PEOPLE v. MORA HERNANDEZ (2010)

The PEOPLE of the State of New York, Appellant, v. Jose MORA-HERNANDEZ, Defendant-Respondent.

Decided: October 21, 2010

SWEENY, J.P., FREEDMAN, RICHTER, MANZANET-DANIELS, ROMÁN, JJ.

Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), for appellant. M. Chris Fabricant, John Jay Legal Services, White Plains (Elizabeth M. Frederick of counsel), for respondent.

Order, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), entered on or about May 19, 2009, which granted defendant's suppression motion, unanimously affirmed.

The court properly granted defendant's motion to suppress the results of a breathalyzer test and the videotape made of the test on the ground that the officers violated his right to counsel. The police ignored defendant's repeated requests for counsel prior to the administration of the test. A defendant who has been arrested for driving while intoxicated and requests assistance of counsel generally has the right to consult with an attorney before deciding whether to consent to a sobriety test (People v. Shaw, 72 N.Y.2d 1032 [1988] ). As in People v. Gursey, 22 N.Y.2d 224 (1968), the officers prevented defendant from contacting his lawyer when there was no indication that granting defendant's request would have substantially interfered with the investigative procedure. The record contradicts the People's contention that defendant voluntarily abandoned his request for counsel when he agreed to take the test.

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