Appeal from an order of the Justice Court of the Village of Florida, Orange County (Daniel F. Coleman, J.), dated May 31, 2007. The order granted defendant's motion to suppress evidence.

Order reversed on the law and defendant's motion to suppress evidence denied.

Charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]), leaving the scene of an accident (Vehicle and Traffic Law § 605 [a] [1]) and other offenses, defendant moved to suppress statements, uttered both prior to his arrest and while in custody, as well as the results of a blood alcohol test. In support of his motion, defendant alleged an illegal search and seizure, and official coercion. According to the hearing testimony, within minutes of an automobile accident involving a single car that
had left the scene, State Troopers traced the damaged car to a garage at the home of defendant's uncle. Defendant's female companion, who had blood on her clothing, responded to the Troopers' knock at the door. Following a verbal altercation, the Troopers arrested the companion for obstructing governmental administration. As the Troopers were escorting the companion to their vehicle, defendant, apparently intoxicated, emerged from the home to protest his companion's arrest. According to the Trooper who testified at the hearing, defendant stated that only he had driven the vehicle and that the accident resulted from a poorly executed turn in rainy conditions. Defendant, who also testified at the hearing, insisted he told the Troopers solely that his companion "had nothing to do with it." [*2]

It is undisputed that defendant voluntarily accompanied his companion to the State Police barracks, that, following his arrest, the Troopers properly recited to defendant both the Miranda warnings and the warnings regarding the consequences of a refusal to submit to a blood alcohol test, and that defendant understood what had been read to him. Defendant then stated that the accident occurred as he and his uncle were returning from a bar or restaurant where they had been drinking when defendant, who was driving, was unable to execute a turn in the rain. Defendant failed four of five physical coordination tests, and the chemical test revealed a blood alcohol content twice the legal limit for driving while intoxicated. Defendant's uncle also appeared at the State Police barracks and provided an account of events consistent with defendant's admissions regarding the consumption of alcohol and the nature of the accident.

The court concluded that there was probable cause for defendant's arrest and denied suppression of defendant's initial statements as noncustodial. The court suppressed defendant's custodial statements on the ground that the hearing evidence failed to establish that defendant "affirmatively" waived his Miranda rights and because the Troopers threatened to charge defendant's companion and defendant's uncle with offenses in relation to the accident if defendant failed to confess, inter alia, to driving while intoxicated and leaving the scene of an accident. The court, without explanation, also suppressed the blood alcohol test results. In its return to the affidavit of errors, the court stated that the test results were suppressed because "both the defendant and his uncle testified . . . [that] they had been drinking quite a bit while they were at the house." The charge against defendant's companion was ultimately dismissed.

The People appeal and we reverse.

The record amply supports the conclusion that by communicating with the Troopers immediately after hearing and understanding the Miranda warnings, defendant "voluntarily made an informed decision to speak" (People Scott, 154 AD2d 719 [1989]) and thereby "implicitly waived those rights" (People v Sirno, 76 NY2d 967, 968 [1990]; see North Carolina v Butler, 441 US 369, 373 [1979]; People v Davis, 55 NY2d 731, 733 [1981]; People v Gill, 20 AD3d 434 [2005]; People v Hastings, 282 AD2d 545, 546 [2001]). We also do not agree that the record supports an inference that the waiver and statement were obtained by coercion. A confession may be found involuntary upon "some showing that [a] deception was so fundamentally unfair as to deny due process . . . or that a promise or threat was made that could induce a false confession" (People v Tarsia, 50 NY2d 1, 11 [1980] [citations omitted]; see e.g. People v Velez, 211 AD2d 524 [1995]; People v Myers, 172 AD2d 632 [1991]). "The issue is a factual one governed by the totality of the circumstances" (People v Brown, 39 AD3d 886, 887 [2007]). The companion's bloody clothing, the companion's uncooperative behavior in response to the Troopers' investigation of the accident, the observation of a damaged automobile that had been traced from the accident scene to the uncle's garage, and defendant's non-custodial admission, provided a "factual basis" to consider all three persons potentially chargeable with offenses in relation to the accident. Thus, even if the Troopers informed defendant that his companion was subject to arrest, in part to induce him to admit his alcohol consumption and his involvement in the accident, the strategy was not "so fundamentally unfair as to deny due process or likely to induce a false confession" (People v Velez, 211 AD2d 524 [1995]; see also People v Cannady, 243 AD2d 642 [1997]).

The suppression of the chemical test results should also have been denied. Defendant did [*3]not dispute that he was properly informed of the consequences of refusing to take the test, and the court did not grant suppression on the ground that the test itself was coerced or was otherwise suppressible as the consequence of a Fourth Amendment violation. The ground asserted, apparently that the evidence was without probative value, is not among the authorized grounds to suppress evidence (see CPL 710.20; e.g. People v Laing, 79 NY2d 166, 171 [1992]; People v Washington, 51 NY2d 214, 221 [1980]; People v Bridges, 226 AD2d 471 [1996]; People v Sharrieff, 117 AD2d 635, 636-637 [1986]). Defendant's alternate grounds for affirmance, raised for the first time on appeal, were not considered by the court below and are not reviewable on this appeal (CPL 470.15 [1]; see e.g. People v Karp, 76 NY2d 1006, 1008-1009 [1990]; People v Goodfriend, 64 NY2d 695, 698 [1984]; People v Banks, 42 AD3d 574, 575 [2007]).
Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: October 30, 2008