DECISION AND ORDER The Defendant is charged with Driving While Intoxicated and related charges. A Dunaway/Mapp/Huntley/refusal hearing was ordered and held. The People called one (1) witness: Southampton Town Police Sergeant Steven Miller. FINDINGS OF FACT The Court finds the People’s witness to be credible. On the evening of August 13, 2021, into the early morning hours of August 14, 2021, Southampton Town Police Sergeant Steven Miller was working traffic enforcement within the confines of the Town of Southampton. At or around 11:26 p.m., on August 13, 2021, Sergeant Miller was in his marked police car, traveling westbound on County Road 39, a public highway in Southampton, New York, located within the Town of Southampton and County of Suffolk. At or around that time, just before the intersection of County Road 39 and North Main Street, in Southampton, Sergeant Miller observed a gray Nissan Rogue traveling westbound on County Road 39, directly in front of him. The driver of the Nissan Rogue later became known to be Damien Roman, the Defendant herein. The Defendant was traveling approximately forty (40) to forty-five (45) miles per hour. Sergeant Miller observed the Defendant traveling close to the vehicle in front of him. Shortly after Sergeant Miller’s initial observation, the westbound side of County Road 39 became two lanes, and the Defendant proceeded into the left lane, accelerated and sped past the vehicle in front of him. Thereafter, the Defendant continued to maneuver in and out of the two lanes, approaching closely to and passing several vehicles, reaching speeds of sixty (60) miles per hour. While speeding through traffic and recklessly maneuvering in and out of lanes, the Defendant approached within three (3) feet of vehicles in front of him. Sergeant Miller then activated his lights and sirens to initiate a traffic stop. The Defendant stopped his vehicle in the right lane of County Road 39, but then turned onto a side street about one-hundred (100) feet ahead, at Sergeant Miller’s instruction. Upon approaching the Nissan Rogue from the driver’s side, Sergeant Miller observed the Defendant in the driver’s seat, and no passengers in the vehicle. Sergeant Miller asked the Defendant for his license, registration, and insurance card, and the Defendant complied. While speaking with the Defendant, Sergeant Miller observed that the Defendant had watery eyes, slurred speech, and a strong odor of alcohol. Sergeant Miller also observed a case of High Noon hard seltzer on the rear seat of Defendant’s vehicle, and a can of Fishers Lemonade on the front passenger seat, both alcoholic beverages. Sergeant Miller asked the Defendant if he had anything to drink, to which the Defendant responded, in sum and substance, that he had a few drinks with dinner and that he was coming from a small bar in Sag Harbor, New York. When making these statements to Sergeant Miller, the Defendant was not in handcuffs and not under arrest, nor was he physically or verbally threatened to make such statements. Sergeant Miller then asked the Defendant to step out of his vehicle, to which the Defendant complied. While the Defendant exited his vehicle and walked to the back of the car at Sergeant Miller’s direction, Sergeant Miller observed the Defendant to be unsteady on his feet and use his hand to guide himself alongside the car. When the Defendant was out of his vehicle, Sergeant Miller again observed watery eyes and a strong odor of alcohol emanating from the Defendant’s breath. Sergeant Miller again asked the Defendant if he had anything to drink, to which Defendant again replied that he had a few drinks at dinner. Sergeant Miller asked the Defendant perform standardized field sobriety tests. The Defendant first agreed to perform the horizontal gaze nystagmus test, which Sergeant Miller administered. After performing the horizontal gaze nystagmus test, Sergeant Miller found that the Defendant displayed evidence of intoxication. Next, the Defendant agreed to perform the walk-and-turn test, which Sergeant Miller administered. After performing the walk-and-turn test, Sergeant Miller again found that the Defendant displayed evidence of intoxication. After the Defendant completed the walk-and-turn test, he stated to Sergeant Miller that he did pretty good, to which Sergeant Miller informed him that he did not do good, and that he performed poorly. The Defendant then asked Sergeant Miller to see his camera, to which Sergeant Miller responded that he did not have a camera. The Defendant then stated, in sum and substance, that since Sergeant Miller did not have a camera, he would be “fighting this all the way.” The last standard field sobriety test the Defendant agreed to perform the one-legged stance test, which Sergeant Miller administered. After performing the one-legged stance test, Sergeant Miller again found that the Defendant displayed evidence of intoxication. Sergeant Miller then asked the Defendant administer the pre-screening device on him, to which he refused, and again reiterated, in sum and substance, that there was no camera and he would fight this. The Defendant told Sergeant Miller that he believed he did well on the tests and passed everything. Based on his own observations and the results of the three standard field sobriety tests the Defendant performed, Sergeant Miller concluded that the Defendant was intoxicated and unfit to be operating a motor vehicle. Accordingly, Sergeant Miller placed the Defendant under arrest for driving while intoxicated and placed him in the back seat of the police car at approximately 11:48 p.m. on August 13, 2021. Sergeant Miller then safeguarded the Defendant’s vehicle. In doing so, Sergeant Miller took photographs of the interior and exterior of the vehicle, made sure no valuables were left in the vehicle, and moved the vehicle onto the sidewalk in a safe area where it would not be struck by oncoming traffic. When inside the vehicle taking photographs, Sergeant Miller observed that the Fishers Lemonade can was open and empty, and that the beverage was nine (9 percent) alcohol by volume. Sergeant Miller also observed that the case of High Noon hard seltzer was half empty and felt “cold to the touch,” and that there were several empty cans on the floor. Once finished safeguarding the Defendant’s vehicle, Sergeant Miller transported the Defendant to Southampton Town Police Headquarters at approximately midnight. Sergeant Miller arrived at Southampton Town Police Headquarters with the Defendant at approximately 12:12 a.m. on August 14, 2021. Once at Southampton Town Police Headquarters, the Defendant was brought to a room, approximately fifteen (15) feet by twelve (12) feet, with a metal gate entrance and a bench and table in the middle. The Defendant was handcuffed to the table, sitting on the opposite side from where Sergeant Miller sat. Sergeant Miller read the Defendant a document known as an Alcohol Influence Report (the “AIR”), 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. Included on the AIR that Sergeant Miller read to the Defendant were certain warnings. Those warnings informed the Defendant 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, and that his refusal would be introduced as evidence against him at any subsequent trial, proceeding, or hearing resulting from this arrest. After being so informed, the Defendant initialed the document indicated that he understood its contents. The Defendant was asked three separate times to submit to a test, and Defendant refused each time, as indicated by the Defendant’s handwritten word “refuse” and signature in three separate spots on the document, each noted with different times. Notably, after Sergeant Miller asked the Defendant to submit to a chemical test the second time, the Defendant stated that he wanted to call a lawyer. Sergeant Miller dialed the phone number for the Defendant’s attorney, Edward Burke, and gave the phone to the Defendant. Mr. Burke did not answer the phone call and so the Defendant left a message. After the Defendant’s second refusal, Mr. Burke returned the phone call, and Sergeant Miller put the Defendant on the phone. During the Defendant’s phone call with his attorney, Sergeant Miller remained in the room seated opposite the Defendant and made no attempt to leave the room, while the Defendant remained handcuffed to the table. The Defendant told Mr. Burke that he was coming to Southampton, that he was tailgating and speeding, that he went to Murf’s, had one drink and one shot, and had a few drinks with dinner at about 8:00 p.m. The Defendant further stated to his attorney that he was going to fight this because the officer did not have a camera. During Sergeant Miller’s interaction with the Defendant from August 13, 2021 into August 14, 2021, the Defendant had mood swings, where he went from being a little argumentative and a little nasty to being very pleasant. The 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 and at Southampton Town Police Headquarters. CONCLUSIONS OF LAW DUNAWAY/MAPP 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]). Sergeant Miller observed the Defendant operate his vehicle at excessive speeds, approach cars in front of him at unsafe distances, and recklessly maneuver in and out of lanes to pass cars. These observations gave Sergeant Miller adequate justification to conduct a traffic stop based upon his belief that the Defendant had violated the Vehicle and Traffic Law, and thus the stop was lawful (see People v. Wyatt, 153 AD3d 1371 [2d Dept 2017]; People v. Donaldson, 35 AD3d 1242 [4th Dept 2006]; People v. Moore, 277 AD2d 254 [2d Dept 2000]; see also People v. Martinez, supra; People v. Hollman, supra; People v. Leung, supra). The Defendant’s watery eyes, slurred speech, strong odor of alcohol, and unsteadiness on his feet, ripened the encounter to probable cause to believe that the Defendant had been driving while intoxicated or impaired, and thus the arrest of the Defendant was proper (see People v. Hollman, supra; People v. Brown, supra). Accordingly, the stop and subsequent arrest of the Defendant was proper, and the evidence obtained therefrom will not be suppressed. HUNTLY ISSUES The record is clear that the Defendant’s statements during the stop, in response to Sergeant Miller asking if the Defendant had anything to drink and where he was coming from, were 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 the Defendant’s statements at the stop during the standard field sobriety tests — that he believed he performed well on the tests and that he would be “fighting this all the way” because there was no camera — the Defendant was not in custody at the time such statements were made, and further, such statements were voluntary and spontaneous and were not the product of police interrogation or its functional equivalent (see People v. Arcese, supra; People v. Rivers, 56 NY2d 476 [1982]; see also People v. Davis, 261 AD2d 411 [2d Dept 1999], Iv denied 93 NY2d 1002; People v. Green, [2d Dept 1999], Iv denied 93 NY2d 971; People v. Schreiber, 250 AD2d 786 [2d Dept 1998], Iv denied 92 NY2d 905) Accordingly, the Defendant’s initial statements made during the stop will not be suppressed. However, the Defendant’s statements made over the phone to his attorney at Southampton Town Police Headquarters will be suppressed. While in custody at Southampton Town Police Headquarters, handcuffed to a table in an interview room, the Defendant requested that he be allowed to call his lawyer, Edward Burke. When Mr. Burke returned the phone call, Sergeant Miller handed the phone to the Defendant. During this phone call, the Defendant remained handcuffed to the table, while Sergeant Miller sat at the same table on the side opposite the Defendant. Sergeant Miller made no attempt or effort to leave the room prior to or during the Defendant’s phone call with his attorney. Although not binding on this Court, a case with facts nearly identical those at issue here is People v. O’Neil, 43 Misc 3d 693 (Nassau Dist Ct 2014). In O’Neil, the defendant was arrested for driving while intoxicated (People v. O’Neil, supra). After the defendant was asked to submit to a chemical breath test, he requested to speak with his attorney (id. at 698). Although the defendant was afforded that opportunity, while speaking with his attorney over the phone, he was handcuffed to a wall with a police officer standing only a few feet away (id.). The police officer was well within earshot of the defendant and could hear everything the defendant said to his attorney over the phone (id.). The police officer made no effort to leave the area or otherwise provide the defendant another area where he could speak with his attorney in private (id.). The Court ultimately ruled that the defendant’s attorney-client privilege was not waived under those circumstances and suppressed the statements the defendant made to his attorney over the telephone (id. at 697-704, citing People v. Saunders, 169 Misc 2d 813 [Sup Ct, Bronx County 1996]; see also People v. Gursey, 22 NY2d 224, 227-228 [1986]). The People point this Court to a Court of Appeals decision, People v. Harris, 57 NY2d 335 (1982). Although Harris presents similar circumstances to those herein, a key difference in Harris is that the police officer therein, after he assisted the defendant to a telephone to have a conversation with her attorney, “was backing out of the room when in inadvertently overhead” a statement made by the defendant to her attorney, and he “had no opportunity to remove himself from earshot before [the defendant] made the damaging statement” (People v. Harris, 57 NY2d 335, 342 [1982]). Additionally, the defendant in Harris made this statement at her doctor’s home, not at a police station or correctional facility, and the statement was also made in the presence of a third party, the house manager’s husband, thereby defeating any attorney-client privilege (see id. at 341-343). The O’Neil Court distinguishes Harris for these exact same reasons (see O’Neil, supra at 700-701). This Court agrees with the reasoning set forth in O’Neil, and the statements the Defendant made over the phone to his attorney at Southampton Town Police Headquarters will be suppressed. Accordingly, the statements made by the Defendant at the traffic stop and during his performance of the standard field sobriety tests will not be suppressed, but the statements made by the Defendant during the telephone call with his attorney at Southampton Town Police Headquarters are 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 the 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, and that his refusal would be introduced as evidence against him at any subsequent trial, proceeding, or hearing. Despite being so informed of such consequences, the Defendant refused to submit to a chemical test each time he was asked. Accordingly, evidence of the 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: April 20, 2023
