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The PEOPLE of the State of New York, Plaintiff, v. Shreeganes MEADE, Defendant.
The defendant, Shreeganes Meade, is charged in a misdemeanor information with two counts of Operating a Motor Vehicle While Intoxicated and one count of Operating a Motor Vehicle while Impaired by Alcohol, in violation of New York Vehicle & Traffic Law (“V.T.L.”) §§ 1192(2), 1192(3) and 1192(1).
On November 10, 2017, at about 4:05 a.m., it is alleged that the defendant, while driving his vehicle on the West Side Highway near 48th Street, crashed into the median multiple times. The police received a 911 call from a Con Edison worker regarding the accident and the caller observed a man walking away from the scene of the crash. The man was bleeding from his face and was carrying what appeared to be two bottles of a clear liquid. The caller stated that the man appeared to be intoxicated and that he was walking south toward the Intrepid. Based on police stickers he saw on the window of the vehicle, the caller believed the man was a police officer. He also observed two dogs run out of the car northbound on 12th Avenue. After the 911 call, the Con Edison worker flagged down a police car and pointed them in the direction the man was headed.
Shortly after the accident, Michael Pacheco received a phone call from the defendant. The defendant stated that he had been in a car accident and asked Mr. Pacheco to pick him up. When Mr. Pacheco arrived, he observed the defendant slurring his words and he smelled the odor of alcohol coming from the defendant. As they drove northbound, they passed the defendant's vehicle at the scene of the accident, to which police had responded. Mr. Pacheco states that he took the defendant to the defendant's home to change clothes and then drove him to St. Joseph's Hospital in Yonkers, New York. When NYPD officers learned that the defendant was hospitalized in Yonkers, they appeared at St. Joseph's Hospital and observed the defendant to have bloodshot eyes and slurred speech, but they did not observe any odor of alcohol coming from the defendant and the defendant was cooperative.
At St. Joseph's Hospital, the defendant was treated for head trauma and related injuries. Hospital personnel drew blood from the defendant within about 40 minutes of when he arrived at the emergency room at 7:04 a.m. This blood draw occurred before NYPD officers arrived. That same morning, the District Attorney's office sent a letter to the hospital requesting that any blood samples drawn from the defendant be preserved. The police then obtained a search warrant for the NYPD to obtain the blood samples drawn from the defendant at the hospital. On November 27, 2017, and again on March 5, 2019, the defendant's blood was tested by the Office of Chief Medical Examiner (“OCME”), which determined that defendant's blood alcohol concentration (“BAC”) was 0.13%.
The defendant was arraigned on the instant charges on February 11, 2019. On April 26, 2019, defense counsel served and filed a motion (a) to dismiss the accusatory instrument in the interest of justice and (b) to controvert the search warrant on the grounds that the warrant violated the physician-patient privilege and/or violated the defendant's federal and state constitutional rights. On May 13, 2019, the People opposed the defendant's motions. The defendant requested and was given time to reply and to make additional motions, which he did on June 25, 2019. In that submission, the defendant raised an alternative motion for a Franks/Alfinito hearing, asserting that law enforcement personnel knowingly or recklessly omitted pertinent information from the search warrant application. The People filed a response on July 17, 2019 and the defendant filed reply papers on August 2, 2019.
For the reasons set forth below, defendant's motions are denied.
Motion to Dismiss in the Interest of Justice
A court may dismiss an information in furtherance of justice where there is a compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in an injustice. Criminal Procedure Law (“C.P.L.”) § 170.40. The statute sets forth ten factors to be considered, individually and collectively, and requires the court to strike a balance between the individual and the state in consideration of those factors. People v. Clayton, 41 AD2d 204, 208 (2d Dept. 1973).
The court has examined and considered, individually and collectively, all of the criteria enumerated in C.P.L. § 170.40 and denies the defendant's motion to dismiss in furtherance of justice for the following reasons.
I. Seriousness and Circumstances of the Offense and the Extent of Harm caused by theOffense
As detailed above, the defendant is charged with Operating a Motor Vehicle while Intoxicated and/or Impaired by Alcohol. The defendant is alleged to have crashed his truck into a median on the West Side Highway multiple times before the vehicle came to a stop. The defendant left the scene holding what was initially reported to be two bottles of alcohol 1 and several witnesses described the defendant as exhibiting signs of alcohol consumption and/or intoxication. After returning home briefly, the defendant sought medical treatment for head trauma and related injuries. A blood sample taken by the hospital and later tested by OCME indicated that the defendant's BAC was 0.13%, well over the legal limit.
Fortunately, no other vehicles or individuals were involved in the accident, but the defendant himself was injured and his vehicle was damaged. In addition, the defendant's two dogs were in his vehicle at the time of the accident. The dogs ran from the defendant's vehicle and one of the dogs was later struck and killed by another vehicle. While the defendant left the scene of the accident, the Con Edison worker (and 911 caller) parked his vehicle in front of the defendant's vehicle in order to alert oncoming traffic. Police officers also responded to the scene. All of those individuals were placed in harm's way as a result of defendant's alleged actions.
Put simply, the potential for grave harm to motorists, pedestrians and property when a driver chooses to operate a motor vehicle after having consumed alcohol beyond the legal limit is well known and it is generally accepted that this category of offenses should be taken seriously. The particular facts of this case only highlight the serious nature of these charges.
II. Evidence of Guilt
The evidence against the defendant is strong. There is video surveillance depicting the accident, as well as an independent eyewitness to the defendant leaving the scene. That witness observed the defendant carrying what he initially believed to be two bottles of alcohol. Both the eyewitness and Mr. Pacheco observed the defendant exhibiting signs of intoxication and/or impairment. Very shortly after the accident, Mr. Pacheco observed the odor of alcohol coming from the defendant and heard the defendant slurring his speech. When NYPD officers met with the defendant at the hospital they did not observe any odor of alcohol and found the defendant to be cooperative, but they did note that he had bloodshot eyes and slurred speech. Blood samples taken by the hospital approximately three hours after the accident, and subsequently tested by OCME, indicated that defendant's BAC was .13%.
In addition, there is evidence that can be construed as showing the defendant's consciousness of guilt. Following the accident, the defendant grabbed two bottles of liquid and left the scene. He left behind his two dogs, who ran northbound on 12th Avenue, while he headed south toward the Intrepid. The defendant called Mr. Pacheco and asked him to pick him up. Mr. Pacheco drove the defendant northbound past the scene of the accident, to which police had then responded. The defendant did not at that point stop at the scene. Rather, he returned home to change clothes and then he proceeded to the hospital. It is also alleged that during the car ride, the defendant said to Mr. Pacheco: “I'm fucked.”
Taken together, the circumstances of the accident, the observations of witnesses, the defendant's actions, and the blood test results amount to significant evidence of defendant's guilt.
III. Evidence of Misconduct of Law Enforcement
The defendant asserts that law enforcement has engaged in misconduct by seizing the defendant's blood sample in violation of his physician-patient privilege and in violation of his constitutional rights. However, as discussed below, the police obtained the defendant's blood from the hospital pursuant to a valid search warrant. The court does not construe these actions as misconduct; rather, law enforcement followed permissible procedures to obtain evidence. The fact that the evidence is now the subject of a suppression motion and a motion to controvert the search warrant does not indicate that the police engaged in misconduct.
The defendant also emphasizes the long delay between the time of the accident, investigation and blood test (November 10-27, 2017) and the time of defendant's arrest and arraignment (February 11, 2019). While this delay is indeed unusual, it is not evidence of misconduct.
IV. History, Character and Condition of the Defendant
The defendant, now 31 years of age, has been a member of the NYPD since 2010 as well as a member of the New York State Guard since 2018. Prior to joining the police department, the defendant volunteered for the Transit Auxiliary Police Unit, eventually receiving the designation of Auxiliary Police Commanding Officer Sergeant. He has submitted a number of letters from colleagues, supervisors and constituents detailing his service to the community in his various roles. See Defendant's Attorney Affirmation, dated April 25, 2019, Exhibit A. The court commends the defendant's dedication to public service and recognizes the significant positive impact he has had on his fellow officers and in the community at large.
The defendant has also faced significant tragedy in his personal life. This personal difficulty has only solidified the defendant's commitment to public service and he is devoted to helping his family care for his elderly, ill grandmother. In sum, this is the defendant's first arrest and he has led an exemplary life prior to this incident.
V. Purpose and Effect of Imposing the Authorized Sentence
The purpose and effect of imposing an authorized sentence in this case would be to ensure that supervision is in place in order to monitor the defendant's participation in any mandated programs to address the underlying issues described in the defendant's affidavit that may have contributed to the acts underlying his arrest. There is also another purpose of imposing an authorized sentence, which is to deter this type of behavior -- not just for this defendant but for other members of the community.
The defendant asserts that he will face discipline, including possible termination from the NYPD, if he is convicted of a misdemeanor DWI offense. He also states that he will face removal from the New York State Guard and could lose his license to work as an Emergency Medical Technician. Defense counsel asserts that these consequences would not only impact the defendant personally, but would deprive the community of the defendant's service in those roles. The court is mindful of these potential collateral consequences, but finds that they do not mandate dismissal in this case.
VI. Impact of Dismissal
The impact of a dismissal in this case on not only the safety and welfare of the community but also the public confidence in the criminal justice system militates against the grant of the defendant's motion. Given the particular facts and circumstances in this case and the seriousness of the offenses charged, dismissal of the charges would negatively affect the safety and welfare of the community. It is well-accepted that driving with a BAC level almost 1.5 times the legal limit poses an extreme danger to the safety and welfare of the community. The facts in this case highlight the very dangers that driving while intoxicated poses to the community at large.
In addition, the defendant has been a member of the New York City Police Department for the past nine years and is tasked with upholding the laws of this City and State. In his motion, the defendant questions whether the charges in this case, admittedly brought fifteen months after the incident, would have been brought against a civilian. See Defendant's Memorandum of Law, dated April 25, 2019, at p. 11. The suggestion is that the defendant, a police officer, is being treated more harshly than a civilian in a similar position. However, just as the defendant should not be, and is not being, targeted for prosecution because he is a police officer, his status as a police officer alone does not entitle him to the extraordinary remedy of dismissal. Given the defendant's actions both before and after the accident in this case, a dismissal would certainly undermine the public's confidence in the criminal justice system.
Therefore, viewing all of the statutory factors, individually and collectively, in order to balance the defendant's interests and those of the public, the court finds that a dismissal in the interest of justice is unwarranted in this case and the defendant's motion is denied. Despite the defendant's exemplary employment history with the New York City Police Department and his lack of a criminal history, dismissal is not warranted given the serious nature and circumstances of the allegations and the lack of any compelling factors in the defendant's favor.
Motion to Suppress
The defendant moves to suppress, on several grounds, all blood samples drawn from the defendant at St. Joseph's Hospital on November 10, 2017, as well as the results of all tests of those blood samples conducted by the OCME.
I. Physician-Patient Privilege
The defendant states that his blood was drawn by hospital personnel at St. Joseph's Hospital when he sought treatment for a head injury following the automobile crash on the morning of November 10, 2017. The police then obtained the defendant's blood samples pursuant to a search warrant and the samples were tested by the OCME. The defendant argues that all evidence of the blood samples and the BAC test results must be suppressed based on a violation of the defendant's physician-patient privilege, which he did not waive.
C.P.L.R. § 4504 codifies the physician-patient privilege and it is made applicable to criminal proceedings by C.P.L. § 60.10. C.P.L.R. § 4504(a) states, in part:
Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing ․ shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity (emphasis added).
The statute prohibits the disclosure of information, which includes communications between the medical professional and the patient, in order to advance the important policy objectives of promoting and encouraging full and frank dialogue for necessary diagnosis and treatment.
Citing to People v. Petro, 122 AD2d 309 (3rd Dept. 1986), the defendant posits that the blood samples taken from him at the hospital, and the subsequent testing of that blood, should be considered “information” within the ambit of C.P.L.R. § 4504's prohibition.2
The People counter that a blood specimen is not considered “information” covered by the privilege, citing two Appellate Division cases: People v. Elysee and People v. Drayton. 49 AD3d 33 (2nd Dept. 2007), aff'd on other grounds, 12 NY3d 100 (2009), and 55 AD3d 1278 (4th Dept. 2008). The Appellate Division has specifically held that a physical blood specimen taken from a patient by a medical professional is not considered “information” as that term is used in C.P.L.R. § 4504(a). Elysee, 49 AD3d at 42-43 (unlike communications from patient to medical professional and unlike test results, a blood sample itself is not privileged information); Drayton, 56 AD3d at 1278 (unlike hospital records and test results, a blood sample is not privileged information).3 The court in Elysee explained that to construe the term “information” to include a physical blood specimen would expand the definition beyond the intent and purpose of the legislation. Id. at 37. “Information” has traditionally been construed to mean facts and conclusions gleaned from observations of the patient or from communications with the patient or others during the course of treatment. Id. at 38. For instance, a patient's symptoms, a diagnosis, the nature of treatment, the results of any tests conducted, or the medical professional's interpretation of test results, would all be considered information. On the other hand, incidental facts attendant to the patient's treatment or medical history — such as the fact that the patient received treatment — are not information subject to physician-patient privilege. Id. at 38-39. After reviewing what is and is not considered to be “information” within the scope of C.P.L.R. § 4504, the courts in Elysee and Drayton concluded that a physical blood sample, prior to testing, is not considered “information,” as it does not communicate any information about the patient's diagnosis or treatment by the medical professional. Elysee, 49 AD3d at 39; Drayton, 56 AD3d at 1278.
Further, the court in Elysee made a distinction between a blood sample itself and hospital records containing the results of tests conducted by hospital personnel on a patient's blood sample. Id. at 39-40, 42-43. Only the latter is considered “information” within the ambit of C.P.L.R. § 4504(a). See id. at 39 (“a physical blood sample standing alone, prior to being tested by the treating physician or other medical professional, is not [ ] protected since it neither communicates nor renders observable any information about a patient upon which treatment can be based or a diagnosis made”). As such, the defendant's reliance on People v. Petro is misplaced. That case involved a defendant who was charged with vehicular manslaughter and other charges related to driving while under the influence of alcohol. Medical professionals drew blood and performed a blood test which revealed a BAC of 0.15%. The court affirmed the trial court's suppression of the blood test results, concluding that the test results were information covered by the physician-patient privilege. See Petro, 122 AD2d at 310.
In this case, no blood test result was obtained from the hospital; the only item seized was the physical blood sample, which is not considered a communication or “information” and therefore is not privileged within the meaning of the statute.
Therefore, the defendant's motion to suppress the blood sample, as well as the subsequent test results from the OCME, as information covered by the physician-patient privilege is denied.
II. Statutory and Fourth Amendment Considerations
The defendant next argues that the blood sample acquired from the hospital by search warrant should be suppressed for two reasons: (1) if the sample was obtained at the direction of law enforcement prior to the issuance of a search warrant, it was an unconstitutional warrantless search; and (2) the search warrant was the wrong mechanism for obtaining the blood sample, since V.T.L. § 1194(3) is the exclusive means by which the People may obtain a blood sample in cases charging V.T.L. offenses. In the alternative, the defendant moves for a Franks/Alfinito hearing, asserting that law enforcement officials knowingly or recklessly withheld material facts from the search warrant application that was presented to the court before the search warrant was issued.
A. Warrantless search without exigency
The defendant's initial motion, in April 2019, included an argument that if hospital personnel was ordered by NYPD or the district attorney to draw defendant's blood, in the absence of exigent circumstances and without a warrant, the blood, along with the evidence of defendant's BAC, must be suppressed as fruit of an unconstitutional search and/or seizure.
Now that the parties have engaged in preliminary discovery and the course of events has been clarified, this argument is not borne out by the facts. The blood draw was not ordered by NYPD or the district attorney. Law enforcement officials sought and obtained a search warrant and then procured the samples from the hospital, where they had already been taken in connection with the defendant's medical treatment. This did not amount to a warrantless search.
B. Vehicle and Traffic Law § 1194
Next, the defendant argues that the blood samples themselves and the evidence of defendant's BAC should be suppressed because the police and the district attorney failed to utilize the procedures outlined in V.T.L. § 1194 regarding chemical tests for motorists suspected of driving under the influence of alcohol or drugs. The defendant submits that because this case involves only V.T.L. offenses, law enforcement officers are limited to the provisions of V.T.L. § 1194 regarding compulsory chemical tests and they cannot, as they did here, resort to C.P.L. § 690.10 to obtain a search warrant for the defendant's blood. The People respond that V.T.L. § 1194 is not the exclusive means by which the police may obtain a blood sample from a suspect in a V.T.L. case. They submit that when, as here, a hospital has already drawn a defendant's blood for purposes of diagnosis and treatment, it is entirely permissible for police to obtain that blood with a traditional search warrant, regardless of the whether the charges are V.T.L. or Penal Law offenses.
The search warrant statute, C.P.L. § 690.10, provides, in part, that:
Personal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it ․ Constitutes evidence or tends to demonstrate that an offense was committed in this state or another state, or that a particular person participated in the commission of an offense in this state or another state ․
“Offense” is defined in the Penal Law as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality ․” P.L. § 10.00(1). The People point out that this definition of “offense” would include both Penal Law and V.T.L. violations and that, therefore, the search warrant statute applies equally to both categories of cases.
V.T.L. §§ 1194(2) & (3) authorize the administration of chemical tests to motorists. A motorist is deemed to have given consent to a chemical test for breath, blood, urine or saliva to determine the alcohol and/or drug content of his blood when an officer has reasonable cause to believe the motorist was operating a motor vehicle in violation of V.T.L. § 1192 and when the chemical test is administered within two hours of the arrest or stop. V.T.L. § 1194(2). In general, if an individual refuses to submit to a chemical test, the test must not be given and evidence of the individual's refusal to take the test can be admitted into evidence at trial on the V.T.L. § 1192 charges. See V.T.L. §§ 1194(2)(b)(1) & 1194(2)(f). Chemical tests may be compelled in certain circumstances, though. See V.T.L. § 1194(3). A police officer or district attorney can seek a court order to compel submission to a chemical test under the conditions and through the procedures described in V.T.L. § 1194(3). In short, a motorist can be compelled to submit to testing of breath, blood, urine or saliva to determine the alcoholic and/or drug content of that biological sample when (1) there is reasonable cause to believe the motorist violated V.T.L. § 1192, (2) the motorist operated a motor vehicle in a way that resulted in the death or serious physical injury of another individual, (3) the motorist is under arrest, and (4) the motorist has refused or was unable to consent to a chemical test. V.T.L. § 1194(3)(b). Evidence of the amount of alcohol or drugs in the motorist's blood, as shown by a chemical test administered pursuant to V.T.L. § 1194, is admissible at trial for a violation of V.T.L. § 1192. See V.T.L. § 1195(1).
The defendant asserts that a line of cases beginning with People v. Moselle, 57 NY2d 97 (1982),4 holds that V.T.L. § 1194 is the exclusive means of obtaining a blood sample in cases charging V.T.L. offenses only. The Court in Moselle reviewed three cases in which police directed hospital staff to draw blood from a defendant without the defendant's consent and without a court order. In each instance, the Court upheld suppression of the BAC test results, holding that “blood samples taken without a court order other than in conformity with the provisions of ․ section 1194 of the Vehicle and Traffic Law are inadmissible in prosecutions for operating a motor vehicle while under the influence of alcohol under section 1192 of that law.” 57 NY2d at 101. In reaching that result, the Court recognized that V.T.L. § 1194 has pre-empted the field of administration of chemical tests in V.T.L. § 1192 cases. See id. at 109 (“[i]t is not seriously challenged that section 1194 has pre-empted the administration of chemical tests for determining alcoholic blood content with respect to violations under section 1192 of the Vehicle and Traffic Law.”).
When a case charges both Penal Law and V.T.L. offenses, though, the People need not separately resort to V.T.L. § 1194 to obtain blood samples — rather, a validly issued search warrant is sufficient. See People v. Casadei, 66 NY2d 846 (1985); see also Elysee, 49 AD3d at 40-41 (law enforcement obtained a VTL 1194(3) order to compel defendant to give a blood sample and also obtained a search warrant for blood vials taken from the defendant by medical staff during diagnosis and treatment shortly after an accident for which the defendant was charged with both V.T.L. and P.L. offenses). The defendant takes this to mean that (1) V.T.L. § 1194 has pre-empted the field with respect to V.T.L. charges and (2) the search warrant statute, C.P.L. § 690.10, applies only when the case involves at least some violation of the Penal Law. Because he is charged with V.T.L. offenses only, the defendant posits that his case falls within the scope of Moselle, Casadei and Elysee in that law enforcement could only compel a blood sample via the procedures set forth in V.T.L. § 1194. Absent any alleged violation of the Penal Law, a search warrant is an improper mechanism to compel a blood sample from this defendant.
That proposition is likely correct, but it does not apply on the facts of this case. The cases cited by the defendant involve situations where law enforcement officers sought to compel the defendant to provide a blood sample. The current case, though, involves a sample that was already taken by hospital personnel. V.T.L. § 1194 does not prohibit or otherwise regulate the acquisition of a blood sample that was originally obtained by medical personnel and not at the direction of law enforcement. See People v. Ameigh, 95 AD2d 367 (3d Dept. 1983) (holding that V.T.L. § 1194 does not prohibit admission of medical records including BAC test results when defense counsel voluntarily disclosed the records during pre-trial discovery and law enforcement was not involved in the procurement of the blood or its later testing). In this situation, the lawfully obtained blood sample is not unlike other tangible property subject to seizure by a search warrant. See Elysee, 49 AD3d at 41; accord People v. Sanchez, 51 Misc 3d 1218(A)(Crim. Ct. Bronx Cty. 2016)(“the procedures established [under VTL § 1194 are] intended solely to govern chemical blood-alcohol tests requested or procured by an arresting police officer, and not to bar admissibility of the result of a test performed without police involvement and for purposes unrelated to section 1192 prosecutions. If a sample of a defendant's blood was drawn by hospital personnel for purposes of medical treatment and thereafter obtained by the police pursuant to a search warrant, such evidence can be used in a prosecution”)(citations omitted); People v. Godulis, 36 Misc 3d 1230(A)(Dist. Ct. Nassau Cty. 2012)(“[t]he point that the court in Casadei recognized a distinction between a Penal Law violation and a VTL violation is of no legal significance as it relates to a blood sample drawn for medical purposes and seized through a subpoena”).
The defendant in this case was not compelled by law enforcement officials to submit to a procedure to draw a blood sample. The defendant went to the hospital, shortly after the accident, in order to receive treatment for his injuries. In the course of that visit, hospital staff drew several vials of blood for diagnostic and treatment purposes. Law enforcement personnel had no role in directing that blood draw; in fact, they were unaware of the defendant's presence at the hospital until later that morning -- after the blood was drawn. Officers subsequently contacted the District Attorney's Office and requested a preservation letter and a search warrant to obtain the remaining vials of blood in order to test the defendant's BAC level.
As such, this case falls outside of the ambit of VTL 1194(3) and Moselle/Casadei/Elysee because there was never a request for a court order or warrant to compel a blood draw from the defendant. The search warrant only allowed the search and seizure of blood samples lawfully obtained by the hospital for purposes of treatment and diagnosis. For that reason as well, the defendant's motion to suppress is denied.
Lastly, in the alternative to the above motion to suppress, the defendant argues for a Franks/Alfinito hearing. He asserts that the police either knowingly or recklessly omitted material information from the search warrant application presented to the court. Specifically, the defendant takes issue with the assertion in the search warrant affidavit that the eyewitness observed a male the driver “carrying two bottles of what appeared to be alcohol and flee on foot” following the crash. The defendant states that Lieutenant Rainer Kroll, the search warrant affiant, should have made the court aware of the witness's subsequent statements, in which he expresses uncertainty about whether the liquid in the bottles was alcohol or perhaps water. In addition, the defendant argues that the search warrant affidavit should have included the exculpatory fact that when NYPD officers arrived at the hospital on November 10, 2017, they did not observe any odor of alcohol coming from the defendant. The People deny that the police omitted any material facts and state that the defendant has not made a sufficient showing to warrant a Franks/Alfinito hearing.
In order to obtain a Franks/Alfinito hearing, a defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” and that the allegedly false statement was necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); People v. Bellinger, 169 AD3d 553, 554 (1st Dept. 2019). This principle applies equally to material misstatements and material omissions in a search warrant application. See, e.g., U.S. v. Keith, 183 F. Supp.3d 427, 430 (S.D.NY 2016). The defendant in this case asserts that the search warrant application should have included the fact that in subsequent interviews with Officer Edward Zuno and Sergeant Andrew Barton of the Internal Affairs Bureau, the 911 caller expressed uncertainty about whether the liquid in the two bottles carried by the defendant was alcohol or perhaps water. In addition, the defendant says that the warrant court should have been made aware that when Captain Spataro and Lieutenant Klepper appeared at St. Joseph's Hospital on the morning of the accident, they did not smell alcohol on the defendant.
The defendant, however, has made no showing that the search warrant affiant, Lieutenant Kroll, either knowingly or recklessly excluded those facts. The defendant surmises that because the police were working quickly and in a coordinated fashion that Lt. Kroll must have been aware of the activities and findings of his colleagues. But that is pure conjecture. There is no basis to conclude that Lt. Kroll was aware of the facts the defendant says he should have included in the search warrant affidavit and, as such, the defendant has not made a sufficient showing for a Franks/Alfinito hearing. Compare People v. Apelbaum, 33 Misc 3d 4 (App. Term 2nd Dept. 2011)(holding that it is not enough for the defendant to allege a false statement in the affidavit; the defendant must demonstrate that the affiant knew or should have known of the falsity); People v. Moses, 58 Misc 3d 1230(A)(Sup. Ct. Kings Cty. 2018)(denying defendant's request for a Franks/Alfinito hearing because the defendant's conclusory allegations were insufficient to show that the affiant proffered an untrue statement either knowingly or with reckless disregard for the truth); and People v. Seybold, 216 AD2d 935 (4th Dept. 1995)(granting a Franks/Alfinito hearing when information from two eyewitnesses suggested that the affiant knew or should have known that the informant was not present at the location at the time of the alleged controlled buy).
In any event, even if the warrant court was made aware of the information the defendant points to, the court still would have had probable cause to issue the warrant. See People v. Franklin, 137 AD3d 550, 553 (1st Dept. 2016)(“defendant was not entitled to a Franks/Alfinito hearing regardless of whether he met his burden as to [the] statements, since the remaining statements in the affidavit were sufficient to establish probable cause”). The defendant attributes great significance to the fact that two officers observed the defendant to have bloodshot eyes and slurred speech, but did not detect an odor of alcohol coming from the defendant when they saw the defendant in the hospital nearly 5 and a half hours after the car accident. The court does not agree that this fact alters the determination of probable cause. In addition, as discussed above in footnote 1, the eyewitness only became uncertain about the liquid in the bottles when he learned that the defendant was a police officer and stated he didn't want to get him in trouble. As such, the witness's subsequent recantation does not necessarily negate his initial observation. Therefore, even with the inclusion of the information the defendant cites, the warrant still would have been supported by probable cause. For this reason as well, the defendant's request for a Franks/Alfinito hearing is denied. See id. at 553; Moses, 58 Misc 3d at *4.
This opinion shall constitute the decision and order of the Court.
1. The parties engage in much discussion about this initial observation of the bottles by the eyewitness. At first, the witness reported seeing the driver carrying two bottles of vodka. When he was questioned further by police, the witness indicated that he couldn't be sure if the bottles contained alcohol or water and that he doesn't want to get a cop in trouble. Ultimately, a jury will determine what weight to afford the witness's various statements, but the initial statement and the circumstances in which the observations were made do support an inference that the bottles contained alcohol.
2. The defendant also cites two nonbinding opinions: People v. Bashkatov, 13 Misc 3d 1101 (Crim. Ct. Richmond Cty. 2006) and People v. Muscarnera, 16 Misc 3d 622 (Dist. Ct. Nassau Cty. 2007). These cases were decided prior to the Appellate Division's decision in People v. Elysee (discussed below), which explicitly held that a blood sample itself is not “information” under C.P.L.R. § 4504 and effectively overruled the holdings in both Bashkatov and Muscarnera. 49 AD3d 33, 42-43.
3. The People also point to People v. Bueno, 46 Misc 3d 1224(A) (Sup. Ct. Bronx Cty. 2015), which followed the holding in Elysee and concluded that blood samples are not information of the type to fall within the scope of the physician-patient privilege.
4. Superseded by legislation enacting current V.T.L. § 1194(3)(formerly V.T.L. § 1194-a), L. 1983, ch. 481.
Kate Paek, J.
Docket No: 2019NY005703
Decided: August 13, 2019
Court: Criminal Court, City of New York.
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