An information was filed against the defendant, Leon T. Codrington, charging him with Driving While Ability Impaired by Alcohol (Vehicle and Traffic Law ["VTL"] 1192 [1]).

The defendant moves to suppress, as the fruit of unlawful conduct by the police, any evidence or testimony at trial concerning his stop by police and his arrest, including any police observations, field sobriety tests, coordination tests, chemical tests, video recording(s) from body worn cameras at the scene and during his transport from the scene to the Intoxicated Driver Testing Unit ("IDTU"), and video recordings from the IDTU. The defendant also moves to suppress evidence of noticed statements made at the scene of his stop, during his transportation from the scene to the IDTU, and made at the IDTU in response to police questioning after Miranda warnings were given to him, and any reading or results of the Alco-Sensor Field Sobriety Test ("FST") portable breath test ("PBT").

The People assert that the police officers' conduct during the initial stop of the vehicle and the defendant's subsequent arrest were proper and that the officer's observations, defendant's statements, field sobriety test, PBT, IDTU coordination tests, IDTU Intoxilyzer test, and the body worn camera and IDTU videos were all lawfully obtained. The People also seek to admit into evidence on their direct case at trial the results of the PBT administered at the scene or, in [*2]the alternative, to introduce the PBT results to show the presence of alcohol in the defendant's system.

Initially the People bear the burden of presenting evidence of probable cause to show the legality of the police conduct. Once the People have met this burden, the defendant bears the ultimate burden of proving any illegality of police conduct by a preponderance of the evidence and that, therefore, the evidence should be suppressed.

The Defendant claiming to be aggrieved by an unlawful or improper acquisition of evidence, has moved to suppress three sets of noticed statements made by him to the police on the ground that they were involuntarily made pursuant to CPL 60.40. A confession or admission is admissible at trial in this State only if its voluntariness is established by the People beyond a reasonable doubt.

On July 20, 2021, the court conducted a Johnson/Huntley/Dunaway hearing. The court finds the testimony of the sole witness Officer Itin to be credible. Exhibits received into evidence were People's Exhibits 1A and 1B (two calibration records for Intoximeter Alco-Sensor FST, Serial Number 09679 and ethanol standard lot No.1351808A4, tank or solution lot # 016, expiration date August 5, 2020), People's Exhibit 2 (a disc containing two body worn camera recordings from Police Officers Itin and Anwar of the defendant's stop, arrest and transport from the stop to the IDTU), People's Exhibit 3 (Interrogation Warnings to Person in Police Custody form), and People's Exhibit 4 (a disc containing the IDTU video recording).

The Court makes the following findings of fact and law:

Officer Itin has been a member of the New York City Police Department for eight and a half years and has been assigned to Highway Patrol One for over five years. During this time he made approximately 60 arrests and 40 of those arrests involved charges of driving while intoxicated. He assisted in hundreds of driving while intoxicated arrests. Itin received specialized training in the use of the Intoximeter Alco-Sensor FST PBT, breath operator testing in the IDTU, Standardized Field Sobriety Testing ("SFST"), Advanced Roadside Impaired Driving Enforcement ("ARIDE"), and Drug Recognition Expert ("DRE"). He is required to recertify as a Drug Recognition Expert yearly and as a breath test operator every two years.

On September 19, 2019, at around 11:20 p.m., while on the Southbound Henry Hudson Parkway, Itin observed the defendant's vehicle fail to maintain its lane of traffic multiple times. The vehicle was in the left lane and the front and rear passenger side wheels repeatedly crossed over the white broken lines that separate the left lane from the center lane. Traffic was light, the road was lit by streetlights, and nothing was in the road obstructing traffic. Itin and his partner Officer Anwar followed the defendant's vehicle for approximately one quarter of a mile before stopping the defendant's vehicle.

Itin approached the vehicle and observed the driver's side window open, the defendant seated behind the wheel with the engine running, and a passenger was seated next to him. The defendant had bloodshot and watery eyes and there was a strong odor of an alcoholic beverage emanating from the defendant's breath. Itin requested the defendant's license and registration and the defendant handed him a New Jersey identification card that was not a driver's license. Itin asked the defendant if he had anything to drink tonight and the defendant answered, "Not too much."

At Itin's request, the defendant exited the vehicle and Itin observed the defendant "sagging" to one side or the other. At 11:25 p.m., Itin asked the defendant to blow into the [*3]instrument. The defendant did not refuse and said, "Okay."

The PBT was administered twice to the defendant. On the first attempt there was a problem with the air flow into the device. On the second attempt the PBT results showed a blood alcohol content reading of .08. Itin recorded the results in his memobook and on the on-line booking form and he let the defendant know that he blew over the legal limit.

Itin testified during direct examination that he observed the defendant for approximately five minutes from the time of the stop before he administered the PBT. The purpose of the observation period is to ensure there was no mouth alcohol or anything else in the defendant's mouth that might skew the results of the PBT and give an error reading on the PBT. During cross-examination, Itin testified that he observed the defendant for only two minutes (not approximately five minutes) before administering the PBT; that he did not look into the defendant's mouth to rule out the presence of mouth alcohol before administering the PBT; and that the PBT device he used does not include a slope detector that is part of the Intoxilyzer device used in the IDTU to rule out the presence of mouth alcohol.

The device used for the PBT was an Intoximeter Alco-Sensor FST. Itin is trained in the use of the device and has used the same device a few times per month for five years. When not in use, the device is stored in a Ziploc bag in Itin's locker or patrol bag. Before each use, Itin removes the manufacturer's seal on a new mouthpiece and adds it to the device. He calibrates the device himself every three months with a calibration machine, which is a blue tank of simulator solution from the manufacturer that contains .08 ethyl alcohol and he creates a record of each calibration. The device is calibrated with the simulator solution level as .08. There is a .03 margin of error for the device. To ensure an accurate reading on the device, Itin calibrates the device using the cannister to spray into the device and adjusting the device to read .08, so that it will accurately record the level of alcohol when used as a PBT. Exhibits 1A and 1B are calibration records showing that the device used in this case was calibrated and found to be in working order on August 6, 2019 and November 6, 2019. Itin does not have a certification that the solution in the cannister he used to calibrate the device was precisely .08 ethyl alcohol. He believes Highway Patrol maintains such records, and that the solution in the cannister is .08 ethyl alcohol.

Itin and Anwar transported the defendant to the IDTU at the 28th Precinct in his patrol car and arrived there at approximately 11:45 p.m. During transport, the defendant was handcuffed and seated in the back of the patrol car. Itin asked the defendant where his license was, and the defendant said that his license was coming in the mail. After a long pause, the defendant said, "Looks like I'm going to lose my license now." Itin testified that the defendant's statement did not seem as if it was in direct response to any questioning.

In the IDTU, Itin gave the defendant Miranda warnings at 12:28 a.m. and recorded the defendant's responses on the Interrogation Warnings to Person in Police Custody form. The defendant's statements recorded on the form, among others, included that he was driving for about 25 minutes before he was stopped, he was going home, he had drank a "glass," he was drinking at Brown Sugar, and that he stopped drinking "after we left." At the time of the Miranda warnings and interrogation, the defendant was seated at a desk and was not handcuffed, he had been present at the IDTU for approximately 45 minutes, and had just been given the IDTU tests. Itin, based upon his professional and personal experience and his observations of the defendant, concluded that the defendant was driving while impaired by alcohol on September 19, 2019.

A routine traffic stop is permissible when there is a factual basis to support the actions of the police (People v Ingle, 36 NY2d 413 [1975]; People v Robinson, 97 NY2d 741 [2001] [probable cause for a traffic infraction]; People v Wright, 98 NY2d 657 [2002]] [probable cause for a traffic infraction]).

In this case the People have presented sufficient evidence that the stop of the defendant on September 19, 2019 while on the Henry Hudson Parkway was proper based upon Itin's observations of the defendant's repeated failure to maintain his traffic lane, which constitutes the traffic infraction of unsafe lane change (VTL 1128 [a]).

Upon approaching the vehicle, Itin observed the defendant behind the steering wheel, with the engine running. When he requested the defendant's driver's license, Itin observed the defendant's bloodshot and watery eyes and smelled a strong odor of an alcoholic beverage emanating from the defendant's breath. Instead of producing a license, the defendant provided a New Jersey identification card and a registration. Itin asked the defendant how much he had to drink that night and the defendant said, "Not too much."

At this point Officer Itin had, at a minimum, reasonable suspicion to believe that the defendant was intoxicated or impaired and was justified in directing the defendant to exit the vehicle. The police are permitted to request or order that a driver exit their vehicle even for a traffic infraction (Pennsylvania v Mimms, 434 US 106, 108-09 [1977]; Mollica v Volker, 229 F3d 366, 369 [2d Cir. 2000] ["passengers and drivers have no Fourth Amendment interest in not being ordered out of the stopped vehicle"]).

Itin's observations — that the defendant had bloodshot and watery eyes, that a strong odor of alcohol was emanating from the defendant's breath, that the defendant was sagging when he exited the vehicle, along with the PBT results — based upon the officer's training and experience justified his conclusion that the defendant was driving while under the influence of alcohol and provided probable cause to arrest him for driving while intoxicated (People v Bigelow, 66 NY2d 417 [1985]).

Defendant contends that the court should draw an adverse inference against Itin's testimony that he observed the defendant's vehicle fail to maintain lanes multiple times just prior to the stop because the People have not produced dashboard camera video from the night of the stop. The court disagrees. Although Itin testified that his vehicle was equipped with a dashboard camera on the night of the stop, it was not established that the dashboard camera would have been recording at the time the officer made his observations or that any such video exists.

A defendant may challenge the voluntariness of a statement (CPL Sections 60.45 and 710.20); Jackson v Denno, 378 US 368 [1964]; People v Huntley, 15 NY2d 72 [1965] [requiring a court, prior to the issue of reaching the jury, to independently determine the voluntariness of a confession and to make express findings of fact]). At a Huntley hearing, the People must prove the voluntariness of the defendant's statement beyond a reasonable doubt (Huntley, 15 NY2d 72).

The noticed statements at issue are (1) the defendant's statement made at the scene of the stop, "Not too much," when he was asked how much he had been drinking that night; (2) the defendant's statement, "Looks like I'm going to lose my license now," while in the patrol car from the scene of the stop to the IDTU; and (3) the defendant's statements made and recorded on [*5]the Interrogation Warnings to Persons in Police Custody form after the defendant was provided with Miranda warnings. All three statements were properly noticed in the People's Automatic Discovery Form.

Motor vehicle stops by police officers who then inquire whether the driver had been drinking alcoholic beverages are examples of seizures of constitutional dimensions where questions possibly calling for incriminating responses may be asked but need not be preceded by Miranda warnings (Berkemer v McCarty, 468 US 420 [1984]; People v Myers, 1 AD3d 382 [2d Dept 2003], lv denied, 1 NY3d 631 [2004] [temporary roadside detention pursuant to routine traffic stop is not custodial within the meaning of Miranda]).

The Court finds that defendant's statement at the scene of the traffic stop, "Not too much," in response to Itin's question was voluntary and not the result of custodial interrogation. Therefore, the People are permitted to introduce it at trial.

The People have also met their burden to establish that the defendant's statements made in the patrol car on the way to the IDTU and at the IDTU after receiving Miranda warnings were voluntary. The body worn camera video recordings corroborate Itin's testimony that the defendant's statement, that he was going to lose his license, was made after a long pause and was not made in direct response to Itin's questions.

People's Exhibit 3, the Interrogations Warnings Form signed by Itin, indicates that the defendant was given his Miranda warnings. Itin testified that after he read Miranda warnings to the defendant, he asked him the questions set forth on People's Exhibit 3 and that the defendant provided the recorded responses. The Interrogations Warnings Form (People's Exhibit 3) and the IDTU video (People's Exhibit 4) corroborate Itin's testimony and demonstrate that the defendant knowingly and voluntarily waived his rights and provided the recorded responses to questions on the forms.

The court finds that the defendant's statements made during the stop, in the patrol car, and at the IDTU were voluntary and that the People are permitted to introduce them into evidence at trial.

The People have established, beyond a reasonable doubt, that the defendant's statements at the scene of the stop were voluntarily made because they were in response to the officer's proper investigatory questioning (see People v Centano, 76 NY2d 8437,838 [1990]; People v Zapata, 41 AD3d 109 [1st Dept 2007]). The defendant's statements in the patrol car on the way to the IDTU were voluntary. The defendant's statements in response to police questioning after he was given his Miranda warnings were also voluntary (See People v Occelin, 57 AD3d 292 [1st Dept 2008]).

The defendant's omnibus motion seeks to preclude the People from offering evidence of the PBT results on their direct case. The People assert that the results of the Intoximeter Alco-Sensor FST, a PBT administered in the field, are admissible as direct evidence to prove the defendant was impaired when he was stopped by the police on September 19, 2019.

The People contend that the PBT results of the Intoximeter Alco-Sensor FST should be admitted into evidence on their direct case to prove the element of impairment or, alternatively, that the People should be permitted to elicit testimony that defendant was administered a portable breath test and that the reading was positive for alcohol. The People contend that the reliability of the PBT results is established without a Frye hearing because the device used in this case is on the list of approved devices issued by the New York State Department of Health [*6](see VTL 1194 [4] [c]; 10 NYCRR 59.4), the device was in proper working order, and the test was properly administered. The People rely on People v Turner, 47 Misc 3d 100 (App T, 1st Dept 2015); People v Jones, 33 Misc 3d 181 (Crim Ct NY County 2011), and People v Boscic, 15 NY3d 494, 498 (2012).

It is well-settled that PBT results are inadmissible at trial to prove a motorist's intoxication because the reliability of the PBT device for that purpose is not generally accepted in the relevant scientific community, proof of proper maintenance and calibration is often lacking, and the law enforcement officer conducting the breath testing with the PBT is usually not qualified to explain how the device works (see e.g. People v Palencia, 130 AD3d 1072 [2d Dept 2015], appeal dismissed 27 NY3d 1111 [2016] [PBT results should not have been introduced even for limited purpose due to risk of undue prejudice]; see also People v Thomas, 121 AD2d 73 [4th Dept 1986], affd 70 NY2d 823 [1987]; People v Krut, 133 AD3d 781 [2d Dept 2015]; People v Palencia, 130 AD3d 1072 [2d Dept 2015]; People v Kulk, 103 AD3d 1038 [3rd Dept 2013]). However, some trial courts have held that PBT results are not automatically inadmissible on the People's direct case and that the results of an Intoximeter Alco-Sensor FST, the PBT administered in this case, may be admitted under appropriate circumstances (People v Brockington, 51 Misc 3d 1211 [A] [Crim Ct Kings County 2017]; People v Jones, 33 Misc 3d 181 [Crim Ct NY County 2011]; People v Hargobind, 34 Misc 3d 1237 [A], [Crim Ct Kings County 2012]).

However, even if this court were to find the PBT results to be admissible at trial, it will not do so in this particular case. Here, the People have failed to lay the proper foundation to establish that the PBT results are sufficiently reliable so as to be admissible on their direct case, because the defendant was observed for only two minutes before the PBT was administered (see People v Alliaj, 36 Misc 3d 682, 691 [Sup Ct, New York County 2012] [PBT results inadmissible where officer testified that only five minutes elapsed prior to administration of the PBT and that during that time officer did not observe defendant for the purpose of seeing whether he did anything which might skew the result]; People v Santiago, 47 Misc 3d 195, 201 [Sup Ct Bronx County 2014] [PBT results not admitted where officer administered test without a waiting period]; People v George, 48 Misc 3d 376 [Crim Ct, Kings County 2015] [PBT results not admitted where People failed to document careful observation of the defendant for 20 minutes prior to the administration of the PBT]; Brockington, 51 Misc 3d 1211 [A] [PBT results admitted where People demonstrated officer properly administered the test to defendant, including that he observed defendant for twenty minutes to ensure there was no mouth alcohol on defendant's breath]). PBT field test results are admissible to establish probable cause to arrest the defendant and probable cause to administer the Intoxilyzer chemical test under more controlled conditions at the IDTU (see VTL 1194 [1] [b]).

In their written response to the motion to preclude, the People contend that the PBT results should be admitted on their direct case because, among other things, "the officer waited 15-20 minutes before administering the test." The hearing evidence established that the defendant was observed for only two minutes before the PBT was administered. During closing arguments, the People referred to a decision by a court of concurrent jurisdiction in People v Bush, 2018NY003498 which held PBT results to be admissible on People's direct case.However, Bush is distinguishable because, unlike in this case where the defendant was observed for only two minutes before the PBT was administered, the defendant in Bush was observed for a full twenty-minute period before the PBT was administered. Here, the PBT results are not [*7]admissible on People's direct case.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that the defendant's motion to suppress any evidence or testimony at trial concerning his stop by police and his arrest, as the fruits of unlawful police conduct, including any noticed statements, police observations, the Intoxicated Driver Testing Unit ("IDTU") Intoxilyzer test results, the video recording(s) from body worn cameras and from the IDTU, and evidence of any statements is DENIED; and it is further

ORDERED that the defendant's motion to preclude at trial evidence of the PBT results isGRANTED; and it is further

ORDERED that the People's motion to admit at trial evidence of the PBT results isDENIED; and it is further

ORDERED that all other requests for relief not specifically addressed have been considered and are denied.

This constitutes the Decision and Order of this court.