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The PEOPLE of the State of New York v. Angel BARAHONA, Defendant.
The defendant stands charged with 3 counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Penal Law §§ 1192, 1192, 1192 ). On May 3, 2019, this Court held a combined Huntley/Dunaway/Johnson hearing. At the conclusion of the hearing, defense counsel asked for permission to submit the defendant's suppression arguments to the Court in writing and the Court granted permission. On May 20, 2019, the defendant submitted his written Post-Hearing Argument in Support of his Motion to Suppress. The defendant argues that evidence of the results of the breathalyzer test, as well as the defendant's statements at the scene and at the precinct should be suppressed as the People have not met their burden of showing that the defendant consented to the breathalyzer test or made the statements voluntarily. In particular, the defendant argues that the People have not shown that the defendant understood English well enough to have voluntarily consented to the breathalyzer test or to understand the Miranda warnings given at the precinct before he made a series of statements. The defendant further argues that, with regard to his statements at the scene, the People have not provided sufficient evidence regarding the circumstances of some of those statements; in addition, they must also be suppressed as the product of custodial interrogation without Miranda warnings.
On June 11, 2019, the People submitted an Affirmation in Opposition to the defendant's motion. After reviewing the arguments of the parties, the defendant's motion to suppress is denied in its entirety.
Findings of Fact
The People called a single witness at the hearing:1 Police Office Brian Cintron of the 48th Precinct of the New York Police Department. Police Officer Cintron testified in sum and substance as follows: Police Officer Cintron is a uniformed officer assigned to patrol, who has been a police officer for seven years and has made approximately 130 arrests; approximately 20 of those were for driving while intoxicated. Officer Cintron received training in what to look for to assess if a person was an intoxicated driver in the Police Academy. He was trained to look for slurred speech, watery, bloodshot eyes, whether someone was unsteady on their feet and, at times, whether the person had soiled clothing. He was also taught how to administer a portable breath test. In addition, based on his experiences in his personal life, the officer knew that intoxicated people had the same indicia of intoxication that he had been taught about in the Police Academy. This Court finds Officer Cintron to be credible in all respects and bases its Findings of Fact on his testimony.
On November 4, 2018, Officer Cintron and his partner, Police Officer Montanez, were in uniform on patrol in a marked police car from 11:15 p.m. to 7:15 a.m. At about 2:05 a.m., the officers received a radio run directing them to the scene of a motor vehicle accident at West Farms Road and Boston Road in Bronx County. The road was dark, but was lit by street lamps. At about 2:10 a.m., as the officers arrived at the intersection, Officer Cintron saw two vehicles sitting on the shoulder of West Farms Road. One was a dark SUV with a man sitting inside of it; the other was a yellow Ford Fusion. Officer Cintron testified that the vehicles appeared to have sideswiped each other, because the front quarter panel of the defendant's car was dented and the entire driver's side of the other vehicle was scraped and dented. The defendant was seated in the driver's seat of the Ford Fusion and another person was in the front passenger seat. Officer Cintron parked behind the SUV. The man in that vehicle told Officer Cintron that, as he was driving through the intersection, the defendant veered into his lane causing the collision. The man further stated that he could smell alcohol coming from the defendant, he appeared to be highly intoxicated, and that after the accident, the defendant had tried to leave the scene.2
Officer Cintron and his partner approached the defendant, who was seated in the driver's seat of the Ford Fusion.3 The window was down and Officer Cintron noticed that the defendant had watery, bloodshot eyes and, even though he was about a foot away from the window, he could smell the odor of alcohol coming from the defendant's breath. As Officer Cintron stood next to his partner, Officer Montanez spoke with the defendant in Spanish, asking him, “What happened?” The defendant responded in Spanish and although Officer Cintron understood what the defendant was saying, his partner nonetheless translated the defendant's response to him,4 which was, “I was driving through the intersection and the other car came and hit me.” When the defendant spoke, Officer Cintron noticed that the defendant's speech was a little slurred. Neither officer gave the defendant Miranda warnings before speaking with him as the defendant was not in custody. Officer Cintron approached the driver's side window and asked the defendant to step out of his vehicle. The defendant complied and as he got out of the car, Officer Cintron saw a wet stain on the crotch area of his pants; he also saw that he was unsteady on his feet. Although both officers carried service revolvers and a baton, neither officer had drawn their weapons when they spoke with the defendant or when the defendant was asked to get out of the car.
Officer Cintron asked his partner to ask the defendant in Spanish if he would be willing to take a breathalyzer test and Officer Montanez offered it to him. The defendant replied, “Yes.” A portable breathalyzer test was administered to the defendant — the result showed a blood alcohol level of .232. Officer Montanez placed the defendant in handcuffs. After the defendant was arrested, he was searched and car keys were recovered from his pocket.5 The defendant was placed in the back of the police vehicle. Officer Montanez drove the defendant's car back to the precinct; he told Officer Cintron that the driver's seat was wet.
The defendant was placed under arrest at 2:45 a.m. He was brought to the 45th precinct to meet with highway officers for an IDTU test. The defendant was in the holding cell for about 45 minutes; while he was in there, Officer Cintron saw the defendant speaking with other prisoners in English. Officer Cintron heard the defendant reply, “Yes,” in English when one of the other prisoners asked him a question. At some point, the defendant asked Officer Cintron in English if he could go to the bathroom and Officer Cintron agreed. While the defendant was in his cell, Officer Cintron also spoke to the defendant in English and the defendant responded to him in English.
While the defendant was at the 45th precinct, Officer Cintron noticed he had watery bloodshot eyes, was unsteady on his feet, had the odor of alcohol emanating from his breath, and had soiled clothing and slurred speech. As shown by the IDTU video, People's Exhibit 3 in evidence, and as testified to by Officer Cintron, Officer Outlaw, an IDTU officer, offered the defendant a chemical test analysis of his breath. The defendant agreed to take it, stating, “Yes,” when it was offered. Officer Cintron observed the defendant for 20 minutes before the test was administered. He did not cough, vomit or belch during the 20 minute period. At approximately 5:00 a.m., the defendant blew into the breathalyzer machine. The result was a .11. The defendant was offered a physical coordination test, but he could not complete it because he had an issue with his right knee.
The IDTU video also reflects the following in sum and substance: IDTU Officer Outlaw began by addressing the defendant as Mr. Angel Barahona, to which the defendant replied, “Yes, Sir.” The defendant also acknowledged his date of birth. Before he was asked to take the breathalyzer test, the defendant stated his name and gave his address in English. When the officer stated that he had been arrested for operating a motor vehicle while impaired, the defendant indicated that he was not. The officer explained that he was not there during the defendant's arrest, that he was just advising the defendant that he had been arrested for operating a motor vehicle while impaired, and that he was offering him a breath test. Officer Outlaw then asked the defendant if he would take the test and the defendant said, “Yes,” and nodded yes. Specifically Officer Outlaw stated, “I would like to offer you a breath test. Will you take the test? Yes or no?” The officer told the defendant where to stand and asked him again if he would take the breath test; the defendant replied, “Yeah.”6 The officer again told the defendant where to stand and after explaining that the machine was operating properly, told the defendant that, when he tells him to blow, he should take a deep breath, bend over, put the entire mouth piece into his mouth and blow into it for about 3 to 5 seconds. The defendant affirmed that he understood the officer's instructions. The officer told him that when he said blow, the defendant should keep going until he was told to stop. The officer told the defendant to step to the right and the defendant complied. The officer told the defendant to take a deep breath and keep his arms to his sides. The defendant reached for the mouth piece and the officer had to tell him two more times to keep his hands to his sides. The defendant complied and Officer Outlaw told him to lean over and blow, which the defendant did. The officer told him to keep blowing and the defendant blew into the machine continuously until the officer told him to stop, at which point the officer announced it was a .11. (People's Exhibit 3 [IDTU video] ).
When the test was completed, Officer Outlaw asked if the defendant wore contact lenses and the defendant replied, “No.” The officer then administered the Nystagmus gaze test. The defendant moved his head twice when the officer told him not to. At that point, the officer instructed the defendant not to move his head in Spanish and after that the defendant completed the test. The officer then asked the defendant to take a physical coordination test. Officer Outlaw asked if the defendant had any injuries to his leg. The defendant indicated he did not. The officer told him to put his left foot on the line and the defendant put his left foot on the line. The officer then told the defendant to put his right foot directly in front of his left and then demonstrated how to walk on the line. The defendant complied by putting his right foot in front of his left, but after following the rest of the officer's instructions, he stumbled after two steps. He then patted his leg and said something was wrong with his knee so the officer stopped the test, because the defendant was physically not able to take it. (People's Exhibit 3 [IDTU video] ).Officer Outlaw stopped the physical coordination test, at 5:07 a.m. Then, in the presence of Officer Outlaw, Officer Cintron read the defendant Miranda warnings from a sheet. (People's Exhibit 2 in evidence [Interrogation warnings to People in custody] ).7 The defendant responded affirmatively to each of the questions. The defendant was not in handcuffs when the warnings were read and none of the officers had drawn their weapons. After the warnings were completed, Officer Cintron asked the following questions in English and received the following answers:
Officer Cintron: Were you operating a vehicle?
Officer Cintron: Where were you going?
Defendant: My uh, to my sister
Officer Cintron: To your sister's house?
Officer Cintron: Where were you coming from?
Officer Cintron: Where?
Defendant: (first part inaudible) Bronx.
Officer Cintron: Where? You were going to your sister's house?
Officer Cintron: Where were you coming from?
Defendant: (some inaudible words throughout) going from my sister, and brought her to my house.
Officer Cintron: So you were going from your sister's, to your house?
Defendant: To my house, yeah. To Manhattan.
Officer Cintron: What time did you leave?
Defendant: I leave over there (inaudible,) maybe about 10:00. (inaudible)
Officer Cintron: You left around 11?
Officer Cintron: How long were you driving before you were stopped.
Defendant: 40 minutes.
Officer Cintron: What had you been drinking?
Officer Cintron: What?
Officer Cintron: So the type of drink?
Officer Cintron: The type of drink?
Officer Cintron: What type of drink?
Officer Cintron: No, no, drink. What type of drink?
Defendant: The defendant shakes his head, no.
Officer Cintron: Where were you drinking?
Officer Cintron: You started drinking at what time?
Officer Cintron: How many drinks did you consume during the last hour before you were stopped?
Defendant: I don't drink.
Officer Cintron: When did you last eat?
Defendant: About, about 8:30.
Officer Cintron: 8:30?
Officer Cintron: What did you eat?
Defendant: Some bread, and McDonalds.
Officer Cintron: Had you taken any medication or drugs?
Defendant: No, nothing.
Officer Cintron: Are you sick?
Officer Cintron: Are you injured?
Officer Cintron: Do you have any physical disabilities?
Defendant: No. Nothing.
Officer Cintron: Are you under a doctor's care?
Officer Cintron: Are you diabetic?
Officer Cintron: Do you take insulin?
Officer Cintron: Do you have allergies?
Officer Cintron: How much sleep did you have last night?
Defendant: 9:00 to 7:00.
Officer Cintron: So about 10 hours?
Defendant: nods yes.
Officer Cintron: Did you sleep today?
Officer Cintron: Are you tired?
Defendant: No. Say that again.
Officer Cintron: Are you tired?
Officer Cintron: I know you are tired, are you sleepy?
Defendant: No not at all.
Officer Cintron: Does the vehicle have any mechanical problems?
Officer Cintron: Did you feel the effect of alcohol in any way while you were driving?
Officer Cintron: Do you feel that alcohol and drugs affected your driving to the slightest degree?
Officer Cintron: How did you feel when you were driving?
Defendant: Feel good.
Officer Cintron: Would you go to work or school in this condition?
Officer Cintron: But, how you are now, would you drive?
Officer Cintron: On a scale of zero to ten.
Officer Cintron: No, no, listen. On a scale of zero to ten with zero is sober totally sober and ten being falling down drunk or too impaired to function at all, how would you rate yourself?
Officer Cintron: Do you feel that you are more sober or less sober than when youfirst got here?
Officer concludes video with time announcement, zero five thirteen.
(People's Exhibit 3 [IDTU video] ).
Conclusions of Law
At a Dunaway/Johnson hearing, the People have the burden of going forward with credible evidence tending to show that the officer's conduct was lawful. See, e.g., People v. Dodt, 61 NY2d 408, 415 (1984). If and when the prosecution meets its burden, the burden then shifts to the defendant to prove, by a preponderance of the evidence, the illegality of the police conduct and that the police obtained evidence as a result of that illegality. People v. Berrios, 28 NY2d 361, 367 (1971). At a Johnson hearing, an officer has grounds to stop a motor vehicle when the officer has a reasonable suspicion that at least one of its occupants was engaging in or about to engage in criminal activity. People v. Sobotker, 43 NY2d 559, 563-64 (1978), People v. Johnson, 253 AD2d 677, 678 N.Y.S.2d 10 (1st Dept 1998).
At the outset, although a Johnson hearing was granted in this case, the analysis set forth in Johnson does not apply here as the officers did not stop the defendant's vehicle. On the contrary, the defendant's vehicle was already stopped on the shoulder of the highway, because the defendant had been involved in a collision with another vehicle. Under these circumstances, the officers were duty bound to approach the vehicles involved and speak to the drivers in order to investigate the circumstances of the accident and to facilitate an exchange of information between the drivers. See VTL § 600(1)(b). Therefore, it was proper for the officers to approach the cars, as they did here, and speak with the drivers to gather information.
Officer Cintron and his partner spoke first with the driver of the car that was not the defendant's. The driver told the officers that the defendant had caused the accident, that the defendant had tried to leave the scene, and that the driver believed that the defendant was intoxicated. Despite having all of that information, Officer Cintron did not attempt to detain the defendant or to place him in custody. Instead, he and his partner acted reasonably by continuing their investigation, approaching the defendant and speaking with him through the open window of his car. At that point, Officer Cintron noticed that the defendant had watery, bloodshot eyes and that he had the odor of alcohol on his breath. Even then, the officers did not make any attempt to detain him, but gave the defendant the opportunity to give his side of the story. When the defendant replied, that he was driving and the other car had hit him, the officers noticed that his speech was a little slurred. Only at that point did Officer Cintron ask the defendant to step out of his vehicle and, as he did so, the officer saw a wet stain on the crotch area of his pants; he also saw that he was unsteady on his feet. After that, the defendant agreed to take a portable breathalyzer test, which showed a blood alcohol level of .232. The defendant was then placed under arrest. This Court concludes that the officers had probable cause to arrest the defendant while he was still seated in the car based simply on the odor of alcohol on his breath, his bloodshot eyes, his slurred speech, and the fact that he had been seated in the driver's seat of a car that had been involved in an accident; a car that he admitted he was driving. But they behaved prudently and waited until they had the results of the portable breath test to place him in custody at, which point, there can be no question that they had probable cause to arrest him based on the level of alcohol in his blood.
The Defendant's Statements at the Scene
In his post hearing argument in support of his motion to suppress the defendant does not argue that the officers did not have probable cause to arrest him. Rather he argues that his statements at the scene should be suppressed as the product of custodial interrogation without the administration of Miranda warnings. The Court disagrees and concludes that when the defendant made those statements, he was not in custody. As noted above, when the officers spoke with the defendant as he sat in his vehicle, they were investigating an accident. The defendant was not restrained in any way, no weapons were drawn and the questions asked about what had happened were not coercive. A reasonable man, innocent of any crime, would not have thought he was in custody under these circumstances. See People v. Yukl, 25 NY2d 585, 589 (1969). Accordingly, the administration of Miranda warnings was not required.
The defendant further argues that the defendant's statement about whether the other driver or Officer Montanez had his keys should be suppressed, because it was made when he was in custody. That statement was not elicited by any questioning by the officers, however. Rather, the defendant spontaneously asked the question without any prompting on the part of the police. Accordingly, that statement is not subject to suppression. Therefore, the defendant's motion to suppress his statements made at the scene is denied.
The Breathalyzer Test
The People have the burden of establishing consent to a breathalyzer test by clear and positive evidence. Once they have met that burden, the defendant bears the burden of negating consent. People v. Capraella, 165 Misc 2d 639, 644 (Queens County Crim. Ct. 1995). The People have met their burden and the defendant has not. The crux of the defendant's argument is that the defendant did not understand English sufficiently to understand what he was being asked to do. The defendant further argues, in essence, that he was coerced to take the breathalyzer test, because of his age, his lack of prior contact with the criminal justice system and the fact he was in law enforcement custody.
As set forth more fully below, this Court concludes that the defendant understood English sufficiently to consent to the test. The defendant's argument rests primarily on the fact that the defendant's first language is Spanish and that when he spoke with Officer Montanez at the scene of the accident he spoke in Spanish. It is the defendant's position that when he was asked to take the breathalyzer test, the request should have been made in Spanish, but because it was made in English, he was not able to understand what he was being asked in order to consent. The Court disagrees with that argument. While there can be no question that the defendant speaks Spanish, this Court notes that there was clear and positive evidence educed at the hearing that the defendant also speaks English and understands English. First, Officer Cintron credibly testified that when the defendant was in the holding cell, he spoke with other prisoners in English. At one point, the defendant asked Officer Cintron in English if he could go to the bathroom and, while the defendant was in his cell, Officer Cintron spoke to the defendant in English and the defendant responded to him in English. Second and most important, the Court saw for itself the IDTU video, People's Exhibit 3 in evidence. On that video, the defendant was offered a chemical test analysis of his breath, several times and each time, he said “yes,” and then was able to completely follow the instructions given to him by the IDTU officer by blowing uninterruptedly into the machine. Although, the defendant moved his arms at first when the officer told him not to, this Court concludes that the defendant's movement is easily explained by the fact that when someone leans forward from the waist as the defendant had to do to blow into the machine, it is a natural inclination to reach out, but in this Court's view it does not evince a lack of understanding.8 Moreover, on the video, the defendant states his name, gives his address in English and acknowledges his date of birth all of which shows he understands questions asked in English and can speak English. In addition, although some of the defendant's answers on the video are inaudible, he was able to answer a lengthy series of questions all of which were asked in English. Most notably, the defendant repeatedly denied his guilt to the officer who was questioning him, which in this Court's view, is the most compelling evidence that he understood what he was being asked. He repeatedly told the officer that he had nothing to drink and that he was sober. Even when he was asked a rather complicated question, “On a scale of zero to ten with zero is totally sober and ten being falling down drunk or too impaired to function at all, how would you rate yourself?,” the defendant replied, “Zero.” This reply, which is exculpatory, is not the reply of someone who has no command of the English language. This Court concludes that the defendant understood what was asked of him and voluntarily consented to the breathalyzer test for the same reason, he answered the questions asked of him; he wanted to convince the officers that he was not intoxicated.
Further, the defendant never indicated that he did not understand the officers' questions nor did he ask for an interpreter. Undoubtedly, he was aware that there were officers who could interpret for him as he had spoken with Officer Montanez at the scene in Spanish, yet he did not make a request that someone translate any of the questions for him. And, as noted, he conversed in English with both Officer Cintron and other prisoners at the precinct, all of which indicate he understood English sufficiently to consent to the breathalyzer test. See People v. Mena, 161 AD3d 542 (1st Dept. 2018) (defendant's confession was voluntary where, although defendant's first language was Spanish, defendant gave no indication he did not understand questions or that he needed assistance); People v. Tineo, 144 AD2d 507 (2d Dept. 1988) (Court rejected defendant's argument his Miranda waiver was not valid, because he did not understand English, where the detective conversed with the defendant in English first and the defendant indicated he understood his rights).
With regard to the defendant's argument that the defendant felt coerced to take the test, because he was not experienced with the criminal justice system and there were officers present, this Court concludes that there was nothing coercive about the situation. As shown by Officer Cintron's credible testimony and on the video recording, the officers were patient, took the time to explain things and did nothing to pressure the defendant. In fact, when he stumbled at the beginning of the physical coordination test, the officer gave him the opportunity to explain what was wrong and made no request for the defendant to continue. Thus, the argument that the defendant's consent to take the test was coerced lacks merit.
Finally, the defendant argues that the People have not met their burden of establishing consent, because they did not have the arresting officer testify to the contents of every conversation that his partner had with the defendant in Spanish and because the arresting officer did not possess the requisite ability to understand the conversations his partner had with the defendant in Spanish. These arguments lack merit. Officer Cintron, the arresting officer testified that he was fairly proficient in understanding Spanish. The Court credits his testimony that he understood the conversations his partner had with the defendant; in addition, his partner translated the conversations to him. The People further established through Officer Cintron's testimony that there was nothing coercive about the officers' conduct or questions at the scene or at the precinct and Officer Cintron stated there were no promises made to the defendant in exchange for his statements, that he was not threatened by anyone, and that the officers had not drawn their weapons. Further as noted, once the People have met their burden of establishing consent, which this Court concludes they have, the defendant bears the burden of negating consent. The defendant did not meet their burden as they did not try to establish the details of any conversation, they claim may have been coercive on cross examination or by other means. As noted, the record fails to support any claim of coercion. Accordingly, the defendant's motion to suppress the results of the breathalyzer test is denied.
The Defendant's Statements at the Precinct
At a Huntley hearing, the burden of proof is on the People to prove that a statement is voluntary beyond a reasonable doubt. People v. Huntley, 15 NY2d 72, 78 (1964). The People have met their burden. At the outset, there was nothing coercive about the defendant's interactions with the police officers in the instant case. The defendant was brought to the precinct and was treated with courtesy. He was allowed to use the bathroom when he made a request to do so. Before he was questioned, he was read his Miranda warnings in the IDTU video, affirmed that he understood them and agreed to answer questions. The officers took their time with the defendant and patiently explained procedures to him. When the defendant was questioned, he was not handcuffed, no weapons were displayed and nothing was promised to him in return for his statements. As noted above, this Court concludes that the defendant understood English well enough to understand the Miranda warnings and the questions that were asked of him and this Court concludes that he freely and voluntarily waived his Miranda rights. Thus, the defendant's motion to suppress his statements at the precinct is denied.
1. The defendant did not call any witnesses.
2. Officer Cintron filled out an accident report at the scene. Under the description of the accident, the driver of the SUV reported that he was stopped at a red light when the defendant's vehicle came into his lane and caused a collision. The defendant stated that he was driving straight when the other vehicle came into his lane causing a collision. Officer Cintron noted that the defendant was arrested for DWI and a PBT administered on scene gave a blood alcohol content of .232. (People's Exh. 4 in evidence [accident report] ).
3. At some point, Officer Cintron learned that the defendant was 80 years old.
4. Officer Cintron was fairly proficient in understanding Spanish, because his father spoke Spanish and he took Spanish in high school. He testified that his ability to speak Spanish was “fair,” but he understood Spanish better than he spoke it. According to Officer Cintron, his partner was “very proficient” in Spanish as he had spoken Spanish for most of his life.
5. At some point, the defendant, speaking in Spanish, had told Officer Montanez without any questioning by the officers that Officer Montanez or the other driver had taken the keys from him. Officer Cintron asked the other driver if he had the keys and he replied, “No”; as noted, the keys were found in the defendant's pocket.
6. The defendant was asked whether he would take the breathalyzer test a total of 3 times; each time, the defendant responded affirmatively.
7. The Miranda warnings that Officer Cintron read to the defendant were as follows: “You have the right to remain silent and refuse to answer questions, do you understand?; Anything you do say may be used against you in a court of law, do you understand?; You have the right to consult an attorney before speaking to the police and to have an attorney present during any questioning now or in the future, do you understand?; If you cannot afford an attorney, one will be provided for you without cost, do you understand?; If you do not have an attorney available, you have the right to remain silent, until you have had an opportunity to consult with one, do you understand?; Now that I have advised you of your rights, are you willing to answer questions?” (People's Exhibit 2 in evidence).
8. The same holds true for the physical coordination test. Although the defendant initially said he did not have an injury, but complained when he began the test of knee pain, he may not have felt any pain until he began the test; that does not, however, show the defendant did not understand English.
Beth Beller, J.
Response sent, thank you
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Docket No: 2018BX037112
Decided: August 08, 2019
Court: Criminal Court, City of New York.
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