defendant by the arm and walks him over to a curb and has him sit with several other officers watching over him. Officer Carney further testified that once officer Tria had the Defendant in place and the Defendant was not leaving his presence, Officer Carney then entered the building to conduct a search for any other person or persons and none were located. Officer Carney further indicated that the Defendant had some bleeding on his right knee and leg area. He was dressed in a shirt and shorts. Officer Carney states that 2 officers walked the Defendant back to the front of the building where officer Carney then began to question the defendant. Essentially the defendant mostly nodded his head and provided no information. Officer Carney located the vehicle registration in the glove box of the car. An EMT at the scene had the defendants driver’s licence. They then walked the defendant about 75 feet to the ambulance indicating he needed assistance and placed him on the stretcher. No field sobriety test or PBT was administered at the scene and the officer was not able to perform a Horizontal Gaze Nystagmus test. He did take note that the defendant had watery/bloodshot eyes and an odor of alcohol. Following these observations Officer Carney placed the defendant under arrest and another officer searched the defendant and found a key fob in his pocket for the same make as the subject vehicle. There was no testimony that the key fob operated the subject vehicle. Neither Officer Carney nor any of the other officers read the Miranda Warnings to the defendant at any time. The Defendant was then transported to the Nassau County Medical Center for Treatment. Officer Carney could not provide the time that the actual crash occurred prior to the 911 call. There was no testimony as to any witnesses as to the accident itself or to the Defendant operating or occupying the vehicle. The next officer to testify was Police Officer Pahl from the Nassau County Police Highway Patrol, who testified that he responded to the hospital to conduct an investigation and conduct FST, Breath or Blood tests. The officer further testified that he observed the defendant to have glassy, blood shot eyes and a strong odor of alcohol. The defendant did submit to a blood test. The officer further testified that he did not conduct a FST but conducted a Gaze Nystagmus Test. The officer indicated that he then read the Miranda Warnings to the defendant and upon completion the defendant indicated that he would not answer any questions. The next officer to testify was Lieutenant David Johnson who was assigned to the detention records bureau. At 12:35 on September 5, 2022 the defendant was brought before Lt. Johnson for booking. As part of that process, a PDCN form 79 was prepared by Lt. Johnson. In addition there are two questions on the form that ask have you been drinking and if so what and the defendant responded he had a cup of rum and the second question was whether the defendant used drugs. He responded no. The defendant was then asked to sign the form and was processed. Prior to his questioning of the defendant the Lieutenant indicated that he did not give Miranda warnings to the defendant. CONCLUSIONS OF LAW The prosecutor bears the burden of going forward at a Huntley/Dunaway hearing, to establish the legality of the police conduct. (People v. Malinsky NY2d86 [1965]; People v. Wise, 46 NY@D 321 [1978], People v. Dodt, 61 NY2d 408, [1984] If the prosecutor meets that burden, then the defendant bears the ultimate burden to establish the illegality of the police conduct by a fair preponderance of the credible evidence. (People v. Berrios, 29NY2d 261 [1971]; People v. Destefano, 38 NY2d 640 [1976]. Defense counsel asks that all of the defendant’s statements verbal or otherwise and all evidence of his intoxication and property taken from the defendant pursuant to a search of his person pursuant to his arrest be suppressed because Officer Carney had no probable cause to arrest the defendant and all of the statements made by him were made while he was in custody and being interrogated, without Miranda warnings being given. The issue that this court must decide is whether Officer Carney had probable cause to arrest the defendant. The court takes notice of the cases submitted by the defense counsel and the people. First this court finds that the defendant was actually in police custody from the moment officer Tria took physical control and custody of the defendant. It is clear from the testimony that he was not free to leave. The court in People v. Cantor 36 NY2d 106 [1975] held that Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the fourth amendment (Terry v. Ohio (392 U.S. 1) the Cantor court supra further held that the police have the common law authority to make investigative inquires. We note that this authority does not give the police license to violate the Constitution (People v. Rivera, 14 NY2d 441). The common law power to inquire does not include the right to unlawfully seize. Thus any questions asked of the defendant from that point on were not investigatory but rather interrogation, and therefore the defendant’s statements are suppressed. Secondly regarding the key fob found on the defendants person during the search that item is suppressed on two grounds. First, the lack of probable cause for the arrest and second, the people’s failure to list the item on its disclosure notice at page 13 item M. The defendant when originally given his Miranda warnings while at the hospital by Officer Pahl indicated that he would not answer questions, thereby invoking his right to remain silent thus regarding the defendants answers regarding the consumption of alcohol is also suppressed. The people’s argument that the officers questioning of defendant was simply to ascertain defendant’s pedigree must be rejected. Although pedigree questions may be asked of the defendant, they are limited in scope to those necessary for processing or his physical needs. The questions regarding alcohol and the use of drugs were clearly not those aimed at ascertaining pedigree since they went to the very heart of the crime charged (People v. Antonio 86 AD.2d 614 [1982]. In addition they were in violation of his right to counsel. Also since officer Carney lacked probable cause to arrest the defendant the results of any chemical and or blood test are also suppressed As to the issue of the lack of probable cause, based on the totality of the circumstances, neither Officer Carney nor anyone else observed the defendant in the vehicle or operating the vehicle. Hence the identity of the operator is the significant link in the chain of evidence (People v. Samuel 29 N.Y. 2d 252) [1971] citing (people v. Rosenheimer(209 N.Y. 115). Therefore defense counsel’s application for suppression of all statements and all physical evidence, along with the lack of probable cause and all accumulated evidence of the defendants intoxication is suppressed. SO ORDERED: Dated: April 6, 2023
