Defendant is charged with four counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [3] as an "E" felony, a "D" felony, and a misdemeanor; and Vehicle and Traffic Law § 1192 [1]). Defendant moved, among other things, for suppression of statements made by him and his refusal to submit to a chemical breath analysis on the basis that they were unlawfully obtained in violation of the Fourth Amendment of the United States Constitution and article I, § 12, of the New York State Constitution, claiming they were improper and fruits of an unlawful arrest.

Specifically, the defendant contends that: (1) his arrest was not supported by the requisite probable cause; (2) there was an insufficient basis to request he submit to a chemical breath test; (3) the refusal warnings provided were not clear and unequivocal; (4) any refusal was not persistent as required by Vehicle and Traffic Law 1194 (2) (f); (5) his statements made to the IDTU officer immediately preceding [*2]his purported refusal are subject to Criminal Procedure Law § 710.30 (1) (a) preclusion; (6) such statements were the product of a custodial interrogation and obtained without Miranda warnings; (7) failure to procure any and all Emergency Medical Service (EMS) reports constitutes a Rosario violation; and, (8) destruction of the 911 tape requires an adverse inference charge.

The District Attorney contends that the defendant's arrest was based upon sufficient probable cause, that there was a legally sufficient basis upon which to administer the Intoxilyzer test, that both the refusal warnings and defendant's refusal was entirely proper, that any statements made in connection with the administering of an Intoxilyzer test or the refusal to do so are neither subject to CPL 710.30 (1) (a) notice nor Miranda, and an adverse inference charge concerning the 911 tape's destruction is unwarranted.

On September 8, 2014, this court commenced a combined Huntley/Dunaway/Refusal hearing.^[FN1] The hearing continued, and concluded, on September 15, 2014. The People called one witnesses: Police Officer Martin Neff (PO Neff), assigned to the 43 Precinct. This court finds the testimony of PO Neff credible to the extent indicated herein. The defendant did not call any witnesses. Upon the close of testimony, this court heard oral argument from both the defendant and the People, and adjourned the matter until October 22, 2014, for decision. Pursuant to defense counsel's request, however, this court, by interim decision and order dated October 2, 2014, denied defendant's CPL 710.30 (1) (a) preclusion claim.^[FN2] On October 22, 2014, this court received a supplemental memorandum of law from the defendant in connection with his suppression claim arguing that such statements were the product of a custodial interrogation obtained without Miranda warnings.

Based upon the evidence presented, the parties' arguments, and their written post-hearing memoranda, this court finds that the defendant's arrest was supported by probable cause, that there was a reasonable basis to request he submit to a chemical blood-alcohol breath test, that his statements made to the IDTU officer were neither subject to CPL 710.30 (1) (a) preclusion nor the product of a custodial interrogation, and that that People's failure to provide EMS reports did not constitute a Rosario violation. As such, these branches of defendant's motion are denied. With regard to the defendant's purported refusal to take the Intoxilyzer chemical breath test, however, this court finds the refusal warnings were not clear and unequivocal. All evidence and testimony relating to such refusal is therefore suppressed. Finally, this court also grants defendant's application for an adverse inference charge relating to the destruction of the 911 audiotape recording.

On August 26, 2012, at approximately 3:25 a.m., PO Neff, dressed in full uniform and working with his partner, PO Schmidt, responded to Thieriot Avenue and Guerlain Street in Bronx County pursuant to "a call of an unconscious male in a vehicle" (H. 12). PO Neff testified that upon arriving, he observed the defendant alone, sitting behind the wheel of a Toyota with the keys in the ignition and the engine running (H. 59). EMS was also on the scene. No other occupants were in the vehicle. PO Neff observed the Toyota positioned at approximately a 90 degree angle into "the middle of roadway . . . several inches away from another vehicle" (H. 11-13).

PO Neff observed the defendant to be in a stupor, and noticed a heavy smell of alcohol. He testified that the defendant was unable to answer questions (H. 13). Additionally, because the driver's side of the vehicle was wedged against an obstruction, the officers positioned themselves on the passenger side to determine whether the defendant needed medical attention. PO Neff noted that while the vehicle was in park, an EMS attendant indicated that upon their arrival, the vehicle was in gear and an EMS attendant had placed it in park (H. 13-14).

Upon attempting to communicate with the defendant, PO Neff stated that he was incoherent, had slurred and indecipherable speech, and in response to the request for his license and registration, the defendant handed PO Neff his credit card. After being extricated from the vehicle through the passenger side, the defendant was "unable to stand" on his own requiring POs Neff and Schmidt to "physically hold him up." In so doing, PO Neff stated the defendant was "directly next to me . . . [and] had a very heavy odor of alcohol" (H. 15). At no time was the defendant asked about his medical history, or whether he required immediate medical attention (H. 15, 73-74, 90). But having made these observations, and based on his training and experience, PO Neff concluded that the defendant was intoxicated. At approximately 3:44 a.m., PO Neff placed the defendant under arrest for operating a motor vehicle while under the influence of alcohol (H. 16-17).

After being placed under arrest, the defendant was transported to the 45 Precinct at approximately 4:10 a.m. for the purpose of administering an Intoxilyzer breath test. PO Neff stated that upon arriving, the defendant "wasn't able to hold himself up, so my partner and I physically had to carry him into the 45 Precinct." Once inside, New York City Police Department Highway Patrol Officer Cardamone (PO Cardamone) initiated the breath test by asking:

PO Cardamone then offered the defendant an opportunity to submit to an Intoxilyzer breath test at approximately 5:00 a.m., which was preserved on [*3]videotape (H. 17-18).^[FN3] The videotape reflects that the defendant responded by asking, "Um . . . Do I? Should I? . . . I don't know." PO Cardamone then stated:

CPL 140.10 (1) (b) provides, "[s]ubject to the provisions of subsection two, a police officer may arrest a person for: A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise." Probable cause, or reasonable cause, does not require proof "sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a [*4]reasonable belief that an offense has been or is being committed . . . The legal conclusion is to be made after considering all of the facts and circumstances together" (People v Bigelow, 66 NY2d 417, 423 [1985], quoting People v McRay, 51 NY2d 594, 602; see also People v Maldonado, 86 NY2d 631, 635 [1995]).

At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of the police conduct (People v Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]). The People must, therefore, demonstrate that the police acted with probable cause when they arrested the defendant (People v Bouton, 28 NY2d 130 [1980]; People v Berrios, 28 NY2d 361 [1974]). Once this burden has been met, the defendant is responsible for proving the conduct was illegal (Berrios, 28 NY2d at 361; Baldwin, 25 NY2d at 66). Evidence obtained by an unconstitutional search is inadmissible and vitiates conviction (see Mapp v Ohio, 367 US 643 [1961]).

In sustaining their burden, the People must demonstrate that the circumstances authorized the officer's behavior. In assessing the scope of intrusion permissible under a given set of circumstances, the New York Constitution contemplates weighing the officer's safety and the public interest against the individual's personal liberty (People v De Bour, 40 NY2d 210 [1976] [citing Terry v Ohio's federal requirement of balancing the interests involved in a police inquiry]). In contrast to the Federal Constitution's emphasis on officer safety in search and seizure matters, the New York Constitution affords greater protection to an individual's privacy (see Peter Preiser, 2010 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 140.50). Accordingly, New York has adopted standards considerably more protective of individual liberty than federal precedent mandates (id.).

De Bour establishes the basic framework for measuring the intrusiveness of a police action in New York (id.). The first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so (id. at 223). The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" (id.). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor (id.). Finally, an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime (id.).

Regarding automobile stops, the police must possess an articulable basis for requesting information from occupants of a vehicle that has been approached but not seized (People v Ocasio, 85 NY2d 982 [1995]). In other words, there must be an objective, credible reason not necessarily indicative of criminality (id.). Initial questioning, limited to a request for identification, is consistent with a request for information (People v Hollman, 79 NY2d 181, 185, 191 [1992]). Therefore, an officer's demand for a license constitutes a level-one request for information (People [*5]v Thomas, 19 AD3d 32 [1st Dept 2005]).

Here, the People presented sufficient evidence that the approach of the defendant was proper based upon the observations of PO Neff. He observed the defendant seated behind the steering wheel of a vehicle positioned at a 90 degree angle jutting into the street. PO Neff further observed the defendant, who was the sole occupant of the vehicle, unresponsive and disoriented with a strong odor of alcohol emanating from him. He was unable to answer questions, and provided his credit card to PO Neff in response to a request for his driver's license.

Defendant contends that because of the absence of any testimony that he placed the vehicle in motion or demonstrated an intention of doing so, the People failed to establish the operation element of VTL 1192. It is true VTL 1192 requires the People to establish "upon proof beyond a reasonable doubt that Defendant had recently driven the vehicle or by proof he was seated at the wheel with . . . a present intention of placing the vehicle in operation" (e.g., People v Ramsey, 35 Misc 3d 1213(A), *4 [Sup Ct, Bronx County 2012, Massaro J.]; People v Dalton, 176 Misc 2d 211, 213 [2d Dept 1998]). "Operate" under VTL 1192, however, is broader than "drive." Operation of a motor vehicle simply requires "proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion" (People v Alamo, 34 NY2d 453, 458 [1974] citing People v Marriott, 37 AD2d 868 [3d Dept 1971]; Matter of Tomasello v Tofany, 32 AD2d 962 [2d Dept 1969], lv denied 25 NY2d 742 [1969]; Matter of Prudhomme v Hults, 27 AD2d 234 [3d Dept 1967] and cases cited therein; People v Ceschini, 63 Misc 2d 15 [Crim Ct, Queens County 1970, Berger J.]; James O. Pearson, Jr., Annoation, What Constitutes Driving, Operating, or Being in Control of a Motor Vehicle for Purposes of Driving While Intoxicated Statutes or Ordinances, 93 ALR 3d 7 § III).

Given this standard, the record reflects sufficient evidence that defendant was seated behind the wheel of the car with the engine running. PO Neff's observations along with the attendant circumstances provide him with reasonable suspicion that the defendant was intoxicated, and had recently committed a violation of the Vehicle and Traffic Law (see DeBour, 40 NY2d at 223; People v Ingle, 36 NY2d 413 [1975]). His conclusion, then, that the there was probable cause to arrest the defendant for operating a motor vehicle while intoxicated was entirely justified (see Bigelow, 66 NY2d at 423; People v Goodell, 164 AD2d 321, 323-324 [4th Dept 1990]; affd, 79 NY2d 869 [1992]; People v Farrell, 89 AD2d 987, 988 [2d Dept 1982]). Accordingly, there was no need for the People to provide proof the defendant had been observed driving the vehicle, or demonstrate his intention to place it in motion.

Courts have permitted the People to use evidence of a refusal to submit to a chemical test as consciousness of guilt evidence where a defendant charged with driving while intoxicated was warned of the consequences of doing so in clear and unequivocal language (People v Reynolds, 133 AD2d 499 [3d Dept 1987]; People v Coludro, 166 Misc 2d 662 [Crim Ct Kings County 1995, Ruchelsman, J.]). The clear and unequivocal language requirement "is viewed in the eyes of the person who is being told the warnings," (People v Lynch, 195 Misc 2d 814, 817 [Crim Ct Bronx County 2003, Clark, J.]). At a minimum, there must be a showing that "through words or actions, defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal" (People v Smith, 18 NY3d 544, 551 [2012]).

Here, the IDTU videotape shows defendant refusing to take the test three times. The problem for the People, however, is that all three occurred after the flawed explanation of the consequences of doing so, which was not remedied by the subsequent administration of a proper warning (see Singh, 26 Misc 3d at *3). Such [*7]failure requires that PO Cardamone's refusal warning, defendant's subsequent refusal, all related statements, the IDTU videotape, and any corresponding evidence or testimony be suppressed.

a. Custody

In making such an assessment, courts must consider the "totality of the circumstances" (People v Centano, 76 NY2d 837 [1990]; see also Minnesota v Murphy, 465 US 420 (1984). Among such circumstances is whether the defendant voluntarily appeared at, or accompanied officers to, the police precinct and whether questioning is conducted in a non-coercive atmosphere (People v Acquaah, 167 AD2d 313 [1st Dept 1990], app denied 78 NY2d 961 [1991]; People v Davis, 161 AD2d 395 [1st Dept], app denied 76 NY2d 955 [1990]). Based on this court's findings of fact stated above, it is axiomatic that once the arresting officers transported the defendant to the precinct and physically assisted him inside, he was in custody.

b. Interrogation

A suspect is subjected to interrogation when he is confronted with "express questioning or its functional equivalent" (Rhode Island v Innis, 446 US 291 [1980]). The "functional equivalent" of express questioning is "words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect" (Innis at 301). The Court of Appeals similarly held that

Specifically relative to the destruction of a 911 audiotape, courts have held that such destruction is unreasonable when the defendant makes a timely demand for its preservation and production (People v Burch, 247 AD2d 546, 547 [2d Dept 1998]). Indeed, a demand made within thirty days of the occurrence and or arrest, the government's destruction of radio communication tapes is considered institutionally purposeful (People v. Bramble, 158 Misc 2d 411, 418 [Sup Ct, Kings County 1993] affd 207 AD2d 407 [2d Dept 1994] [evidence established tapes are routinely held for ninety days, after which only the Sprint reports are held]).

This shall constitute the decision and order of this court.

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