The People of
the State of New York
against
Edinson Bueno, Defendant.
|
1456-2014
For Defendant:
Luis Diaz, Esq.
For Plaintiff:
Burim
Namani
Assistant District AttorneyOffice of the Bronx District Attorney
Richard L. Price, J.
By indictment filed May 16, 2014, the defendant is charged with aggravated driving
while intoxicated (VTL 1192 [2-a] [a]), as both a "D" and "E" felony, operating a motor
vehicle while under the influence of alcohol (VTL 1192 [2] and [3]), both as "D" and
"E" felonies, aggravated unlicensed operation of a motor vehicle in the first degree (VTL
511 [3] [a] [i]), aggravated unlicensed operation of a motor vehicle in the second degree
(VTL 511 [2] [a] [ii], [iv]), and other related charges.
Leave to Reargue
At the outset, this
court notes that nothing contained in the CPL provides for leave to reargue. But the
CPLR does, and this court is constrained to follow it. While the Appellate Division, First
Department, opined the CPLR has "no application to criminal actions and proceedings,"
it was in the context of the defendants' oral motion to set aside the verdict that the court
orally decided on the record (People v Silva, 122 AD2d 750, 750 [1986]). In
Silva, the First Department found defendants' claim that the appeal was
"procedurally flawed" pursuant to CPLR 2220 invalid because the People were not
required to serve a copy of the written order as a prerequisite to appeal where the order
was entered orally on the record (Silva at 750). Since then, however, several
courts have determined, as this court does, that where there are no applicable provisions
in the CPL concerning the issue at hand, those provisions of the CPLR that address the
issue may be applied in a criminal action (see e.g. People v Davis, 169 Misc 2d
977 [*2][County Ct, Westchester County 1996, Leavitt,
J.]; People v Radtke, 153 Misc 2d 554 [Sup Ct, Queens County 1992, Goldstein,
J.]; People v Cortez, 149 Misc 2d 886 [Crim Ct, Kings County 1990, Stallman,
J.]).
CPLR 2221 provides in pertinent part:
(d) A motion for
leave to reargue:
1. shall be identified specifically as such;
2.
shall be based upon matters of fact or law allegedly overlooked or misapprehended by
the court in determining the prior motion, but shall not include any matters of fact not
offered on the prior motion.
Notably, a party may not simply move to
reargue. Rather, a party must ask for leave to do so by identifying that reargument is
sought, and specify the basis upon which it is sought. Then, to prevail, the defendant
must demonstrate that the court "overlooked or misapprehended" matters of fact or law
(CPLR 2221 [d]). To be clear, the purpose of a motion to reargue is to offer the
unsuccessful party an opportunity to persuade the court to change its decision, not simply
provide a second opportunity to more strenuously advance its argument or present an
argument that it initially did not. Although it appears to this court that defendant merely
seeks a second bite of the apple, to the extent the defendant claims this court overlooked
or misapprehended matters of fact or law, leave to reargue this court's decision dated
October 3, 2014, pursuant to CPLR 2221 (d) is nevertheless granted.Search Warrant
By decision and
order dated October 3, 2014, this court issued a decision and order on defendant's
omnibus motion denying dismissal of the indictment or reduction of the charges, and
ordering that a combined Mapp / Ingle / Johnson / Dunaway hearing be
conducted. As part of that decision, a sua sponte in camera inspection of the search
warrant, underlying affidavit, and the minutes of the application for the search warrant
was conducted.
After carefully examining and considering the search
warrant, the supporting affidavit, a transcript of the search application proceeding
conducted before Justice Kiesel, and the applicable law, this court found that the search
warrant application was amply supported by probable cause and properly conducted. The
transcript of that proceeding reflects that Police Officer Fiote personally appeared before
her, and stated under oath that he observed the defendant seated behind the wheel of a
motor vehicle, passed out, and apparently ill. Officer Fiote further stated that the
defendant's blood alcohol content was .30. Based on that, Officer Fiote requested a
search warrant to obtain vials containing the defendant's blood from Lincoln Hospital for
further examination. Accordingly, the court finds that the search warrant was properly
issued and declines to controvert it.
Physician-Patient Privilege
Defendant argues that the vials containing his blood drawn at Lincoln Hospital are
protected by the physician-patient privilege because CPLR 4504 (a) applies the
physician-patient [*3]privilege to all persons "authorized
to practice medicine," it must include and extend to emergency medical technicians
(People v Mirque, 195 Misc 2d 375 [Crim Ct, Bronx County 2003, Greenberg J];
People v Hanf, 159 Misc 2d 748 [Co Ct, Monroe County 1994, Marks J]).
Conversely, it may be argued that since CPLR 4504, which also addresses the
physician-patient privilege, omits emergency medical technicians from those authorized
to practice medicine such as a registered nurse, dentist or podiatrist, the privilege must
not extend to emergency medical technicians.Notably, while there exists a dearth of
law on this issue, there appears to be a distinction between emergency medical
technicians that administer medical treatment at the behest or direction of a physician
(People v Mirque, supra; People v Ackerson, 149 Misc 2d 882
[Co Ct, Monroe County 1991, Bristol J]). Ackerson essentially holds that the
physician-patient privilege applies only where an emergency medical technician acts as
an agent of a physician. Mirque holds that the privilege applies where an
emergency medical technician obtains a patient's medical information that must be
disclosed to the hospital's medical staff. The question is, however, whether such an
agency relationship must be expressly created or whether it is impliedly established
merely upon administering medical treatment. Mirque suggests the latter. But this
issue focuses on a patient's medical information that must be disclosed to a treating
physician or hospital staff.
To be clear, though not necessarily dispositive here, there is little dispute that an
emergency medical technician's observations are not subject to the physician-patient
privilege. While the physician-patient privilege applies to medical professionals that
acquire medical diagnosis and treatment information through their knowledge, training
or skill, it does not extend to conspicuous observations that even a layman could make
(In the Matter of Grand Jury Investigation in NY County, 98 NY2d 525 [2002]).
Under appropriate circumstances, any person may be capable of observing whether a
person's breath smells of alcohol, speech is slurred or incoherent, or balance is unsteady;
no special skill or training is required, let alone medical. Accordingly, such observations
are not protected by the physician-patient privilege (People v Hedges, 98 AD2d
950 [4th Dept 1983]; People v Beneway, 148 Misc 2d 177 [Co Ct, Columbia
County 1990, Leaman J]).
That leaves the sole issue of whether the blood itself is subject to the
physician-patient privilege. Though it is unclear who at Lincoln Hospital drew the
defendant's blood and under what circumstances, it is axiomatic that it was obtained by a
technician administering medical treatment as an agent of the treating physician.
Contrary to defendant's assertion, nothing contained in CPLR 4504 (a) directly or
inferentially supports the view that the physician-patient privilege somehow precludes
disclosure of blood samples seized pursuant to a lawfully issued and executed warrant in
compliance with CPL 690.10. And thus far, no court has held otherwise. In fact, courts
have concluded precisely the opposite (People v Elysee, 49 AD3d 33 [2nd Dept 2007], affd
12 NY3d 100 [2009]).[FN1]
Although Elysee is a Second Department case, it [*4]has been held that the Appellate Division is a state court
that has been divided into departments for administrative convenience. Thus, stare
decisis requires that in the absence of controlling authority, departments follow precedent
set by other departments unless, of course, the Court of Appeals has previously ruled on
the issue (Mountainview Coach Lines, Inc. v Storms, 102 AD2d 663 [2nd Dept
1984]). Elysee therefore controls.
Additionally, the Supreme Court has ruled that there are limited circumstances
under which a search warrant is not required for drawing a blood sample in alcohol
related cases (Missouri v McNally, 133 S Ct 1552 [2013]). Such willingness
supports the conclusion that the existence of a valid search warrant dispels any
physician-patient issues. Simply put, not only is the physician-patient privilege entirely
inapplicable to blood samples, arriving at any other conclusion defies both logic and
rationality as it would per se prohibit the seizure of material evidence otherwise
supported by the requisite probable cause.This constitutes the decision and order of
the court.
Dated: March 2, 2015E N T E R
__________________________________
Richard Lee Price, J.S.C.
Footnotes
Footnote 1:This court notes that
while the Court of Appeals affirmed the Second Department's decision in Elysee,
it declined to "decide whether CPLR 4504 applies" because "[p]ursuant to Vehicle and
Traffic Law § 1194(2)(a), [a]ny person who operates a motor vehicle in this state
shall be deemed to have given consent to a chemical test of . . . breath, blood, urine, or
saliva, for the purpose of determining the alcoholic and/or drug content of the blood.'"