On December 5, 2023, this court conducted a combined Huntley/Johnson/Dunaway hearing. The following constitutes the court's findings of fact and conclusions of law.

At the hearing, the People called two witnesses, New York State Police Trooper Michael Mulligan and New York State Police Trooper Ishmael Menjivar. The People admitted each officer's body-worn camera footage as exhibits. The court credits each officer's testimony in full and finds as fact all events depicted in the body-worn camera videos.

Trooper Michael Mulligan has been employed by the New York State Police for four-and-a-half years. He has made forty to sixty DWI arrests before. He has been trained in field sobriety testing and he has also been trained in identifying common signs of intoxication. Those signs include slurred speech, swaying, and an odor of alcohol.

On April 6, 2023, at around 9:48 p.m., Trooper Mulligan was working a shift with his partner, Trooper Matthew Stone. He was in uniform and in a marked police vehicle. He was traveling on the exit ramp for Exit 41 of Interstate 278 in Queens County. There, he saw a vehicle coming down the wrong way of the exit ramp. The vehicle also did not have its headlights on. Upon seeing the vehicle traveling the wrong way without its headlights, Trooper Mulligan activated his lights and sirens. The other vehicle stopped.

Trooper Mulligan and Trooper Stone approached the vehicle, which a man named Mr. Lopez was driving. There was another man in the front passenger seat. Trooper Mulligan approached the passenger side, while Trooper Stone approached the driver side. Trooper Stone then questioned Mr. Lopez in the driver seat while Trooper Mulligan walked back to their police car. Trooper Mulligan radioed the stop in.

The troopers had Mr. Lopez exit the car and move to the side of the road. They ordered him to keep his hands out of his pockets. They asked him if he spoke English, but he did not [*2]clearly respond. Trooper Mulligan observed Mr. Lopez to have red, watery eyes and slurred speech. He also observed Mr. Lopez swaying.

Trooper Stone continued questioning him, asking him things like, "Where are you coming from?" During this questioning, Trooper Mulligan walked back to the police car and began moving the contents of the back seat into the trunk. He did this to make space in the back seat. After cleaning out space in the back seat, Trooper Mulligan retrieved a portable breath test from the car and returned to Trooper Stone and Mr. Lopez.

Trooper Mulligan then went back to Mr. Lopez's vehicle and asked the passenger for identification. He said to the passenger, "So, obviously you guys are drinking and driving. I can see it right there, okay, the cup."

Trooper Mulligan then walked back to Mr. Lopez and Trooper Stone, where Trooper Stone was trying to administer a horizontal gaze nystagmus test. It did not appear that Mr. Lopez understood the trooper's instructions. The troopers accused Mr. Lopez of "playing games." Trooper Mulligan said to Mr. Lopez, "I can smell the alcohol from over here," while standing a few feet away. "I see it in your center console, too," he said. This was at 9:54:43 p.m., as reported by Trooper Mulligan's body-worn camera timestamp. The officers then asked Mr. Lopez how much he had to drink and accused him of slurring his words.

From this conversation, it is apparent that Mr. Lopez only spoke broken English, if at all. He appeared to say that he had drank six Modelos. The troopers continued trying to administer the horizontal gaze nystagmus. They again told him to keep his hands out of his pockets. Trooper Mulligan said, "You got one more shot, then you're coming back with us."

At about 9:56 p.m., Trooper Ishmael Menjivar arrived at the scene and got out of his car. Trooper Menjivar is a New York State Trooper, and he has been one for six years. Before that, he was a customs immigration officer for three years. As a state trooper, he has been involved in over thirty DWI arrests. He was trained at the academy in making DWI arrests and in identifying common signs of intoxication. Those include the odor of alcohol, bloodshot, watery eyes, a flushed face, and unsteadiness. On April 6, 2023, Trooper Menjivar was in uniform and in a marked police vehicle.

Upon arriving, Trooper Menjivar saw Troopers Mulligan and Stone, as well as Mr. Lopez. Trooper Mulligan approached him and asked him to speak to Mr. Lopez in Spanish. Trooper Menjivar testified that Trooper Mulligan advised him at this point that the vehicle was driving the wrong way on the ramp and that the driver was impaired by alcohol. (Tr. at 23).

Trooper Menjivar started questioning Mr. Lopez in Spanish. Trooper Menjivar speaks Spanish fluently and has been speaking it all his life. Trooper Menjivar asked Mr. Lopez if he had anything to drink, which he admitted. Mr. Lopez told him he had a six or twelve pack of beer. Trooper Menjivar also asked Mr. Lopez, in Spanish, where he was coming from. He said he was coming from home. Trooper Menjivar did not understand the rest of what Mr. Lopez said, as it was mumbled. During this questioning, he observed Mr. Lopez to have a flushed face, watery, bloodshot eyes, and a strong odor of alcohol.

The troopers continued trying to administer a horizontal gaze nystagmus test to Mr. Lopez. They also tried to administer a portable breath test but did not get a reading.

The troopers placed Mr. Lopez into handcuffs at 10:01 p.m. At no time prior did the officers read Mr. Lopez his Miranda rights.

At a Dunaway/Johnson hearing, the People have the initial burden of going forward to establish, prima facie, that each police action was lawful. (See, e.g., People v. Harris, 192 AD3d 151, 157-58 [2d Dep't 2020]). If the People meet their burden of production, the burden then shifts to the defense to show, by a preponderance of the evidence, that the police act was unlawful. (See, e.g., id.).

First, the People have established that the police stop of Mr. Lopez's vehicle was lawful. An automobile stop is lawful only when based on "probable cause that a driver has committed a traffic violation"; "reasonable suspicion that the driver or occupants have committed, are committing, or are about to commit a crime"; or "nonarbitrary, nondiscriminatory, uniform highway traffic procedures." (People v. Hinshaw, 35 NY3d 427, 430 [2020] [internal quotation marks omitted]). Driving the wrong way down a one-way road constitutes a traffic infraction, (V.T.L. § 1127[a]), as does driving at 10:00 p.m. without one's headlights turned on, (V.T.L. § 375[2][a]). The defense has not proven that the stop was unlawful.

Second, the People establish that the police's arrest of Mr. Lopez for violating V.T.L. § 1192 was lawful. "[T]he legality of [such] an arrest . . . is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 1192." (People v. Hilker, 133 AD2d 986, 987-88 [3d Dep't 1987]; see also People v. Gingras, 22 Misc 3d 22, 23 [App. Term, 2d Dep't 2008] [same]). Thus, the court must consider whether the police possessed probable cause of V.T.L. § 1192[1], driving while ability impaired by alcohol. The police observed Mr. Lopez driving the wrong way down a one-way street. Upon questioning him outside of his car, the police observed him to have bloodshot, watery eyes. They also smelled alcohol coming from his person and saw that he was unsteady on his feet. In addition, they heard him slurring his speech. These circumstances establish probable cause to believe that Mr. Lopez was impaired by alcohol. The defense has not proven otherwise.

Accordingly, the Dunaway/Johnson motion is denied.

At a Huntley hearing, the People must show that a statement they intend to introduce at trial was not obtained in violation of Miranda. Every person has a fundamental constitutional privilege against self-incrimination. (U.S. Const. amend. XIV; NY Const. Art. 1 § 6). "It is basic that ours is an accusatorial and not an inquisitorial system[,] a system in which the State must establish guilt by evidence independently and freely secured and not by coercion to prove its charge against an accused out of his own mouth." (People v. Anderson, 42 NY2d 35, 37 [1977]).

To protect the privilege against self-incrimination from "custodial police interrogation[s]," the U.S. Supreme Court created the Miranda rule. (See generally Dickerson v. United States, 530 U.S. 428, 435-38 [2000]). A custodial police interrogation "by its very nature, isolates and pressures the individual." (Id. at 435). Thus, "even without employing brutality," such an interrogation "exacts a heavy toll on individual liberty," "trades on the weakness of individuals," and "blurs the line between voluntary and involuntary statements." (Id. [internal quotation marks omitted]). These problems "heighten[] the risk that an individual will not be accorded his privilege . . . not to be compelled to incriminate himself." (Id. [internal quotation marks omitted]). As a result, before the police may interrogate a person in their custody, they must first apprise that person of the Miranda rights.

Accordingly, the People "have the burden of demonstrating, beyond a reasonable doubt," [*3]that the accused person "knowingly, intelligently, and voluntarily waived [their] Miranda rights." (People v. Dale, 207 AD3d 651, 651 [2d Dep't 2022]). Where relevant, the People must also "prove beyond a reasonable doubt that the individual was not in custody before Miranda warnings were given." (E.g., People v. McCoy, 89 AD3d 1218, 1219 [3d Dep't 2011]).

Police custodial interrogation involves two concepts—police custody and interrogation. Generally, "[t]he standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave." (People v. Trice, 213 AD3d 954, 956 [2d Dep't 2023]; see also People v. Baez, 95 AD3d 654, 654-55 [1st Dep't 2012] [noting the same]).

However, an "ordinary" traffic stop does not put a person into police "custody" as the Miranda rule envisions. (Berkemer v. McCarty, 468 U.S. 420, 437 [1984]). Most ordinary traffic stops are understood as "analogous to a so-called Terry stop." (Id. at 439 [internal quotation marks omitted]). Nonetheless, the Berkemer rule does not permit police to "simply delay formally arresting detained motorists" and "subject them to sustained and intimidating interrogation at the scene of their initial detention." (Id.). "If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." (Id.). Thus, there is no "absolute rule" that "all motorist detentions" can never constitute "custody" for Miranda purposes. (Pennsylvania v. Bruder, 488 U.S. 9, 10 n.1 [1988] [per curiam]).

In this case, the court agrees that the car stop began as the type of temporary detention that Berkemer contemplated. The officers had observed Mr. Lopez committing a traffic infraction, had ordered him out of the car, and had questioned him about their observations.

However, by 9:54:43 p.m., the nature of the detention had changed substantially. Trooper Mulligan had said to Mr. Lopez, "I can smell the alcohol from over here," while standing a few feet away. That signaled to Mr. Lopez that the officer could smell a very strong odor of alcohol. Trooper Mulligan had also told Mr. Lopez, "I see [the alcohol] in your center console, too." He had accused Mr. Lopez of slurring his words, a classic indicum of intoxication that everyone knows. And, of course, Mr. Lopez was aware that he was observed driving a vehicle—poorly.

Under these circumstances, no reasonable person would have believed that the police were not going to arrest them. (See Baez, 95 AD3d at 654-55 [an officer's threat of the possibility of arrest transformed an encounter from an ordinary roadside detention to Miranda custody]; cf. Berkemer, 468 U.S. at 437-38 [noting an "ordinary traffic stop" as one that is "presumptively temporary and brief," where a reasonable motorist expects that "he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, . . . but that in the end he most likely will be allowed to continue on his way."]). As a result, for Miranda purposes, once Trooper Mulligan had made these statements to Mr. Lopez, by 9:54:43 p.m., Mr. Lopez was in police custody.^[FN1]

Moreover, the statements occurring after 9:54:43 p.m. were the product of interrogation. The police "interrogate" someone when they say or do something that they "should know [is] reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis, 446 U.S. 291, 300-02 [1980]). The questions after this point were made after the police had observed clear indicia of intoxication. They saw Mr. Lopez driving the wrong way down a one-way street, saw an open container of alcohol in his center console, smelled alcohol on his person, observed his bloodshot, watery eyes, saw him stand unsteady on his feet, and heard him slurring his words. In addition, before Trooper Menjivar questioned Mr. Lopez, Trooper Mulligan had informed him that Mr. Lopez was impaired by alcohol. (Tr. at 23). As a result, all the officers knew in their questions after 9:54:43 p.m. that asking Mr. Lopez about his drinking and driving would likely elicit an incriminating response. The police may not "delay formally arresting detained motorists" to "subject them to sustained and intimidating interrogation at the scene of their initial detention." (Berkemer, 468 U.S. at 439).

Accordingly, the Huntley motion is granted in part and denied in part. The statements occurring after 9:54:43 p.m. are suppressed. The statements occurring before 9:54:43 p.m., insofar as they were introduced at the hearing and audible in the body-worn camera footage, are not suppressed.^[FN2]

In sum, the Dunaway/Johnson motion is denied. The Huntley motion is granted in part and denied in part.

The foregoing constitutes the order and decision of the court.