Cite as: The People v. Osorio, 2013NA011338, NYLJ 1202640782807, at *1 (Dist., NA, Decided January 10, 2014)

2013NA011338

Judge Andrew M. Engel

Decided: January 10, 2014

DECISION and ORDER

 

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The Defendant is charged with driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the third degree, disobeying a traffic control device, two (2) counts of moving from his lane unsafely, turning without signaling and unlicensed operation of a motor vehicle, in violation of VTL §§1192(2), 511(1)(a), 1110(a), 1128(a), 1163(d) and 509(1), respectively.

A hearing was held before this court (Engel, J.) on November 4, 2013, pursuant to People v. Huntely, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965); Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684 (1961)and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979), to determine issues involving probable cause for the Defendant's arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, and the suppression of statements allegedly made by the Defendant.

At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 A.D.3d 866, 823 N.Y.S.2d 409 (2nd Dept. 2006), Iv. den. 7 N.Y.3d 927, 827 N.Y.S.2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the

 

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illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884 (1971); People v. DiStefano, 38 N.Y.2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, supra.; People v. Valeruis, 31 N.Y.2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625 (1977).

The People attempt to meet their burden through the testimony of Police Officer Michael Komarnicki and Police Officer Alexander Philippas. The Defendant testified and also called Jaime Barcenes and Disney Baquero to testify on his behalf. After listening to these witness and observing their demeanor on the witness stand, the court finds the People's witness to be credible and finds the Defendant and his witnesses to be less so, and makes the following findings of fact, based upon the credible testimony:

On May 22, 2013, after consuming one (1) beer, a Heineken Light, at home, at approximately 8:30 p.m., the Defendant went with some friends to a billiards establishment in Baldwin. While there the Defendant and his friends consumed some beer. At approximately 10:00 p.m. the Defendant and his friends proceeded to a restaurant on Fulton Avenue in Hempstead for a karaoke party. While at the restaurant, the Defendant consumed additional Heineken Light beers and Red Bull. The Defendant remained at the karaoke party until about 3:55 a.m. From there, driving his friend's car, the Defendant headed eastbound on Hempstead Turnpike, intending to drop off his friend and his car.

At approximately 4:00 a.m., Officer Komarnicki was on patrol, alone and in uniform, in a marked police car traveling eastbound on Hempstead Turnpike, west of its intersection with Newbridge Road. At that time, Officer Komarnicki observed a red Honda vehicle traveling in the center eastbound lane of Hempstead Turnpike drift over the broken white line into the left eastbound

 

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lane without signaling this lane change and then continue to move across a solid white line from the left eastbound lane into the right most left hand turn lane. At a green light at the intersection of Hempstead Turnpike and Newbridge Road, Officer Komarnicki then observed the Honda turn left, into the right northbound lane of Newbridge Road and drift over the broken white line into the left, into the right northbound lane of Newbridge Road and drift over the broken white line into the left northbound lane of Newbridge Road. Officer Komarnicki then followed the Honda as it turned into a gas station on the right, immediately north of Hempstead Turnpike, and initiated a traffic stop by activating his emergency lights.

The Honda stopped in the vicinity of the gas pumps; and, Officer Komarnicki stopped his vehicle a few feet behind the Honda. Officer Komarnicki then approached the driver's side of the Honda. He observed the Defendant sitting in the driver's seat and two (2) other individuals seated in the vehicle.

Officer Komarnicki asked the Defendant for his license. The Defendant, instead, produced a foreign identification card. At this time, Officer Komarnicki observed the Defendant to have glassy, red, bloodshot eyes, slurred speech, and the odor of an alcoholic beverage on his breath. Officer Komarnicki asked the Defendant where he was coming from, where he was going and if he had anything to drink that night. The Defendant stated, "I have three (3) beers." While speaking with the Defendant Officer Komarnicki determined that, while the Defendant did speak some broken English, he did have difficulty with the English language and that there was a language barrier. No effort was made at this time to ascertain whether or not there was someone available from the Nassau County Police Department who spoke Spanish. The Defendant then exited his vehicle at the instruction of Officer Komarnicki, appearing to be unsteady on his feet as he did so.

After the Defendant had exited the vehicle, on a paved area of the parking lot Officer Komarnicki then performed standardized field sobriety tests ("SFSTs"). During the Horizontal Gaze Nystagmus test ("HGN") the Defendant exhibited six (6) out of six (6) possible clues of intoxication.

 

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During the one (1) leg stand test the Defendant exhibited clues of intoxication, including putting his foot down at eleven (11) seconds without picking it up again to continue the test, as instructed. The Defendant then submitted to a preliminary breath test ("PBT"), which resulted in a reading of a blood alcohol concentration ("BAC") of. 13 percent.

Concluding that the Defendant was intoxicated, at 4:25 a.m. Officer Komarnicki placed the Defendant under arrest and transported him to the Central Testing Section ("CTS") of the Nassau County Police Department. At CTS efforts were made, without success, to obtain a Spanish speaking individual to communicate with the Defendant. At 5:25 a.m. the Defendant was presented to Officer Philippas. Officer Philippas asked Officer Komarnicki if he had advised the Defendant of his Miranda rights. Officer Komarnicki answered in the negative. Officer Komarnicki then asked the Defendant if he could read Spanish; and, after the Defendant indicated that he could, Officer Komarnicki handed the Defendant a Miranda rights card which was written in Spanish, to give the Defendant an opportunity to read those rights. Miranda rights were never read to the Defendant, either in English or in Spanish. The Defendant then appeared to Officer Komarnicki to read the card to himself, after which Officer Komarnicki asked the Defendant if he understood his rights. The Defendant is reported to have said "Yes."

Officer Philippas then asked the Defendant a series of questions, to which the Defendant responded, in English, that he was driving; that he was coming from a taxi and going to a friend's house; that he had three (3) or four (4) Heineken light to drink that evening; that he started drinking at 2:00 a.m. and stopped drinking at the same time; that he normally drinks once a week; that he last at 12:00 a.m.; that he ate chicken; that he got nine (9) hours sleep the night before; that he was not using any drugs; that he was not involved in an accident; that he was not injured or sick; that he was not disabled; that he did not have a speech problem, diabetes or asthma; and, that he was not taking any medications.

 

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REASONABLE SUSPICION AND PROBABLE CAUSE

"A police officer is authorized to stop a motor vehicle on a public highway when the officer observes or reasonably suspects a violation of the Vehicle and Traffic Law (citation omitted)." People v. Schroeder, 229 A.D.2d 917, 645 N.Y.S.2d 217 (4th Dept. 1996) See also: Liebel v. Jackson, 261 A.D.2d 474, 690 N.Y.S.2d 94 (2nd Dept. 1999); People v. Riggio, 202 A.D.2d 609, 609 N.Y.S.2d 257 (2nd Dept. 1994) Officer Komarnicki's observation of the Defendant failing to signal his lane changes or his turn provided the officer with a sufficient basis for stopping the Defendant's vehicle.

Following this lawful stop, the Defendant's glassy, red, bloodshot eyes, slurred speech, the odor of an alcoholic beverage on his breath, his admission to having consumed alcohol and admission that he did not have a driver's license, the results of the SFSTs and the PBT provided Officer Komarnicki with probable cause to believe that the Defendant had been driving while intoxicated. See: People v. Ball, 141 A.D.2d 743, 529 N.Y.S.2d 840 (2nd Dept.1988); People v. Troche, 162 A.D.2d 483, 556 N.Y.S.2d 403 (2nd Dept. 1990); People v. Schmitt, 262 A.D.2d 588, 692 N.Y.S.2d 656 (2nd Dept. 1999); People v. Gingras, 22 Misc.3d 22, 871 N.Y.S.2d 812 (App. Term 9th & 10th Jud. Dists.2008)

DEFENDANT'S STATEMENTS

After approaching the Defendant's vehicle and making his observations concerning the Defendant's condition, Office Komarnicki properly made a reasonable initial interrogation attendant to a roadside investigation. People v. Harris, 186 A.D.2d 148, 587 N.Y.S.2d 425 (2nd Dept. 1992); People v. Kearney, 288 A.D.2d 398, 733 N.Y.S.2d 460 (2nd Dept. 2001) The Defendant's alleged statement, indicating that he had three (3) beers was voluntarily made to Officer Komarnicki within the course of this limited roadside investigation, without the officer having made any promises or threats, or having used any force or coercion, and was not made in response to any improper conduct of Officer Komarnicki.

 

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There is no question that the Defendant was in custody at the time he was questioned by Officer Philippas. There is likewise no question that Officer Laurelli's questions were not merely investigative, in an attempt to clarify an otherwise ambiguous situation, but were an interrogation. Based upon the totality of the circumstances presented, the court is not convinced that the People have demonstrated, beyond a reasonable doubt, that the Defendant was properly advised of his Miranda1 rights and made a knowing and intelligent waiver thereof prior to being questioned by Officer Philippas.

"A defendant with limited command of the English language must have sufficient understanding to appreciate the import of the Miranda warnings in order to effect a valid waiver." People v. Alberto, 22 Misc.3d 786, 877 N.Y.S.2d 628 (Dist. Ct. Suffolk Co. 2008) Officer Komarnicki candidly testified that while the Defendant appeared to speak some English, there was definitely some difficulty caused by a language barrier. This clear language problem notwithstanding, Officers Komarnicki and Philippas did not provide the Defendant with the assistance of a Spanish interpreter; and, Officer Komarnicki merely handed the Defendant his Miranda rights card, which contained a Spanish interpretation of those rights. While the intention might have been to have the Defendant read the rights himself, the testimony is not clear that the Defendant actually did read the card. No effort was made to read these rights to the Defendant, either in English or in Spanish. Without more, the court does not find that the People have met their burden on this issue. See: People v. Alberto, id.; Compare: People v. Esquerdo, 71 A.D.3d 1424, 897 N.Y.S.2d 565 (4th Dept. 2010) Iv. den. 14 N.Y.3d 887, 903 N.Y.S.2d 775(2010) [defendant provided with a Miranda rights form, in Spanish, which he conceded at the suppression hearing he had no trouble understanding]; People v. Rodriguez, 208 A.D.2d 871, 617 N.Y.S.2d 835 (2nd Dept. 1994) [police read Miranda rights to the Defendant in English, while the Defendant was provided with a Miranda rights card in Spanish to read along at the same time]

 

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The court notes that the notice served by the People pursuant to CPL §710.30 contains the disclosure of alleged statements made by the Defendant recorded in a form PDCN 79. Prior to the commencement of the hearing the People stipulated that they shall be precluded at the time of trial from offering such statements.

Based upon all of the foregoing, the Defendant's application is granted to the limited extent of suppressing the statements allegedly made to Officer Philippas at CTS; and, the People shall be precluded at the time of trial from offering the Defendant's alleged statements contained in the PDCN 79. The Defendant's application is denied in all other respects.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

January 10, 2014

1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)

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