Criminal Court of the City of New York, New York County, May 15, 2018

Jamie Niskanen-Singer for defendant.

Cyrus R. Vance, Jr., District Attorney (Kathleen Coulson of counsel), for plaintiff.

The defendant, Roy R., is charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and driving while impaired (Vehicle and Traffic Law § 1192 [1]).

{**60 Misc 3d at 626}On May 14, 2018, a Dunaway/Huntley/Wade refusal hearing was held before this court. Police Officers Daniel Martinucci and Christopher Siciliano testified for the People. Based on their credible testimony, the court makes the following findings of fact and law.

Police Officers Daniel Martinucci and Christopher Siciliano were on uniformed patrol in a marked radio patrol vehicle beginning at 11:15 p.m. on May 20, 2017, and ending at 7:50 a.m. on May 21, 2017. At approximately 12:25 a.m., they received a radio run, which dispatched them to 10th Avenue and 203rd Street for a two-car accident. A male, Imad, was one of the car operators and he called for the police. The other operator was the defendant, Roy R.

When they arrived at the location, Officer Martinucci spoke to Imad and learned that Imad was traveling southbound on 10th Avenue, and when he tried to make a left, the vehicle behind his vehicle tried to overtake his vehicle, causing the accident. Imad observed that a male was driving the vehicle that hit him. But, there was only a female occupant standing by the other car. Imad told Officer Martinucci that the female was not the driver and that the driver was a male. Officer Martinucci testified that when he told the female that they would have to start drafting official documents for an accident report, which had to be submitted to insurance, she became scared and said that she would call the defendant back to the scene. And, when the defendant arrived at the scene at 12:45 a.m., Officer Martinucci continued his investigation. Officer Martinucci asked the defendant if he was the driver, and the defendant admitted that he drove the vehicle. Officer Martinucci also observed the defendant with a pale face, watery eyes, unsteady feet, and a moderate odor of alcohol. Officer Martinucci called for assistance to administer the portable breathalyzer test, which was offered and refused at 12:49 a.m. Officer Martinucci testified that the defendant stated that he had three drinks in response to his question whether he drank any alcohol. Officer Martinucci believed that this question was posed sometime between 12:45 a.m. to 12:49 a.m. And, he honestly testified that at that point, the defendant was not free to go because he had already determined that the defendant was driving the vehicle and involved in the accident. Officer Martinucci then went back to Imad but it is not known what, if anything, was said to him.{**60 Misc 3d at 627} Officer Martinucci testified that Imad stated, "that was the driver, yeah."

Officer Martinucci testified that once the defendant refused the portable breath test at 12:49 a.m. he was placed under arrest, but it was not officially recorded [*3]until the Sergeant came to the scene to verify that there was probable cause for an arrest at about 1:30 a.m. The defendant was transported to the 28th Precinct's Intoxicated Driver's Testing Unit (IDTU) for further testing.

At the IDTU, the IDTU technician indicated that the start time for the testing was 2:57 a.m. The IDTU technician offered the defendant an Intoxilyzer test, to which the defendant refused. The IDTU technician read the defendant refusal warnings and offered the test again. The defendant refused. Thereafter, the defendant consented to physical coordination tests, and was then administered his Miranda rights. The defendant indicated that he understood all his rights by answering yes to each question, and nodding his head up and down. The defendant then waived his right to counsel and consented to speak to Officer Martinucci. Specifically, the defendant answered questions on the IDTU questionnaire, and in sum and substance, indicated that he was driving the vehicle and he had two or three drinks before driving the vehicle. The testing concluded after the questioning.

Motion to Suppress Identification

The defendant's motion to suppress his identification by Imad is granted. While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive (see generally People v Berrios, 28 NY2d 361 [1971]).

[1] The People never identified what type of identification procedure was utilized in this case. But, the court will presume that the police conducted a showup identification. Here, the police were justified in having the female occupant call the defendant back to the scene to make an identification shortly after and near the alleged incident (see People v Brisco, 99 NY2d 596 [2003] [showup reasonable when it took place at the scene of the crime, within an hour of the commission of the crime, and in the context of a continuous, ongoing investigation]).{**60 Misc 3d at 628} But, the People presented no evidence at the pretrial hearing, except for the testimony of two police officers who did not testify as to what transpired between the officers and the female occupant, for example, what she said to the defendant to bring him back to the scene. In fact, there was no testimony as to what triggered the other witness, Imad, to say, "that was the driver, yeah" (cf. People v Jerry, 126 AD3d 1001 [2d Dept 2015] [People established reasonableness and non-suggestiveness of showup "through the testimony of the police officers who . . . provided a detailed account of the physical circumstances of the procedure"]).

Motion to Suppress Statements

[2] The defendant's statement that he had three glasses to drink at the scene of the accident is suppressed. Officer Martinucci testified that he would not have let the defendant leave at that point since he already established that the defendant was the operator of the vehicle and exhibited the indicia of intoxication. But, additionally, the defendant could not have reasonably believed he was free to leave when he was called back to the scene (see People v Baez, 95 AD3d 654 [1st Dept 2012] [no reasonable person innocent of any crime would have believed that they were free to leave]) because Officer Martinucci had called for assistance from another unit to perform a portable breath test.

But, the defendant's statement that he was driving was made in response to investigatory and noncustodial interrogation (see People v Tieman, 132 AD3d 703, 703-704 [2d Dept 2015]; People v Henriquez, 39 Misc 3d 134[A], 2013 NY Slip Op 50579[U] [App Term, 1st Dept 2013]). Officer Martinucci was trying to find out who was the actual driver of the vehicle since the female occupant claimed that she was also the driver. And, the defendant's statements made in response to the IDTU questionnaire are not suppressed because the defendant waived his Miranda rights after being advised of them (People v Henriquez, 159 AD3d 541 [1st Dept 2018]).

Motion to Suppress Refusal Evidence

The defendant's motion to suppress his refusal evidence is granted.

A person who operates a vehicle in New York is deemed to have provided consent to a chemical test of his or her breath in order to determine the blood alcohol content (see Vehicle and Traffic Law § 1194 [2] [a]). A driver of a vehicle has a qualified right to decline to voluntarily take that chemical test provided{**60 Misc 3d at 629} they have an understanding that this refusal will result in the immediate suspension and ultimate revocation of the motorist's driver's license for a period of one year (People v Sirico, 135 AD3d 19 [2d Dept 2015], citing Vehicle and Traffic Law § 1194, and People v Smith, 18 NY3d 544, 548 [2012]). This refusal "shall be admissible in any trial, proceeding or hearing" based upon a violation of Vehicle and Traffic Law § 1192, "but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" (Vehicle and Traffic Law § 1194 [2] [f]; People v Sirico, 135 AD3d 19 [2d Dept 2015]; see Matter of Gargano v New York State Dept. of Motor Vehs., 118 AD2d 859, 860 [2d Dept 1986]). And, the chemical breath test must be performed within a two-hour time period following arrest when the test is conducted pursuant to deemed consent (Vehicle and Traffic Law § 1194 [2] [a]).

But, recently, the Court of Appeals held in People v Odum (31 NY3d 344 [2018]) that the "two-hour rule," as a matter of law, also applies to one's refusal to take a breath test. The Court of Appeals held, "[h]ere, because the breathalyzer test was not performed within two hours of defendant's arrest, and the requirements necessary to obtain a court order pursuant to Vehicle and Traffic Law § 1194 (3) were not met, the test results were not admissible under the statutory scheme" (id. at 350). [*5]Simply stated, a person cannot refuse to take a test that is no longer authorized under the "deemed consent" provision in Vehicle and Traffic Law § 1194 (2) (a).

Naturally, the question turns to at what time was the defendant placed under arrest. The People argue that the official time of arrest—1:30 a.m.—should be when the two-hour time period begins. This time was the official recorded time of the arrest when a supervising officer arrived on scene and validated the arrest. But, the defendant argues that the time of arrest should not be the official time, but should be the time the defendant was actually placed in handcuffs and seated in the patrol vehicle, which by Officer Martinucci's testimony was approximately 12:49 a.m. If the People are correct, and the official time of arrest is when a defendant is actually arrested, then the defendant's refusal was made within two hours. But, on the other hand, if the defendant's assertion is correct, then his refusal was made after the two-hour expiration.

An "arrest" occurs when an "intrusion is of such magnitude that an individual's liberty of movement is significantly interrupted{**60 Misc 3d at 630} by police restraint" (see People v Jones, 172 AD2d 265, 266 [1st Dept 1991]). And, "[h]andcuffs are generally recognized as a hallmark of a formal arrest" (see United States v Familetti, 878 F3d 53, 61 [2d Cir 2017]).

[3] Here, Officer Martinucci had probable cause to arrest the defendant for driving while intoxicated as it "appear[ed] to be at least more probable than not that a crime has taken place and that the [defendant was the] perpetrator" (People v Carrasquillo, 54 NY2d 248, 254 [1981]) based on the observed indicia of intoxication and admission to driving (see People v Thomas, 68 AD3d 482 [1st Dept 2009] [defendant's appearance combined with the smell of alcohol emanating from him gave the officer probable cause to arrest for driving while intoxicated]; People v Creer, 31 Misc 3d 1 [App Term, 1st Dept 2010] [same]). Accordingly, the court finds that the time of arrest is 12:49 a.m., as testified to by Officer Martinucci because the defendant was placed in handcuffs and removed to the patrol vehicle's backseat. Thus, his refusal is inadmissible at trial.