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The PEOPLE of the State of New York, Plaintiff, v. John SOLIVAN, Defendant.
The moving and opposition papers were read on this motion to reargue.
Motion by the prosecution for leave to reargue is denied to the extent that leave to reargue is denied.
In an order dated July 7, 2022, this court granted defendant's motion to suppress to the extent that the court ordered a Franks/Alfinito hearing. The court scheduled the hearing for August 4, and on July 27, the prosecution filed this motion for leave to reargue.
The motion is denied, as this court did not misapprehend any fact or law in rendering its July 7, 2022 decision and order. In his January 20, 2022 affidavit in support of the prosecution's warrant application for defendant's blood, the affiant officer, allegedly a member of the Port Authority Police Department of New York & New Jersey (hereinafter PAPD) for two years, and then of Lincoln Tunnel Command, avers, as to probable cause in the subject motor vehicle collision incident, that defendant “had watery eyes, incoherent speech, and a pale face” (defendant's underlying affirmation in support, exhibit 2 ¶ 4[b]). The affiant states that he arrived after the vehicle was “stopped” and observed these characteristics after defendant's alleged rear-end collision with a bus near Lincoln Tunnel, with defendant in the driver seat (id. at ¶ 4[a]). The affiant further states that he observed damage to the front of the subject vehicle upon arrival and later viewed surveillance footage appearing to show defendant's vehicle colliding with the bus.
The affiant offers no other personal knowledge as to defendant's level of intoxication in the affidavit, relying instead upon the double hearsay of an EMT, of unstated affiliation, and about whom only a name and shield number are provided, as told to the affiant by an assisting PAPD officer, also of Lincoln Tunnel Command, about whom only a name and shield number are given. The affiant alleges that the EMT told the assisting officer “that he observed that [defendant] had an odor of an alcoholic beverage on his breath” (id. at ¶ 4[b]). Defendant did not explicitly consent to a blood test (id. at 4[d]).
Preliminarily, the prosecution has satisfied its Aguilar-Spinelli burden as to the assisting officer and the EMT. As the Court of Appeals has stated:
“Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest. Information received from another police officer is presumptively reliable. Where, however, an arrest is challenged by a motion to suppress, the prosecution bears the burden of establishing that the officer imparting the information had probable cause to act.
“The People may, of course, establish probable cause for a warrantless arrest with hearsay information that satisfies Aguilar—Spinelli. To meet that two-part test, the prosecution must demonstrate the reliability of the hearsay informant and the basis of the informant's knowledge. In other words, there must be evidence that the informant is generally trustworthy and that the information imparted was obtained in a reliable way—that it constitutes more than unsubstantiated rumor, unfounded accusation or conclusory characterization. An unsubstantiated hearsay communication—even when transmitted by a fellow officer—will not satisfy the People's burden.
“Where, however, the People demonstrate—through direct or circumstantial evidence—how a reliable hearsay informant acquired the information, both prongs of Aguilar—Spinelli may be satisfied. When, for example, the hearsay informant is a police officer who imparts to fellow officers information gathered while personally participating in or observing an undercover drug transaction, there is little doubt as to the reliability of the informant or the basis of knowledge.
“The prosecution may satisfy its burden even with ‘double hearsay,’ or ‘hearsay-upon-hearsay,’ so long as both prongs of Aguilar—Spinelli are met at every link in the hearsay chain. As such, police officers may rely on hearsay information derived from a trustworthy informant who did not personally observe a defendant's criminal activity, but came by that information in a reliable, albeit indirect, way. Where, however, there is no evidence indicating how the informant obtained the information passed from one officer to another, there is nothing by which to measure the trustworthiness of that information.”
(People v Ketcham, 93 NY2d 416, 419-421  [internal quotation marks and citations omitted]; see also People v Gerard, 197 AD3d 1045, 1046 [1st Dept 2021]). The fellow officer rule “is based on both the presumption of veracity and accuracy afforded a communication from one police officer to another and the recognition that modern law enforcement often involves the work of a variety of officers” (People v Mortel, 197 AD3d 196, 204 [2d Dept 2021] [internal quotations marks omitted]).
While the first prong of Aguilar-Spinelli is therefore deemed entirely satisfied as a matter of law when fellow officers are involved at every link in the hearsay chain, the prosecution must still satisfy the second prong, which requires that the prosecution establish “that the imparting officer had an adequate basis of knowledge for the information transmitted, either from direct participation in the transaction or observation of it” (id. at 205 [internal quotation marks omitted]).
“Evaluation of whether probable cause exists in a warrant affidavit should be based on all the facts and circumstances viewed together, and the affidavit should not be read in a hypertechnical manner, but considered in the light of everyday experiences” (People v Gramson, 50 AD3d 294, 294-295 [1st Dept 2008] [internal citation omitted]). Here, the hearsay chain involves fellow officers, and it is to be expected that an EMT would observe whether there was alcohol on the breath of a person involved in a motor vehicle collision. The court finds that it is enough for the affidavit to state that an EMT made the observation, then told another officer, who then told another officer, all of whom were responding to the scene of a motor vehicle collision at the location to which the affiant and assisting officer are ordinarily assigned, the Lincoln Tunnel. As such, the court finds based on the affidavit submitted that the prosecution has met its Aguilar-Spinelli burden as to the double hearsay.
As to the affiant's personal knowledge, as is relevant here, it is undisputed that the affiant's report, submitted in the underlying motion but not provided to the court with the warrant application, is inconsistent with the affiant's testimony in the subject affidavit. In the report, the affiant marked the box “None” with an “X” in the section titled “Arresting Officer's Observations at the Time of Arrest,” in the row titled “Breath.” The affiant left the boxes for “Faint,” “Moderate,” “Strong,” and “Other” unmarked. In the same section, the affiant also marked the box “Apparently Normal” with an “X” in the row titled “Eyes,” leaving boxes for “Watery” and “Bloodshot” unmarked. Notably, not every row has an observation indicated. Specifically, in the row titled “Balance,” none of the four available options is marked.
In opposition on the underlying motion, and again in the instant motion, the prosecution argues in its affirmation that the breath and eyes markings were clerical errors, and that the truth is what was in the affidavit and in the affiant's other written records of the incident, annexed to the underlying motion opposition, which describe defendant's eyes as watery. As to the prosecution's affirmations, they are not based on personal knowledge and are therefore without evidentiary value and unavailing (see Zuckerman v City of NY, 49 NY2d 557, 563 ). Similarly unavailing is the prosecution's affirmation in the underlying motion that the report “is based on [affiant's] observations alone, and [he] did not get close enough to the defendant at the time of the arrest to smell his breath and detect any odor” but the EMT “was inside of an ambulance with the defendant, performing a medical evaluation on the defendant, and was in a much better position to detect an odor of alcohol on the defendant's breath” (the prosecution's underlying affirmation in opposition at 5). Further, the prosecution's assertion that the affiant marked “None” for breath because he himself did not observe anything is belied by that the affiant left no mark in the “Balance” row. “None” for breath is, in a fair reading, an observation of absence, not, as with the “Balance” category for this seated defendant, the absence of observation. The affiant's other observations, of pale skin and incoherent speech, are consistent with a person just involved in a severe collision requiring, as here, hospitalization, and do not establish probable cause on their own.
In light of the foregoing, the ordered Franks/Alfinito hearing remains appropriate. The hearing should focus on the issues of fact regarding defendant's eyes and breath. Defendant has made a substantial preliminary showing that a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included in the search warrant affidavit by means of the report submitted. The affiant's markings on his report indicate that he observed that defendant did not have alcohol on his breath, yet the affiant did not disclose or explain this in his affidavit, and that the affiant's eyes were apparently normal, whereas the affidavit described them as watery. Such averments were necessary to the finding of probable cause, as they implicate the strongest indicia of intoxication presented in the application, and as explained supra, the remaining indicia, standing alone, do not establish probable cause under the circumstances.
Accordingly, it is
ORDERED that the motion by the prosecution for leave to reargue is denied to the extent that it is
ORDERED that leave to reargue is denied.
The foregoing constitutes the decision and order of the court.
Eric Schumacher, J.
Response sent, thank you
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Docket No: Docket No. CR-001525-22NY
Decided: August 15, 2022
Court: Criminal Court, City of New York,
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