Criminal Court of the City of New York, Queens County, October 18, 2018

The Legal Aid Society (Margaret Lin of counsel) for defendant.

Richard A. Brown, District Attorney (Eric Weinstein of counsel), for plaintiff.

The defendant, Joel Manzueta, is charged with two counts of operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]) and failing to signal (Vehicle and Traffic Law § 1163 [d]).

On September 5, 2018, the court held a combined Johnson/Huntley/Mapp/Dunaway hearing; thereafter, upon hearing the arguments of the parties, the court denied the defendant's motion to suppress his statement to Officer Eduardo Martins and results from the chemical test performed at the Intoxicated Driver Testing Unit. In so ruling, the court found Officer Eduardo Martins' testimony to be credible; defendant's statement to the officer to be voluntarily made; and probable cause for the defendant's arrest.{**62 Misc 3d at 189}

Additionally, while the defendant did not initially move to preclude the portable breath test (PBT) results, the court, sua sponte, indicated that it would preclude its admission and ordered the parties to submit briefs on its admissibility in this case.

On October 5, 2018, the defendant filed the instant motion to reargue pursuant to CPLR 2221 (d) regarding the suppression of the statement; to preclude statements for which notice has not been provided; and to preclude results of the portable breath test. On October 12, 2018, the People filed their brief for the admissibility of the PBT results.^[FN*]

Civil Practice Law and Rules § 2221 (d) (2) requires that a motion for leave to reargue "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" (People v Defreitas, 48 Misc 3d 569, 576 [Crim Ct, NY County 2015] [the court has the power and discretion to correct its own mistakes, and that includes the power to grant leave to reargue, where appropriate]). Additionally, CPLR 2221 is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those already asserted (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992]).

[1] Contrary to the defendant's contentions that the officer insufficiently testified to the circumstances of the statement, the court finds that the People have met their burden of establishing that the defendant was not in custody at the time of the statement. Significantly, the officer credibly testified that he conducted a routine car stop of the defendant's vehicle upon observing the defendant fail to signal when changing lanes. During the brief car stop, the officer observed the defendant to have bloodshot watery eyes, and a strong odor of alcohol on his breath. Upon making these observations, the officer asked the defendant if he had anything to drink, to which the defendant responded that he had a drink and a half two hours ago. Further, while the officer could not recall whether the defendant was in his vehicle or at the rear of the vehicle at the time of the statement, no gun was drawn during the interaction and{**62 Misc 3d at 190} the officer specifically recalled that the defendant made the statement prior to being placed under arrest.

Moreover, to the extent that the officer testified that the statement was made after the submission to the PBT, the court finds, under the circumstances, the sequence inconsequential to the issue of custody for the purpose of Miranda. It is well-settled that a temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda (People v Bennett, 70 NY2d 891 [1987]; People v Mathis, 136 AD2d 746, 747 [2d Dept 1988]; People v Dougal, 266 AD2d 574, 576 [1999] ["(s)ince individuals who are temporarily detained pursuant to a routine traffic stop are not considered to be in custody for the purposes of Miranda, defendant's roadside detention cannot be deemed custodial"]). Here, the court is satisfied that the officer did not exceed the bounds of a normal traffic stop, as the statement was made during a brief investigatory detention (id.).

Accordingly, the defendant's motion to reargue is denied.

The defendant moves for preclusion of statement evidence for which proper notice has not been given (CPL 710.30 [3]). This branch of defendant's motion is denied as premature.

The People assert that the results of the Intoximeter Alco-Sensor FST, a portable breath test administered in the field, are admissible as direct evidence to prove that the defendant was intoxicated on April 29, 2017, at 12:54 a.m. The People argue that the results are admissible without a Frye hearing or expert testimony on the reliability of the machine, since the PBT is regulated by Vehicle and Traffic Law §§ 1194 and 1195 (1) and is on the "Conforming Products List of Evidential Breath Alcohol Measurement Devices" approved by the New York State Department of Health (10 NYCRR 59.4; Vehicle and Traffic Law § 1194 [4] [c]).

In support of their argument, the People cite to People v Hampe (181 AD2d 238, 241 [3d Dept 1992]) for the proposition that the PBT device's inclusion on the list of approved devices renders the device reliable; however, Hampe did not involve a PBT performed in the field [*3]prior to the arrest. Rather, Hampe involved results that were obtained from a breathalyzer administered at the precinct (id. at 239-240). Further, the Third{**62 Misc 3d at 191} Department in a more recent case stated that "the alco-sensor test may be used to establish probable cause for an arrest [but] is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community" (People v Kulk, 103 AD3d 1038, 1040 [3d Dept 2013]).

In any event, in the controlling Second Department case on this issue, People v Palencia (130 AD3d 1072 [2d Dept 2015]), the trial court permitted the results of the PBT device on the list of approved devices and properly administered by an officer qualified to administer the test for the limited purpose of demonstrating the state of mind of the defendant. On appeal, the Second Department, notwithstanding the device's inclusion on the list, judicially recognized the PBT as not generally accepted in the scientific community as reliable to establish intoxication and held that the PBT is generally inadmissible (id. at 1074; People v Krut, 133 AD3d 781 [2d Dept 2015]).

Therefore, while the People are correct that there is no per se bar to the admissibility of PBT results as direct evidence of intoxication, a PBT device on the list of approved devices is not a dispositive indication of reliability (see People v Palencia, 130 AD3d 1072 [2015]). To admit results of a portable breath test, the People have the burden to lay the proper foundation showing the device's reliability (id.; People v Thomas, 121 AD2d 73 [4th Dept 1986], affd 70 NY2d 823 [1987]). Specifically, the admissibility of the results of the PBT remains premised on the proper working order of the device when the test was preformed and the proper administration of the test (see People v Boscic, 15 NY3d 494, 498 [2010]). Additionally, the People must show that the chemicals used in conducting the test were of the proper kind and mixed in the proper portions (People v Alvarez, 70 NY2d 375, 380 [1987]).

[2] Here, the People have failed to make a preliminary showing that the PBT device used in this case was in proper working order on the date the test was administered to defendant and, thus, reliable. Significantly, the only documents the People provide to show the proper working order of the device are Highway District Preliminary Breath Test Instrument Service slips dated March 30, 2017, and September 18, 2017. These documents, denoted records of calibration, merely provide that calibration checks, consisting of adjusting the instrument to fit within the acceptable range, were completed on two different dates. Notably, these documents fail to show, among other things, how the test was administered in the field; whether the{**62 Misc 3d at 192} test results were recorded; whether the device contained the proper kind and mixture of chemicals in proper portions; and the testing, maintenance and operation of the device (see id.; People v Hui Chen, 57 Misc 3d 1218[A], 2017 NY Slip Op 51548[U], *3 [Crim Ct, Kings County 2017]).

Moreover, an acceptable calibration report should contain a "lot number" and "tank number" that correspond to lot and tank numbers of the PBT device administered on this defendant. However, no lot or tank number was provided for this device, thus, there are no assurances that the calibration reports pertain to this case. As such, the People have failed to adequately assure that the instrument was capable of producing accurate information when the defendant was tested.

Accordingly, the People's motion to admit the PBT results in this case is denied, and such evidence is precluded.