The People of the State of New York v. Luis Ramon Gregorio, Defendant. (2026)

The defendant is charged by information with one count each of Aggravated Driving While Intoxicated (Vehicle and Traffic Law § 1192[2-a][a]), Driving While Intoxicated: Per Se (Vehicle and Traffic Law § 1192[2]), Driving While Intoxicated, (Vehicle and Traffic Law § 1192[3]) and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]).

The defendant moves to suppress five statements, for which the People served notice pursuant to CPL 710.30(1)(a):

1. I am driving my girlfriend home, I had something to drink, I'm coming from my friend's house, I had one drink.¹

2. I seen the family over there officer, I know, I'm coming from my friend's house, by the mall, I have court tomorrow for something that happened over here where they were messing with my girlfriend, I apologize.

3. I did have something to drink tonight, I am not going to lie to you, las time I had a drink at around 9:00 P.M., about an hour and a half ago, I had that one drink, she is going to drive now.

4. I really do need some help sir I really do.

5. I was in the hospital that's why I was drinking, I understand I shouldn't be driving, I wasn't trying to cause any problems, my mother passed away.²

The defendant proffers that the statements were involuntarily given. The defendant further avers that the statements must be suppressed because the People failed to provide sufficient notice of these statements. Additionally, the defendant argues that the statements, post-seizure observations of the defendant and the results of a breath test were the fruits of an unlawful and prolonged stop and arrest and, therefore, must also be suppressed. The defendant moves to suppress all property recovered from the defendant, including the officer's observation of an alcoholic beverage container inside the defendant's driver's side door. The defendant further argues that the results of the breath test should also be suppressed because the People failed to demonstrate that the defendant voluntarily consented to the test and to enter the machine's calibration records into evidence.

A combined Huntley, Dunaway, Ingle, Mapp, Johnson hearing was conducted before this Court on March 13, 2026. The People called Police Officer Nicholas Gentile of the New York City Police Department ("NYPD") to testify. At the conclusion of the hearing, the parties requested to file written memoranda in support of their respective positions. The defendant submitted a post-hearing memorandum in support of suppression on March 23, 2026. The People filed a memorandum in opposition on March 27, 2026. Upon review of the transcript, exhibits in evidence and the parties' arguments, the Court reopened the hearing on April 13, 2026. Both the defendant and the People provided supplemental memoranda on April 27, 2026 and May 1, 2026, respectively. Based on Officer Gentile's credible and reliable testimony, the evidence introduced at the hearing and the post-hearing memoranda, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Officer Gentile is a sixteen-year veteran of the NYPD and has been assigned to Highway Patrol #5 for approximately the last ten years where his duties include monitoring motor vehicle traffic, people motoring traffic, accidents and driving while intoxicated related arrests. Prior to his current assignment, he spent three years at the 121st Precinct where his duties also included monitoring traffic. Over the course of his career, he has made approximately 400 arrests, including over 200 arrests for driving while intoxicated. In addition to his arrest history, Officer Gentile received specialized training to identify the signs of intoxication, which included recognizing the signs of impairments, operation of various instruments and field sobriety tests. Officer Gentile later explained that he received specialized training in visually estimating the speed of motor vehicles.

Officer Gentile testified that on August 4, 2025, he was working in his capacity as a police officer and was assigned to conditions, which included monitoring vehicle and traffic motoring, incidents of driving while intoxicated and vehicle infractions. He was alone, in uniform, wearing, among other things, a body-worn camera ("BWC") and driving an unmarked car, which was also equipped with a dashboard camera. A copy of the vehicle's dash camera recording, Officer Gentile's BWC recording and the recording from the Intoxicated Driver Testing Unit ("IDTU") were entered into evidence as People's Exhibit 1. He further testified that prior to arresting the defendant, he observed the defendant driving a 2012 Honda CRV in the vicinity of Port Richmond Avenue and Castleton Avenue, a public roadway in Richmond County. Officer Gentile described the location as a commercial area with multiple commercial establishments on the street front, separated by two yellow broken lines and illuminated by streetlights.

Officer Gentile observed the defendant's vehicle traveling at a high rate of speed, causing Officer Gentile to make a U-turn to follow the defendant. Officer Gentile later testified that the speed limit in the area was 25 mph, and added, based upon his training and experiences, that the defendant was traveling, at a minimum, ten miles over 25 miles an hour. As the defendant continued driving down Port Richmond Avenue, Officer Gentile observed the defendant make a U-turn in the above-described business district, striking the curb as he did so. The defendant's vehicle stopped in an open parking spot, Officer Gentile activated his lights and sirens, the defendant opened his car door and attempted to exit, causing Officer Gentile to instruct the defendant to stay in his vehicle. As he approached the defendant's vehicle, the defendant's door remained open, and Officer Gentile requested the defendant's driver's license. Officer Gentile observed the defendant to have bloodshot, watery eyes and a strong odor of an alcoholic beverage coming from his breath.

Officer Gentile asked the defendant why he was driving like that, and the defendant responded, in sum and substance, he was picking up his girlfriend from work nearby, that his mother had recently passed away and that his girlfriend was going to drive home. Officer Gentile returned to his car, and, after approximately ten minutes, approached the defendant's car again, requesting the defendant's registration. After the defendant attempted to location his car's registration, Officer Gentile continued to engage the defendant in conversation, and the defendant, responded, in sum and substance, I seen the family over there officer, I'm coming from my friend's house, I live by the mall, I have court tomorrow for something that happened over here where they were messing with my girlfriend, I apologize. Officer Gentile performed the Horizontal Gaze Nystagmus ("HGN") test, a roadside sobriety test, with the defendant, which, according to Officer Gentile, revealed the presence of nystagmus. The defendant further stated, in sum and substance, I did have something to drink tonight, I am not going to lie to you, last time I had a drink at around 9:00 P.M., about an hour and a half ago, I had that one drink, she is going to drive now. Officer Gentile offered the defendant a preliminary breath test ("PBT"), which the defendant took and revealed a blood alcohol concentration ("BAC") of .205 per centum. At approximately 10:35 p.m., Officer Gentile requested that the defendant exit the vehicle and placed the defendant under arrest. Here, upon ordering the defendant out of the vehicle, Officer Gentile observed the canned margarita in the driver's side door panel compartment and photographed it. A copy of the photograph was entered into evidence as People's Exhibit 2.

While standing outside the defendant's vehicle waiting for the defendant's girlfriend to appear, the defendant stated, in sum and substance, I really do need some help sir, I really do. After explaining the arrest to the defendant's girlfriend, the defendant was placed in the back of Officer Gentile's car where, in transport to the 120th Precinct, he stated, in sum and substance, I was in the hospital that's why I was drinking, I understand I shouldn't be driving, I wasn't trying to cause any problems, my mother passed away.

After arriving at the 120th Precinct, Officer Gentile escorted the defendant to the front desk and later to the IDTU. He testified that the IDTU room is equipped with cameras, a metal bench, an Intoxilyzer 9000a instrument, and a yellow line in the middle of the room. This Court's review of People's Exhibit 2 reveals that the center of the IDTU room is an open area free of obstruction, and in the middle of the room is a black and yellow taped line that is used for testing. An Intoxilyzer instrument used for the breath test is on the other side of the room. Upon entering the IDTU room, Officer Gentile began a twenty-minute observation of the defendant to ensure there was no residual alcohol in the defendant's mouth and that the defendant didn't consume anything else or regurgitate. During this time, the defendant was not handcuffed, nor did the defendant regurgitate or ingest anything. Officer Gentile was also not armed.

After completing the twenty-minute observation of the defendant, the defendant was asked whether he would submit to a breathalyzer test at approximately 11:44 p.m., to which the defendant consented. After the machine performed its self-calibration tests, the defendant provided a sufficient breath sample, and the Intoxilyzer 9000a indicated a BAC of .200 per centum. Officer Gentile further asked the defendant whether he would submit additional examinations. Thereafter, the defendant performed the HGN test, the walk and turn test and the one-leg stand test. The HGN test performed inside the IDTU room also indicated the presence of nystagmus. According to Officer Gentile, the defendant's performance of the walk and turn test indicated the defendant's inability to follow instructions and further indicated that his stance was off. The one-leg stand test further indicated that the defendant was unable to keep his balance.

Officer Gentile further read Miranda warnings to the defendant from a form; the defendant indicated that he understood his rights by answering "yes" to each of the questions, waived the Miranda warnings and agreed to answer Officer Gentile's questions. Officer Gentile did not have his weapons drawn nor did he make any threats or promises to the defendant. Officer Gentile further testified that it was his conclusion, based upon his personal and professional experience, that the defendant was intoxicated by alcohol.

CONCLUSIONS OF LAW

Probable Cause

Before addressing the legality of the stop of the defendant's vehicle and the defendant's arrest, the defendant first argues that the officer testified incredibly regarding his observations of the defendant's vehicle.

In assessing the credibility of witnesses, the Court "should not discard common sense and knowledge. The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case.' " In the Matter of Carl W., 174 AD2d 678, 679—680 (1st Dept1991) (quoting People v Garafolo, 44 AD2d 86, 88 (2d Dept 1974) (citations omitted). Nor should the Court "credit testimony which has all appearances of having been patently tailored to nullify constitutional objections." Id.

Here, based on the officer's testimony, as well as a review of the recordings and documents in evidence, there is no evidence contradicting the officer's testimony nor is there an alternative version of the factual events offered by the defense. Rather, contrary to the defendant's contention, the record does not support the conclusion that the Officer Gentile's testimony was "patently tailored to meet constitutional objections," (People v Maiwandi, 170 AD3d 750, 751 [2d Dept 2019]) or entirely contrary to common sense and experience (cf. People v Harris, 192 AD3d 151, 164—165 [2d Dept 2020]). Rather, the Court does not find that officer's testimony bore any of the qualities elicited in Garafalo or its progeny, and this Court, as the trier of fact in this scenario, does not find the evidence incredible as a matter of law.

The defendant further argues that even if the Court does credit the officer's testimony, the record failed to establish probable cause to believe the defendant committed a traffic infraction, namely speeding, because the evidence produced at the hearing fails to demonstrate the defendant's rate of speed.

At a suppression hearing, the People have the initial burden of presenting evidence establishing the legality of police conduct. See People v Baldwin, 25 NY2d 66 (1969); People v Malinsky, 15 NY2d 86 (1965); People v Wise, 46 NY2d 321 (1978); People v Dodt, 61 NY2d 408 (1984). Once the People have met this burden, the burden shifts to the defendant to prove the illegality of police conduct. People v Berrios, 28 NY2d 361 (1971); People v DiStefano, 38 NY2d 640 (1976).

The first issue is whether the stop of the defendant's vehicle was proper. At an Ingle hearing, the People have the burden of going forward to show that the police acted lawfully in stopping the vehicle in which the defendant was traveling. The police can lawfully stop a vehicle whenever they have probable cause to believe that the driver has committed a traffic infraction, no matter how minor the offense. People v Robinson, 97 NY2d 341, 350 (2001) (citing Whren v United States, 517 US 806, 810 [1996]); see also People v Abraham, 111 AD3d 756 (2d Dept 2013). Probable cause "does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed . . . " People v Guthrie, 25 NY3d 130, 133 (2015) (quoting People v Bigelow, 66 NY2d 417 [1985]) (emphasis added).³ Accordingly, to establish probable cause, the testifying officer must "articulate credible facts establishing reasonable cause to believe that someone has violated a law." Guthrie, 25 NY3d at 133 (quoting Robinson, 97 NY2d at 353—354).

The seminal case concerning evidentiary sufficiency of visual speed estimation is People v Olsen, 22 NY2d 230 (1968), where the Court of Appeals recognized that, in proper circumstances, the opinion evidence of police officers, uncorroborated by mechanical devices, would be sufficient to sustain a conviction for speeding. In Olsen, the Court held that the witness must meet two requirements before the testimony will be held sufficient. First, the witness must demonstrate some experience in observing the rate of moving objects, or other equally satisfactory basis for the opinion. Id. at 231-232. Second, the Court explained, consideration must be given to the nature of the variance between the subject's vehicle and the established speed limit. Id. at 232.

However, as stated above, Olsen concerns the standard for assessing the evidence to support a conviction for speeding beyond a reasonable doubt. Rather, at a suppression hearing, a traffic stop is permitted when an officer " 'has probable cause to believe that the driver of an automobile has committed a traffic violation.' " Guthrie, 25 NY3d at 133 (quoting Robinson, 97 NY2d at 349. Indeed, "A finding of probable cause does not . . . require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather, it needs merely appear more probable than not that [an offense] has taken place and that the one arrested is its perpetrator." People v Wright, 8 AD3d 304, 307 (2d Dept 2004) (citations and internal quotation marks omitted). Probable cause is established where "the existence of facts and circumstances . . . viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the defendant committed or is committing that offense." People v Brown, 256 AD2d 414, 415 (2d Dept 1998).

Here, at the hearing, a police officer with sixteen years' experience, a member of the Highway Patrol Unit who has received specialized training in the estimation of motor vehicle speed, testified that he observed the defendant's vehicle traveling faster than the posted speed limit from a very close spatial distance. Therefore, given the standard of proof required at this stage of the proceedings, the testimony at the hearing established that the police had probable cause to stop the defendant because Officer Gentile observed the defendant traveling at a rate of speed in excess of the posted speed limit. See People v McLaurin, 70 NY2d 779 (1987) (stop of speeding vehicle was justified); see also People v Grimes, 195 AD3d 642, 643 (2d Dept 2021); People v Argentina, 150 AD2d 703 (2nd Dept 1989); People v Gooden, 111 AD2d 871, 871 (2d Dept 1985).

Likewise, Officer Gentile further testified that he observed the defendant make a U-turn in a business district in violation of Section 4-05 of the Rules of the City of New York (Title 34, Chapter 4 - Traffic Rules). Because an automobile stop is lawful if it is based on "probable cause that a driver has committed a traffic infraction" (Hinshaw, 35 NY3d at 430 [internal quotation marks omitted]), Officer Gentile's stop and approach of the defendant's vehicle was lawful (People v Lawson, 43 NY3d 939, 942 [2024]).

Turning to the legality of the defendant's arrest, at a Dunaway hearing, the People have the burden of showing that there was probable cause to arrest the defendant. The defendant, however, has the ultimate burden of proving by a preponderance of the evidence that the police acted illegally. Berrios, 28 NY2d 361. "Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt." People v Mercado, 68 NY2d 874, 877 (1986). Rather, it must be "more probable than not that a crime has taken place and that the one arrested is its perpetrator." People v Carrasquillo, 54 NY2d 248, 254 (1981). Stated another way, the existence of probable cause to arrest requires information which "would lead a reasonable person who possesses the same expertise as the arresting officer to conclude, under the circumstances, that a crime is being or was committed" by the defendant. People v McRay, 51 NY2d 594, 602 (1980); see also People v Cooper, 38 AD3d 678, 679 (2d Dept 2007). Additionally, pursuant to People v Johnson, 134 Misc 2d 474, 476—477 (Crim Ct, Queens County 1987), just as "a stop without probable cause constitutes a legal basis for the suppression of physical evidence," it thus may also be the "legal basis for the suppression of a breathalyzer test result."

In order to determine whether there was probable cause to arrest a person for a violation of Vehicle and Traffic Law § 1192, the standard is whether "it is more probable than not that the defendant is actually impaired." People v Vandover, 20 NY3d 235, 239 (2012). Additionally, "The quantum of proof necessary to support an arrest for driving while impaired is far less rigorous than that required for driving while intoxicated." People v Freeman, 37 Misc 3d 142(A), 2012 NY Slip Op 52281(U), at *2 (App Term, 2d Dept, 9th & 10th Jud Dists 2012) (internal quotation marks omitted). A person violates Vehicle and Traffic Law § 1192 when he or she exhibits "actual impair[ment], to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver." Id. at 239 (quoting People v Cruz, 48 NY2d 419, 427 [1979]). Therefore, the People should provide evidence that the accused person exhibited "dimensions of actual physical coordination impairment." People v Gullo, 51 Misc 3d 150(A), 2016 NY Slip Op 50835(U), at *1 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016); see also People v Rich, 25 Misc 3d 126(A), 2009 NY Slip Op 52014(U), at * 1 (App Term, 2d Dept, 9th & 10th Jud Dists 2009).

Here, Officer Gentile testified that he observed the defendant commit two traffic infractions—traveling at a speed above the posted speed limit and perform an illegal U-turn in a business district. He further observed the defendant's vehicle strike the curb when making the illegal maneuver. Upon pulling the defendant over, Officer Gentile observed the defendant to have bloodshot, watery eyes and a strong odor of an alcoholic beverage coming from his breath. Lastly, Officer Gentile administered a preliminary breath test, which indicated a BAC of .205 per centum in the defendant's blood. Therefore, Officer Gentile possessed probable cause to arrest defendant for a violation of Vehicle and Traffic Law § 1192. See People v Troche, 162 AD2d 483 (2d Dept 1990); People v Blajeski, 125 AD2d 582, 582—583 (2d Dept 1986).

Moreover, contrary to the defendant's contentions, the defendant was not unlawfully detained in violation of his Fourth Amendment rights under Rodriguez v United States, 575 US 348 (2015). An initial traffic stop is warranted where an officer has "probable cause to believe that a traffic violation has occurred." Whren, 517 US at 810. Nonetheless, "a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." Illinois v Caballes, 543 US 405, 407 (2005). For example, "A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Id.

Under Rodriguez, authority for a traffic-stop seizure ends when the tasks tied to the traffic infraction are, or reasonably should have been, completed, unless the officer develops reasonable suspicion of criminal activity sufficient to extend the stop. Id. at 350-351. Thus, an otherwise lawful traffic stop may not be prolonged "absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. at 355. In determining whether a traffic stop has reasonably been extended into an investigatory seizure, the Court considers whether (1) the officer's action was justified at its inception, and (2) the officer diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly, during which time it was necessary to detain the defendant. United States v Foreste, 780 F3d 518, 526 (2d Cir 2015).

Here, as stated above, the traffic stop was justified at its inception, based upon the police officer's observation that defendant committed multiple traffic infractions. See Hinshaw, 35 NY3d at 430; see also Lawson, 43 NY3d at 942. Second, Officer Gentile possessed reasonable suspicion to prolong the stop past when the tasks needed to issue the traffic citations were complete. Upon pulling the defendant over, Officer Gentile observed the defendant to have bloodshot, watery eyes and a strong odor of an alcoholic beverage coming from his breath. At that point, Officer Gentile had reasonable suspicion to believe that the defendant was intoxicated and was justified in asking the defendant to take a PBT. People v De Bour, 40 NY2d 210, 223 (1976). The defendant agreed and took the test, which resulted in a reading of a BAC of .205 per centum. Having failed the test, Officer Gentile had probable cause to order the defendant out of his car and arrest the defendant for operating a motor vehicle while intoxicated. See People v Bigelow, 66 NY2d 417, 423 (1985); People v Farrell, 89 AD2d 987, 988 (2d Dept 1982).

Furthermore, Officer Gentile's recovery of the alcoholic beverage container was lawful. "Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is an instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent." People v Diaz, 81 NY2d 106, 110 (1993) (internal citations omitted). Here, Officer Gentile was in a lawful position to observe the canned margarita as it was plainly visible upon the lawful order for the defendant to exit the vehicle, had lawful access to it because of the sufficient circumstances justifying the defendant's arrest and the canned margarita's incriminating nature was immediately apparent in the context of the defendant's arrest. See People v Hira, 32 Misc 3d 129(A), 2011 N. Slip Op 51298(U) (App Term 2d Dept 2011); cf. People v Eugenio, 185 AD3d 1050 (2d Dept 2020) (police lacked reasonable suspicion to direct defendant to exit the vehicle and subsequently discovered alcoholic beverage suppressed).

Lastly, the defendant's motion to strike the additional testimony from Officer Gentile following a sidebar conference is denied. "The truth-seeking function of a suppression hearing is critical, and there is a strong public policy interest in holding culpable individuals responsible and protecting legitimate police conduct." People v Kevin W., 22 NY3d 287, 296 (2013). Moreover, "It is not guilt or innocence that is at stake in a suppression hearing, but rather whether the police had lawful cause to take the challenged action." People v Cook, 34 NY3d 412, 420 (2019). Accordingly, the "interests of justice" and "strong public policy" support amassing a complete record upon which to evaluate the lawfulness of police conduct. Id. Here, the Court's evaluation of the lawfulness of police conduct on an incomplete evidentiary record would run counter to the "strong public policy interest" voiced by the Court of Appeals in Kevin W. of "holding culpable individuals responsible and protecting legitimate police conduct" (22 NY3d at 296) and be unreasonably contrary to the "interests of justice" expressed by the Court of Appeals in Cook that "militate strongly in favor of considering this evidence" (34 NY3d at 420). Moreover, because the Court had not rendered its decision at that time, the Court was within its discretion to continue the suppression hearing. See People v Boone, 30 AD3d 535, 535 (2d Dept 2006). Additionally, the defendant was not unduly prejudiced by the Court's continued questioning because defense counsel was provided sufficient opportunity to cross-examine the witness. See Cook, 34 NY3d at 423-424; People v Lewis, 117 AD3d 751, 752 (2d Dept 2014). Further, the Court would have been within its discretion to engage in its own questioning of the People's witness. See People v Ampadu, 221 AD3d 611, 613 (2d Dept 2023).

For the foregoing reason, the defendant's Mapp, Johnson. Ingle, Dunaway motions and related motions to suppress the defendant's statements, the post-seizure observations of the defendant and the results of a breathalyzer test as the fruits of an unlawful stop and arrest are denied.

Huntley

At a hearing to suppress a statement made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant's statement was voluntary in the traditional sense. People v Anderson, 42 NY2d 35 (1977); People v Huntley, 15 NY2d 72 (1965). In Miranda v Arizona, 384 US 436, 444 (1966), the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." The question before the Court, therefore, is whether Officer Gentile engaged in "custodial interrogation" with the defendant prior to the defendant's statements. "However, both the elements of police 'custody' and police 'interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda." People v Huffman, 41 NY2d 29, 33 (1976) (emphasis added).

Regarding statements 1, 2 and 3 noticed above, the statements were the results of lawful roadside questioning. "In deciding whether a defendant was in custody...the subjective beliefs of defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v Yukl, 25 NY2d 585, 589 (1969). When determining whether a statement was voluntarily given and a defendant is in custody, the court must review the totality of the circumstances. People v Gelin, 126 AD3d 717, 718 (2d Dept 2015). Of relevance to the instant matter before this Court, with respect to the "custody" aspect of the Miranda analysis, it is well-settled that "roadside questioning of a motorist during a traffic stop does not by itself constitute custodial interrogation." People v Alls, 83 NY2d 94, 99 (1993); see also People v Mathis, 136 AD2d 746, 747 (2d Dept 1988). In this way, "Roadside detentions have been held to be noncustodial and reasonable initial interrogation attendant thereto has been held to be merely investigatory." Mathis, 136 AD2d at 748.

Accordingly, it is this Court's determination that Officer Gentile's pre-arrest, roadside detention of defendant did not constitute "custody" for Miranda purposes. The record reveals that the defendant himself stopped his motor vehicle, and that there were no coercive statements or actions made by Officer Gentile prior to the defendant's admissions regarding from and to where he was driving and that he had been drinking. Under the circumstances, Officer Gentile's questions constituted noncustodial, "reasonable initial interrogation[s] attendant" to the traffic stop and was "merely investigatory," for which Miranda warnings were not required. Mathis, 136 AD2d at 748; see also People v Williams, 81 AD3d 993, 993 (2d Dept 2011) (holding that the defendant's pre-arrest, roadside statement was not the result of custodial interrogation and therefore admissible); People v Parris, 26 AD3d 393, 394-395 (2d Dept 2006) (defendant's motion to suppress his statement was properly denied because he was not "in custody," for Miranda purposes, at time he made admission to trooper, during lawful stop of his vehicle for traffic violation, that he had smoked marijuana); People v Mason, 157 AD2d 859, 860 (2d Dept 1990) (trooper's question about whether defendant had been drinking was not the product of a custodial interrogation for which Miranda warnings would have been required).

Statements 4 and 5 noticed above, as well as the defendant's additional statements captured on BWC, were provided in a non-custodial scene where he was not subject to any questioning or other prompting from law enforcement. More specifically, there is nothing in the record to suggest that the exchange between Officer Gentile and the defendant were designed to coerce the statements at issue. Huffman, supra; see also People v DuBose, 154 AD2d 387 (2d Dept 1989). Upon review of the evidence, this court finds that the statements by the defendant constituted spontaneous utterances, not the result of interrogation or its functional equivalent, and thus were made voluntarily.

Moreover, all statements were made voluntarily under the traditional standard. There is no evidence in the record of physical or psychological coercion. See People v Chase, 85 NY2d 493, 500 (1995). Additionally, there is no evidence of "other improper conduct or undue pressure." See People v Rodney, 85 NY2d 289, 292 (1995). Finally, there is no evidence that any statement was "obtained by a promise or statement that creates a risk of falsely incriminating oneself." See Chase, 85 NY2d at 500.

Lastly, the defendant argues that the People's statement notice was insufficient and, therefore, the statements must be suppressed. Where the People intend to introduce at trial evidence of a statement made to a public servant that would be suppressible if involuntarily made, the People must, no later than 15 days after arraignment, serve defendant with a notice of intention to use the evidence. CPL 710.30; see also People v Lopez, 84 NY2d 425, 428 (1994). The result of the People's failure to provide timely or sufficient notice of the evidence is its preclusion, and "prejudice plays no part in the analysis." Id. (citing CPL 710.30[3]; People v O'Doherty, 70 NY2d 479, 486—487 [1987]). Furthermore, the failure to serve a CPL 710.30 notice or serving insufficient CPL 710.30 notice cannot be cured by discovery. Lopez, 84 NY2d at 428.

"The primary purpose of a CPL 710.30 notice is to alert the defendant to the possibility that evidence . . . may be constitutionally tainted and subject to a motion to suppress." People v Sigue, 300 AD2d 414, 415 (2d Dept 2002) (internal quotation omitted). However, the People's notice is "clearly related to defendant's preparation of pretrial motions, not his subsequent ability to defend himself at trial." Id. at 429; see also People v Rodney, 85 NY2d 289, 291-92 (1995) ("[T]he purpose of CPL § 710.30 is to inform a defendant that the People intend to offer evidence . . . so that a timely motion to suppress the evidence may be made.") As a result, the People's notice is only required to enable the defense to prepare a suppression motion, however, it is not necessarily designed to facilitate the investigation and preparation of defense strategy.

In this way, for sufficiency purposes, so long as the notice is not so erroneous as to mislead the defendant into understanding that the noticed evidence was noticeably different or misleading as to the identification procedures to which it refers, the notice is generally sufficient, even if not complete in every detail. Rather, the notice must only "inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements." Lopez, 84 NY2d at 428. Additionally, the prosecution need not provide a notice that recounts all statements verbatim, rather the statements must be "described sufficiently so that the defendant can intelligently identify them." Id. Therefore, statements made at a different time, place or under different circumstances than the noticed statement are insufficient. See e.g. People v Rhames, 58 Misc 3d 1231(A), 2018 NY Slip Op 50332(U) (City Ct, Mount Vernon 2018) (holding that notice of statements made while being transported to a police station did not include statements made at the scene; People v Utria, 165 Misc 2d 54 (Crim Ct, Queens County 1995) (holding that the notice of statements made to IDTU personnel did not include statements made to the arresting officer at the scene). Therefore, so long as the People provided the defense with timely notice of the location, date, time and summary of the statement, enabling the defendant to move to suppress the statements, the People have satisfied CPL 710.30.

Such is the situation here. While not providing the defendant with the entirety of his statements, the notice provides the defendant with sufficient information to sufficiently identify the statements to argue they were presumptively involuntary. Indeed, the notice provides the date, time, location, the officer to whom the statements were made and sufficient contents so that the defendant could identify the entire content and context of the statements so he could prepare his motion to suppress the statements. Under the circumstances presented here, the People's statement notice provided sufficient information so that the defendant and the Court could "review the circumstances under which the statement[s] w[ere] given and to determine its voluntariness, including whether it was truly spontaneous or the functional equivalent of interrogation." Chase, 85 NY2d at 500. Therefore, the defendant's motion to suppress the noticed statements due to insufficient notice is denied.

For these reasons, the defendant's motion to suppress the statements contained in the People's statement notice is denied in its entirety.

Motion to Suppress the Results of the Breath Test

The defendant further seeks suppression of the results of the Intoxilyzer test, arguing that the People failed to prove that the test was properly administered in accordance with People v Johnson, supra, and failed to introduce the calibration records. The People oppose, arguing that the defendant voluntarily consented to the examination, the stop, detention and arrest of the defendant were lawful, and the machine's calibration is irrelevant to the Court's determinations at the hearing.

To begin, as stated above, the police had probable cause to believe the defendant committed a traffic infraction justifying the stop of the defendant's vehicle, the defendant's detention was not unlawfully prolonged, and the evidence established probable cause to arrest the defendant. Furthermore, nothing in the record supports the conclusion that the police acted illegally. Accordingly, defense's motion to suppress all observations of the defendant made by the police, any tangible evidence including an alleged open container of alcohol and all evidence relating to the chemical breath test is denied on those grounds.

Additionally, the evidence established the defendant consented to the chemical breath test. Consent to a breath test can either be voluntarily given or obtained pursuant to Vehicle and Traffic Law § 1194(2), the implied consent statute. Vehicle and Traffic Law § 1194(2)(a) provides, "Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test . . . for the purpose of determining the alcoholic . . . content of the blood." There are two pre-requisites before the implied consent provision is triggered. The first is that the officer must have "reasonable grounds" that a driver violated any subdivision of Vehicle and Traffic Law § 1192. The second is that the test must take place within two hours of the arrest or two hours after a field test showed the presence of alcohol. The Court of Appeals has held that when the requisite reasonable grounds exist, even an unconscious person is deemed to have given consent to a chemical test, so long as the test is conducted within the two-hour limit. See People v Kates, 53 NY2d 591 (1981).

Here, as explained above, there was reasonable grounds or probable cause to believe the defendant violated, at a minimum, Vehicle and Traffic Law § 1192(1). Turning to the second requirement, the defendant was arrested at approximately 10:35 p.m., and Officer Gentile began administering the exam by reciting the instructions at approximately 11:44 p.m., less than two hours from the defendant's arrest. Therefore, the test was administered in accordance with Vehicle and Traffic Law § 1194(2) and the defendant is deemed to have consented to the exam.

Even if the Court were to assume that the test was not administered within two hours of his arrest, this Court would still find that the defendant voluntarily consented to the test. The determination of "whether defendant gave his voluntary consent to the administration of the test . . . generally presents a mixed question of law and fact." People v Odum, 31 NY3d 344, 348 (2018). In the context of a test administered in investigating a violation of Vehicle and Traffic Law § 1192, the People have the burden of establishing that the defendant "expressly and voluntarily" consented to the breathalyzer test. People v Atkins, 85 NY2d 1007 (1995). The People have the burden of demonstrating such voluntary consent by "clear and positive evidence." People v Capraella, 165 Misc 2d 639, 643 (Crim Ct, Queens County 1995). However, "A imple request to submit to a breathalyzer examination without more can result in a voluntary consent as long as there is no express or implied coercion by law enforcement officials, no material misrepresentation of fact, to induce the consent and no facts to suggest that any law enforcement officials in securing an individual's consent acted in a manner so fundamentally unfair as to constitute a due process violation as to negate any consent." Id. at 645. Once this burden is met by the People, the defendant bears some burden in negating consent, through either the cross-examination of witnesses or the presentation of a defense case. Id. at 644.

Here, the defendant voluntarily consented to the breath test. The evidence adduced at the hearing demonstrates that Officer Gentile explained the test to the defendant, the defendant answered affirmatively, affirmatively performed the tasks and instructions, and the evidence is devoid of any indication that the defendant refused to take such test. There was no evidence to suggest that the officers engaged in any form of implicit or overt coercion in securing defendant's consent or that defendant was so intoxicated that he was unable to understand what he was being asked to do or to consent to having it done. See People v Mojica, 62 AD3d 100, 114-115 (2d Dept 2009) (where the evidence demonstrated that the defendant was conscious, coherent and capable of exercising his right, and there was no evidence of coercion, illegality, or deception, the defendant voluntarily consented to testing); see also People v Shaw, 72 NY2d 1032 (1988); People v Thomas, 46 NY2d 100, 108 (1978).

The defendant's argument that the chemical breath test is inadmissible because the People failed to introduce the calibration records is without merit. While the argument is not suitable for the Court's determination at this hearing, any argument would affect the weight of the evidence and does not render it automatically inadmissible. Nonetheless, during the hearing, the machine is observed to be in proper working condition, Officer Gentile explained that the machine self-calibrated, and there is no evidence to suggest the machine was not in proper working condition.

Therefore, the defendant's motion to suppress the breath test and its result is denied.

CONCLUSION

Accordingly, based on the foregoing analysis and discussion, the defendant's Huntley, Dunaway, Ingle, Mapp, and Johnson motions are denied; and the defendant's motion to suppress the results of the breath test are also denied.

This opinion constitutes the Decision and Order of the Court.

Dated: May 28, 2026

Staten Island, New York

E N T E R:

RAJA RAJESWARI, A.J.S.C.

FOOTNOTES

1.   Notice of Statement 1 was served both at the defendant's arraignment on August 5, 2025, as well as the People's Supplemental Notice served on August 11, 2025, and included in the People's Certificate of Compliance ("COC"). The People also served notice of a post-arrest statement at the defendant's arraignment, in which he stated in sum and substance, I drank Corona, I rate myself an 8. However, this statement was not included in the supplemental notice, the People's COC or in their post-hearing memorandum. Therefore, the Court's decision does not address its admissibility.

2.   The People served notice of Statements 2 through 5, respectively, in the August 11 Supplemental Notice, and included the statements in their COC and post-hearing memorandum.

3.   The police can stop a car on the lesser standard of reasonable suspicion where there is evidence the driver or occupants of the vehicle have committed, are committing or are about to commit a crime. People v Bushey, 29 NY3d 158, 164 (2017); People v Spencer, 84 NY2d 749, 753 (1995). Since Vehicle and Traffic Law § 1180(d) is a traffic infraction, not a crime, the probable cause standard applies. People v Hinshaw, 35 NY3d 427, 430 (2020); People v Polanco, 57 Misc 3d 147(A), 2017 NY Slip Op 51485(U) (App Term, 2d Dept 9th and 10th Jud Dists 2017).

Raja Rajeswari, J.