People v Morel-Gomez (2011 NY Slip Op 52034(U))

People v Morel-Gomez

2011 NY Slip Op 52034(U) [33 Misc 3d 1220(A)]

Decided on June 13, 2011

Supreme Court, Bronx County

Marvin, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through November 15, 2011; it will not be published in the printed Official Reports.

Via a misdemeanor complaint dated October 3, 2009, the defendant Gelison Morel-Gomez was charged with driving while ability impaired and driving while intoxicated (V.T.L. §§ 1192[1] and [3], respectively). On or about November 5, 2009, the People filed a chemical test analysis and stated ready. On January 20, 2010, defense counsel filed an omnibus motion, to which the People responded on March 16, 2010. That day, Justice Yearwood ordered a Huntley/Ingle/Refusal hearing. On July 26, 2010, defense counsel filed a motion seeking dismissal of the complaint on the ground that defendant's rights under the Equal Protection and Due Process clauses of the New York and Federal constitutions were violated. Specifically, defense counsel asserted that defendant, who spoke Spanish, had no opportunity to dispute the allegations of intoxication, either through statements or a physical demonstration of sobriety. On August 23, 2010, the People filed an affirmation in opposition. In a Decision and Order dated December 17, 2010, Justice Yearwood denied defendant's motion to dismiss.

On February 4, 2011, before the commencement of the hearing, the People orally moved to dismiss count one of the complaint (V.T.L. § 1192[3]), an application which was granted. At the hearing, two witnesses testified: Police Officer Herawattie Jeeuth of the 41st precinct and Police Officer Jason Edwards of Highway One of the New York City Police Department ("NYPD"). On April 1, 2011, the People and defense filed post-hearing memoranda of law on the Refusal issue. On April 12, 2011, the defense filed a reply. On May 12, 2011, the People and defense submitted a stipulation of the IDTU tape transcription. On May 20, 2011, the defense [*2]filed a supplemental memorandum of law on the Huntley/Ingle issues, to which the People filed a response on June 1, 2011. As set forth below, I found the testimony of the officers to be consistent and credible.

A 14-year veteran of the NYPD, Officer Jeeuth was assigned to robbery and auto enforcement of the Conditions Unit on October 3, 2009. Officer Jeeuth, and her partner, Officer Andrew Ulich, were in uniform and drove a marked police patrol car. Officer Jeeuth was the driver and Officer Ulich was the recorder. At approximately 1:35 a.m., Officer Jeeuth, who parked the patrol car on the northeast corner of Southern Boulevard, off the Westchester Avenue intersection, observed defendant driving northbound on Westchester Avenue and making a left turn onto West Farm Road, a one-way street for buses only. There was a "Do Not Enter" sign on West Farm Road. After defendant drove in the opposite direction of the one-way street, Officer Jeeuth turned on the lights and siren of her patrol car and stopped defendant at the corner of West Farms Road and Westchester Avenue. Buses were parked on West Farm Road and traffic was moderate on Southern Boulevard and Westchester Avenue.

As Officer Jeeuth approached the driver's side of defendant's car, she asked defendant, in English, to roll down the window. The officer explained to defendant why he was being stopped. Thereafter, the officer smelled an odor of alcohol emanating from defendant's breath. There were other male occupants in the car who appeared to be intoxicated. The officer asked defendant to step out of the car and asked him why he had made the turn and if he was lost. Defendant replied that his friend got into an accident. When asked if he had been drinking, defendant stated that he had three Coronas. After the officer asked defendant to provide his license and registration, he complied. Defendant spoke in "heavily accented English" (H. 44).

Defendant's eyes were red and bloodshot, his face was red, and his speech was slurred. When defendant walked to the rear of the car, he was swaying a little. After Officer Jeeuth concluded that defendant appeared intoxicated, she placed defendant under arrest at approximately 1:45 a.m. Thereafter, defendant was transported to the 45th Precinct for the purpose of having a highway officer administer a breathalyzer test . While at the precinct from 2:00 a.m. to 3:30 a.m., defendant, who was in the holding cell area, stated, "We've been here since 1 o'clock" (H. 21).^[FN1] At that time, neither Officer Jeeuth nor his partner asked defendant any questions. Office Jeeuth issued a summons to defendant for failure to signal.

At the 45th Precinct, Officer Edwards, a 9½ year veteran of the NYPD who is a certified breath analysis operator, offered defendant an opportunity to take the breath test. In the beginning of the Intoxicated Driver Testing Unit ("IDTU") tape, Officer Edwards asked defendant, in English, what his name was. When defendant did not respond, the officer asked, in Spanish, "Como te llams," which means what is your name. Officer Edwards also stated that:

. . . . Due to the language barrier, I am going to show the Spanish video. It's going to state that you've been arrested for operating a motor vehicle while under the influence of alcohol. I'd like you to take a breath test. Will you take this test? Yes or no.

(Stipulation of the IDTU tape transcription dated May 12, 2011, p. 1). [*3]

Defendant responded, "Yo no entiendo," which means I do not understand. Thereafter, Officer Edwards stated, "I know you don't understand English. Watch this" (Id.). Defendant then watched and listened to a videotape in Spanish offering him an opportunity to take the breath test. The videotape stated:

You have been arrested for driving a vehicle under the influence of alcohol or drugs. I would like you to take a chemical test of your breath. Do you wish to take the test, yes or no?

(People's Exhibit 5). After playing the videotape, Officer Edwards asked defendant, "Si or No?" (Si means yes). Defendant shrugged his shoulders and stated something that was inaudible. Officer Edwards stated, "Alright. Si or No?" (Stipulation of the IDTU tape transcription, p. 1). Defendant replied, "Yes" (Id. at p. 2).

While Officer Edwards calibrated the Intoxilyzer machine, defendant stood against the wall. Thereafter, in addition to telling defendant to "come here," the officer also hand gestured defendant to approach him. Officer Edwards gave a very brief demonstration away from the machine. As the officer stated, "You have to blow like this," he held a mouthpiece and blew into it eight times. While blowing, Officer Edwards used his right fingers to count eight times. The officer then stated, "8 seconds, alright?," to which defendant asked, "Eight? Eight?" Officer Edwards replied, "Eight. Eight seconds" (People's Exhibit 6: IDTU tape; Stipulation of the IDTU tape transcription, p. 2). After placing a new mouthpiece to the machine, Officer Edwards hand gestured defendant to approach the machine. The following interaction ensued:

Officer Edwards: You are not blowing. You got to blow (officer twirling his right index finger at this time)

Officer Edwards: No, you are not. Come here. At this point, I will show the refusal warnings. Watch this.

Thereafter, defendant watched and listened to the videotape, in Spanish, that advised him of the consequences of refusing to submit to the Intoxilyzer breath test. The warnings provided:

If you refuse to submit to the chemical test, or part of the same, this will result in the immediate suspension and the subsequent revocation of your driving license, or driving priviledge (sic) whether you are, or not, found guilty of the charges for which you have been arrested.

Also, if you refuse to submit to a chemical test, or portions of the same, said refusal could be presented as evidence against you in any trial, proceeding or hearing as a result of your arrest. I ask you again. Do you wish to take the chemical test, yes or no?

(People's Exhibit 5). After the videotape was played, the following ensued:

Officer Edwards: Si? [they approached toward the machine] Then you got to blow. You are not blowing.

Officer Edwards: You are not blowing. You are not blowing, you are not blowing [officer looking away from defendant].

Officer Edwards: [less than one second later] Alright, very good, stand up, the test is a refusal. The motorist is refusing to blow into the instrument. Had he blown into the instrument, there would have been an audible sound in the instrument also indicating air passing through the instrument. At this time, the motorist is not doing so. The test is going to count as a refusal. Alright, this is going to conclude tape coverage.

(People Exhibit 5: IDTU tape; Stipulation of the IDTU tape transcription, pp. 2-3)

Officer Edwards testified that defendant seemed to have some basic concept of English. It appeared that defendant understood some things, but not other things. The videotape was played in Spanish for defendant because Officer Edwards did not feel that he would understand the warnings in English "to the point of giving a clear answer" (H. 72). The beathalyzer machine used was the Intoxilyzer 5000, which was functioning properly on the day of defendant's arrest. When the machine is ready for someone to blow into it, the words "Please Blow" would flash in green lettering (H. 75). If someone blew into the machine, the words "Please Blow" would be steady and there would be a steady tone of "beeeeeeeeeeep" (H. 75). When someone is not blowing into the machine, there would be a periodic beep every three to four seconds.

Officer Edwards stated that defendant did not submit to the breathalyzer test. Defendant only placed his mouth on the mouthpiece and did not blow. Officer Edwards believed that defendant understood him because defendant responded "yes" and "I am" when he told defendant that he was not blowing. Officer Edwards deemed the test a refusal because defendant did not give a proper [*6]sample of air into the machine. With the exception of blowing into the machine, defendant followed Officer Edwards' instructions. Defendant was very polite. Based on defendant's failure to blow into the machine, strong odor of alcoholic beverage emanating from his breath and bloodshot eyes, Officer Edwards concluded that defendant was intoxicated at the time of the test.

Officer Jeeuth did not inform defendant that his license would be suspended if he refused to

submit to the test. Due to a language barrier, Officer Jeeuth never asked defendant any of the questions that appeared on the second page of the "IDE form," including where defendant was going that night, where he started from, if he was driving, when he last drank, how much he drank, and how much sleep he got the night before (H. 52-53). At approximately 3:30 a.m., Office Jeeuth and his partner transported defendant from the 45th Precinct to the 41st Precinct. During the car ride, without being prompted by the police, defendant stated, "Let's hurry the fuck up" (H. 26).

Defendant contends that the statements made to the police should be suppressed because they were illegally obtained. Specifically, he claims that they: (1) are tainted fruit of an unlawful arrest whereby the police did not observe him commit a crime or a traffic infraction; (2) were made after he was subjected to custodial interrogation without first being advised of his Miranda rights; (3) were made without knowingly and intelligently waiving his right to remain silent; (4) were involuntarily made; and (5) were secured in violation of his right to counsel (defendant's omnibus motion, dated January 20, 2010, pp. 4, 5).

Initially, it is well-established that the legality of a stop based on a traffic infraction is measured against a reasonable suspicion standard and not probable cause. See People v. Chilton, 69 NY2d 928, 929 (1987); People v. Sobotker, 43 NY2d 559, 563-64 (1978); People v. Ingle, 36 NY2d 413, 414-15 (1975). Reasonable suspicion has been aptly defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under circumstances to believe that criminal activity is at hand." Sobotker, 43 NY2d at 564 (citation omitted). Additionally, stopping a car based upon specific and articulable facts would be justified. Id. at 563 (citation and quotations omitted). The articulable reason must be rational and not the product of whim, caprice or idle curiosity. Ingle, 36 NY2d at 420.

Here, the evidence showed that defendant drove northbound on Westchester Avenue and made a left turn onto West Farm Road. Defendant drove past a "Do Not Enter" sign and entered into a one-way street for buses only. After defendant drove in the opposite direction of the one-way street, he was pulled over by the police. Since defendant committed a traffic infraction, the police were authorized to stop defendant's vehicle. See People v. Ellis, 62 NY2d 393, 396 (1984); People v. Mims, 32 AD3d 800 (1st Dept. 2006).

As to defendant's statements, he made the first one when he was pulled over by the police.

When Officer Jeeuth explained to defendant why he was stopped, the officer smelled an odor of alcohol emanating from his breath. After asking defendant to step out of the car, the officer asked why he had made the turn and if he was lost. Defendant replied that his friend got into an accident. When asked if he had been drinking, defendant stated that he had three Coronas. [*7]

Under the circumstances, the officer's questions constituted a non-custodial investigatory inquiry for which Miranda warnings were not required. See People v. Bennett, 70 NY2d 891, 893 (1987)(investigatory inquiries about whether defendant was involved in a reported accident did not constitute custodial interrogation to which Miranda applies; although defendant was seized, he was

not in custody for purposes of the need to give Miranda warnings); People v. Goodings, 300 AD2d 50 (1st Dept. 2002), lv. denied, 99 NY2d 628 (2003) (officer was entitled to ask some investigative questions without first giving Miranda warnings where defendant was detained for prompt identification based upon reasonable suspicion that he was involved in a crime); People v. Mason, 157 AD2d 859, 860-61 (2d Dept. 1990) (the officer's question at roadside about whether defendant had been drinking constituted a noncustodial investigatory inquiry for which Miranda warnings were not required); People v. Brown, 104 AD2d 696, 697 (3d Dept. 1984), lv. denied, 64 NY2d 778 (1985) (denial to suppress statements upheld where defendant admitted to drinking without first being given the Miranda warnings since he could not have considered himself in custody simply due to officer's request to get out of car).

Defendant's second statement, "We've been here since 1:00 a.m.," was made in the holding cell area of the 45th Precinct (H. 21). At that time, neither Officer Jeeuth nor his partner asked defendant any questions. The third statement,"Let's hurry the fuck up," was made in the police car while defendant was being transported from the 45th Precinct to the 41st Precinct (H. 26). During the car ride, neither Officer Jeeuth nor her partner said or asked defendant anything. Since defendant's second and third statements were made spontaneously and not the product of police interrogation

or its functional equivalent, the police were not required to administer the Miranda warnings. See People v. Grimaldi, 52 NY2d 611, 617 (1981); People v. Ziegler, 78 AD3d 545, 546 (1st Dept. 2010); People v. Garcia, 19 AD3d 200 (1st Dept.), lv. denied 5 NY3d 882 (2005).

Refusal

Vehicle and Traffic Law § 1194(2)(f) permits the People to introduce at trial evidence that defendant refused to take a breathalyzer test " . . . 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." See People v. Thomas, 46 NY2d 100, 103 (1978), appeal dismissed sub. nom. Thomas v. New York, 444 U.S. 891 (1979). A refusal to submit to a breathalyzer test may be evidenced by words or conduct. See People v. Richburg, 287 AD2d 790, 792 (3d Dept.), lv. denied, 97 NY2d 687 (2001); People v. Massong, 105 AD2d 1154,1155 (4th Dept. 1984); People v. Davis, 8 Misc 3d 158, 163 (Bronx Co. Sup. Ct. 2005).

To establish a refusal, the People must show, by a preponderance of the evidence, that clear and proper refusal warnings were delivered to defendant and that a true and persistent refusal then followed. Davis, 8 Misc 3d at 159. The People must also show that the failure to register a sample of defendant's breath is the result of defendant's action and not of the machine's inability to register the sample. People v. Adler, 145 AD2d 943 (4th Dept. 1988), lv. denied, 73 NY2d 919 (1989). As noted in Davis, 8 Misc 3d at 163-64:

By its terms, Vehicle and Traffic Law § 1194(2)(f) applies to a persistent refusal to take the breathalyzer test; it does not apply to a mere failure to take or complete the test. The distinction is important. By using the term refusal, the Legislature made it plain that the statute is directed only at an intentional or willful refusal to take the breathalyzer test. The statute is not directed at a mere [*8]unintentional failure by the defendant to comply with the requirements of the breathalyzer test.

The requirement that defendant's refusal be intentional grows out of the evidentiary theory underlying the statute. Evidence of a refusal is admissible on the theory that it evinces a defendant's consciousness of guilt. Obviously, an unintentional failure to complete the test does not evidence consciousness of guilt.

The crucial consideration in this regard is whether defendant's conduct was deliberate. Where a defendant does not consciously intend to evade the breathalyzer test, his mere failure to take or complete the test cannot properly be regarded either as a true refusal within the meaning of section 1194(2)(f) or as evidence of consciousness of guilt.

The instructions given to a defendant by an officer administering the breathalyzer can be significant in evaluating whether that defendant intended to evade the breathalyzer test. Intentional disobedience of clear instructions given by the officer can be an indication that defendant was trying to evade the test; on the other hand, the officer's failure to give clear directions can mean that defendant failed to complete the test merely because he was confused as to what he was required to do.

(citations omitted) (emphasis in original).

First, defendant asserts that he never received sufficient refusal warnings in "clear and unequivocal" language (defendant's post-hearing memorandum of law, dated March 31, 2011, p. 6). He contends that, because there was no Spanish-speaking officer or interpreter present, no one was able to determine what he did not understand or explain the warnings in layman's terms to him (Id. at pp. 6-7). Whether defendant failed to understand the warnings or believed them to be ambiguous is not a basis for suppression. See Gagliardi v. Department of Motor Vehs., 144 AD2d 882, 884 (3d Dept. 1988), lv. denied, 74 NY2d 606 (1989). Rather, a determination of whether the refusal warnings were in "clear and unequivocal language" must be based on an objective standard independent of whether the defendant actually understood them. See People Reynolds, 133 AD2d 499, 501 (3d Dept.), lv. denied, 70 NY2d 803 (1987); Matter of Carey v. Melton, 64 AD2d 983 (2d Dept. 1978). This Court has reviewed the entire translated transcript of the refusal warnings given to defendant in Spanish, which is in evidence as People's Exhibit 5, and finds it to be clear and unequivocal on its face.

Furthermore, the hearing evidence shows that defendant understood the warnings. When Officer Edwards initially asked defendant, in English, if he wished to take the breathalyzer test, defendant stated, in Spanish, that he did not understand. Thereafter, Officer Edwards played a videotape, in Spanish, offering him an opportunity to take the breath test. At the conclusion of the videotape, Officer Edwards asked defendant if he wished to take the test, and defendant replied yes in English. After defendant attempted to blow into the machine on several occasions, but it failed to register a reading and Officer Edwards repeatedly told defendant that he was not [*9]blowing, the officer showed the videotape of the refusal warnings in Spanish. At the conclusion of the videotape, whereby defendant was asked, in Spanish, if he wished to take the test, defendant stated yes in Spanish. Under these circumstances, where the record shows that defendant understood the warnings, it cannot be said that the warnings were not given in "clear and unequivocal language."

The People, however, have not proven, by a preponderance of the evidence, that a true and persistent refusal occurred. Although the People have shown that defendant failed to complete the test, they were unable to show that he intentionally refused it. Defendant's unintentional failure to complete the test does not constitute a refusal by conduct within the meaning of V.T.L. § 1194(2)(f); nor does it evidence consciousness of guilt.

The IDTU tape shows that Officer Edwards briefly demonstrated to defendant how he should blow into the mouthpiece by holding the mouthpiece and blowing into it eight times. Officer Edwards never indicated, by words or conduct, how hard defendant should blow into the mouthpiece. He simply instructed defendant to blow into the mouthpiece for seconds. After defendant placed his mouth on the mouthpiece and leaned toward the machine, Officer Edwards told him that he was not blowing. As Officer Edwards told defendant that he had to blow, the officer twirled his right index finger. At this point, defendant got into an upright position and said, "Huh?" Officer Edwards instructed defendant to blow. When defendant placed his mouth on the mouthpiece, Officer Edwards told him that he was not blowing. Again, defendant got into an upright position and said, "Huh?"

This exchange between Officer Edwards and defendant occurred five more times. During these five exchanges, when Officer Edwards told defendant that he was not blowing, instead of saying, "Huh," defendant responded, "Yeah." During these exchanges, the officer never demonstrated to defendant how he should blow into the machine. Officer Edwards appeared to be frustrated with defendant. At one point, after playing the videotape of the refusal warnings, Officer Edwards stated, "You are not blowing" three times, looked away from defendant and continued to say, "You are not blowing" two more times. By looking away, Officer Edwards could not possibly see whether defendant was blowing into the machine. During the last attempt to blow into the machine, defendant stated, "[inaudible] blow." Less than one second later, Officer Edwards instructed defendant to stand up and he deemed the test a refusal.

Based solely on the fact that the machine did not register a reading, the officer formed an opinion that defendant was deliberately trying to evade the test. That conclusion was not wholly illogical. In the ordinary case, where, as here, the machine was working properly and where the machine does not register a reading, the usual inference would be that defendant deliberately refused to breathe into the machine. This case, however, is not one of those ordinary cases. First, the usual inference that defendant was deliberately trying to frustrate the breathalyzer machine presupposes that he had been told and understood that he had to blow vigorously for a sustained period of time.

That was not the case here. As noted in Davis, the Intoxilyzer 5000 breathalyzer machine, like the one used in this case, will not usually register a reading when the subject simply breathes into the machine in an ordinary, everyday fashion. The subject must "blow" with some degree of force for a somewhat sustained period of time. Davis, 8 Misc 3d at 165 [*10](citation omitted). Here,

the IDTU tape shows that Officer Edwards neither told defendant that he had to blow hard into the machine nor demonstrate how he should blow. Second, in most refusal-by-conduct cases, the defendant only pretends to breath into the machine. Here, the IDTU tape shows that defendant placed his mouth directly onto the machine. Officer Edwards stated in the IDTU tape that defendant refused to blow into the machine and that had he blown into the instrument, there would have been an audible sound in the instrument to indicate air passing through. There is no evidence, however, that the reason there was no audible sound was because defendant did not blow hard enough into the machine.

Thus, in this unusual case, the officer's opinion that defendant refused to blow into the machine was not warranted by the facts taken as a whole. The IDTU tape makes it apparent that defendant was trying to comply with the officer's repeated directions to blow on seven occasions. This is not the case where defendant merely pretended to blow into the machine. Rather, this is a case where it appears that defendant either did not blow hard enough for the machine to test his breath or did not understand what he needed to do in order for the machine to register a reading. Defendant was never instructed in English or Spanish (because the officers present did not speak Spanish) to blow hard into the machine. Officer Edwards did not make any effort to show defendant that he needed to blow harder into the machine. Instead, Officer Edwards simply repeated the same statement, "You are not blowing." Based on defendant's repeated response, "Huh," it is clear that he was confused by what Officer Edwards was saying to him. Perhaps defendant was confused because he was, in fact, blowing, but the officer insisted that he was not or that he did not understand what he needed to do, i.e. — blow hard into the machine.

In sum, the People have failed to meet their burden under V.T.L. § 1194(2)(f) to demonstrate that a true refusal occurred.