The People of the State of New York v. Urbina, Defendant. (2023)

On January 11, 2023, the court held a combined Mapp/Huntley/Dunaway hearing in this DWI case. The Huntley motion is granted. The Mapp/Dunaway is denied.

FINDINGS OF FACT

At the hearing, the People called one witness, NYPD Officer Christopher Ponce of the 101st Precinct, shield number 30561. The court finds Officer Ponce's testimony credible. Officer Ponce has worked with the NYPD for five years. Before that, he was trained in the Police Academy for six months.

On March 29, 2022, Officer Ponce was working with his partner, Detective Watson. They were in an unmarked police vehicle and both in uniform. Officer Ponce was equipped with a radio and a body-worn camera. That morning, the two officers were patrolling in their car in Queens. While on patrol, at around 4:20 a.m., they received multiple radio runs. The radio runs reported that a vehicle had hit a pole on a corner, had remained there for hours, and contained a person inside who was slumped over. The officers responded to the location of the vehicle, which was at Beach 27th Street and Cornaga Avenue in Queens.

When the officers arrived, they observed a Toyota SUV up on a curb and crashed against a pole. The vehicle's engine was running. At the time, it was dark, but there was street lighting. No other officers were on the scene. The officers exited their vehicle and approached the Toyota's front, driver-side door. They observed a man in the front driver-side seat, slumped over and apparently sleeping. They also observed that keys were in the Toyota's ignition. The man in the driver's seat was Mr. Urbina. From outside of the car, Detective Watson asked Mr. Urbina to wake up, and he did. The officers then observed that Mr. Urbina's eyes were glossy and bloodshot. At that point, Detective Watson opened the driver's side door and asked Mr. Urbina to step out of the vehicle.

When Mr. Urbina stepped out of the vehicle, the officers smelled alcohol coming off his person. They asked him to walk to the back of the vehicle, and he did. During this time, Mr. Urbina was responsive to the things the officers were saying to him. The officers then asked Mr. Urbina whether he had consumed alcohol recently. Neither Mr. Urbina nor the officers were wearing a mask. Mr. Urbina responded to the officers' questions in English. He told them he was at a party, where he had drunk beer. At this time, the officers believed Mr. Urbina to be detained, but not under arrest. The demeanor of all parties to this questioning was calm. The officers made no threats or promises, and Mr. Urbina was not physically restrained. The officers did not use force, though they directed him to remove his hand out of his pocket at one point. The officers' weapons remained holstered.

The officers then conducted field testing on Mr. Urbina. Officer Ponce asked Mr. Urbina to follow his finger side to side without moving his head and using his eyes, only. Mr. Urbina was not able to do that consistently. During this testing, Officer Ponce observed that Mr. Urbina was not completely fluent in English, so he tried giving some instruction in Spanish, as well.

Officer Ponce then concluded that Mr. Urbina was intoxicated. He based this conclusion upon his interaction with Mr. Urbina, the crashed vehicle, his observations of Mr. Urbina sleeping, his observation of bloodshot eyes and an odor of alcohol, and the attempted field testing. The officers asked a supervisor to come to the scene to authorize an arrest. He did. At 12:20 a.m., the officers then arrested Mr. Urbina and took him to the 102nd Precinct for further testing.

At the 102nd Precinct, Officer Ponce observed the Intoxicated Driving Testing Unit ("IDTU") tests on Mr. Urbina. IDTU tests include a chemical test, where a person blows into a breathalyzer, and physical coordination tests. Mr. Urbina was asked whether he would comply with the testing, and he agreed. (He was asked initially in English, but he indicated he did not understand, so he was asked again in Spanish.) The breathalyzer test resulted in a reading of 0.17 blood alcohol content.

Officer Ponce never read Mr. Urbina any Miranda warnings.

CONCLUSIONS OF LAW

I. Huntley

Criminal Procedure Law § 710.30[1][a] requires the People to provide notice, within 15 days of arraignment, of an accused person's statements to public officers that the People intend to introduce at trial. "[T]he purpose of CPL 710.30 is to inform a defendant that the People intend to offer evidence of a statement to a public officer at trial so that a timely motion to suppress the evidence may be made," (People v. Rodney, 85 NY2d 289, 291-92 [1995]), "to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or an admission," and to "afford[ ] defense counsel an opportunity, prior to trial, to investigate the circumstances of the alleged fact and voluntariness of the purported statements and prepare the defense accordingly," (People v. Briggs, 38 NY2d 319, 322-23 [1975]). "The statutory procedure permits an orderly hearing and determination of the issue of the fact and voluntariness of statements before trial, thereby preventing the interruption of trial to challenge initially the admission into evidence of the statements." (Id.).

A C.P.L. § 710.30[1][a] notice must "specify the evidence intended to be offered." (People v. Lopez, 84 NY2d 425, 428 [1994] [citing C.P.L. § 710.30[1]). Thus, the People are "required to inform defendant of the time and place the oral or written statements were made." (Id.). While full copies of statements need not be supplied, "they must be described sufficiently so that the defendant can intelligently identify them." (Id.).

In this case, the People served a C.P.L. § 710.30[1][a] notice. It stated that the People intend to introduce at trial an alleged statement by Mr. Urbina to "DETECTIVE THEORDORE [sic] WATSON on 03/29/2022, at 0030, at [sic] IN ROUTE TO THE 102 PRECINCT which indicates in sum and substance I DRANK ALCOHOL TONIGHT (ORAL)."

Accordingly, at this Huntley hearing, the People had a burden to establish beyond a reasonable doubt that this statement—made around 12:30 a.m. in route to the 102nd Precinct—was voluntarily made. (See People v. Huntley, 15 NY2d 72 [1965]; C.P.L. § 710.30[1][a]). That is a "heavy burden." (People v. Jin Cheng Lin, 26 NY3d 701, 719 [2016]).

There are two voluntariness doctrines. (See People v. Dale, 207 AD3d 651, 651 [2d Dep't 2022]). The first is a traditional totality-of-the-circumstances analysis, grounded in the constitutional guarantees of due process and the privilege against self-incrimination. (Dickerson v. United States, 530 U.S. 428, 433 [2000]; see also People v. Anderson, 42 NY2d 35, 37-38 [1977]). The roots of that test "developed in the common law, as the courts of England and then the United States recognized that coerced confessions are inherently untrustworthy." (Dickerson, 530 U.S. at 433). "It is basic that ours is an accusatorial and not an inquisitorial system[,] a system in which the State must establish guilt by evidence independently and freely secured and not by coercion to prove its charge against an accused out of his own mouth." (Anderson, 42 NY2d at 37). Accordingly, the People bear the heavy burden of proving voluntariness "beyond a reasonable doubt" before an accused person's alleged statement can be "submitted to the trial jury." (Huntley, 15 NY2d at 78).

The second doctrine of voluntariness concerns the Miranda rule. (Dale, 207 AD3d at 651). That rule is a modern "prophylactic" invented by the U.S. Supreme Court to address "the advent of modern custodial police interrogation[s]." (See generally Dickerson, 530 U.S. at 435-38). Such an interrogation—which was not common before late-twentieth century policing—"exacts a heavy toll on individual liberty," "trades on the weakness of individuals," and "blurs the line between voluntary and involuntary statements." (Id. at 435). These problems "heighten[ ] the risk that an individual will not be accorded his privilege . . . not to be compelled to incriminate himself." (Id. [internal quotation marks omitted]). As a result, though the rule is a prophylactic invented by judges, there, too, the People "have the burden of demonstrating, beyond a reasonable doubt," that the accused "knowingly, intelligently, and voluntarily waived [their] Miranda rights." (Dale, 207 AD3d at 651).

Inexplicably, the People here elicited absolutely no testimony whatsoever about their noticed statement. As a result, the court cannot find the People met their heavy burden under either voluntariness analysis. It cannot "find [traditional] voluntariness beyond a reasonable doubt," (Huntley, 15 NY2d at 78), nor can it find that there was no Miranda violation beyond a reasonable doubt, (Dale, 207 AD3d at 651). (Indeed, the only evidence about Miranda elicited at all was that Officer Ponce never read Mr. Urbina any Miranda warnings.) The noticed statement is, therefore, suppressed.

The People ask to still be able to use the noticed statement for impeachment purposes at trial. They may not. To be sure, a statement that is obtained in violation of Miranda may still be used for impeachment purposes. (Harris v. New York, 401 U.S. 222 [1971]). But a statement that the People have not proven voluntary under a traditional voluntariness analysis is "inadmissible for all purposes." (People v. Hults, 76 NY2d 190, 197 [1990]). Here, because the People totally failed to meet their burden to show that the noticed statement passed even traditional voluntariness, they may not use the statement for impeachment purposes.

One may ask why the People failed so clearly. Strangely, at this hearing, the People elicited testimony about a non-noticed statement made before 12:20 a.m. at the scene of the arrest—a different time and place, and under different circumstances, than the noticed statement. The People's notice did not cover this statement. (See People v. Rhames, 58 Misc 3d 1231[A] [City Ct., Mount Vernon 2018] [holding that notice of statements made "while being transported" to a police station did not cover statements made at the scene of arrest]; People v. Utria, 165 Misc 2d 54 [Crim. Ct., Queens County 1995] [holding that the notice of statements "made to IDTU personnel" at a police precinct did not cover statements made to the arresting officer at the scene]). It is unclear why the People elicited this non-noticed statement. They have not declared any intent to introduce it at trial. Perhaps they elicited it only to help establish probable cause to arrest, something the People may, certainly, do. (See People v. Aldrich-O'Shea, 6 Misc 3d 35 [App. Term, 2d Dep't 2004] [holding that a court may consider non-noticed statements at a suppression hearing to establish probable cause]). In any event, for the Huntley hearing here, the People had a duty to prove the voluntariness of the noticed statement. That was the statement made to Detective Watson in route to the 102nd Precinct at 12:30 a.m. This, they did not do. Therefore, the defense's motion to suppress the noticed statement is granted.

II. Mapp/Dunaway

At a Mapp/Dunaway hearing, the People have the initial burden of going forward with facts that establish, prima facie, that each police action was lawful. (See, e.g., People v. Harris, 192 AD3d 151, 157-58 [2d Dep't 2020]). If the People meet their burden of production, the burden then shifts to the defense to show, by a preponderance of the evidence, that the police action was unlawful. (See, e.g., id.).

Where police come upon a car that is already stopped or parked, their actions are generally analyzed under the framework of People v. De Bour, 40 NY2d 210 [1976].¹ De Bour establishes four levels on which to measure the intrusiveness of police action. First, police may approach a person and request basic information if they have an objective, credible, and articulable reason to do so. Such a reason need not be necessarily indicative of criminal activity. Second, police may ask more pointed questions, but may not seize a person, where they have founded suspicion that criminal activity is afoot. Third, police may temporarily detain a person where they have reasonable suspicion that a person has committed, is committing, or is about to commit a crime. And fourth, police may arrest a person when they have probable cause the person has committed a crime. The court takes each police action here in chronological order.

First, the police properly approached Mr. Urbina's car and requested information. The police responded to radio runs regarding a vehicle that had hit a pole, had a person slumped over inside, and had not moved in hours. This provides an objective, credible, and articulable reason for police to approach the car and request information. (See People v. Eugenio, 185 AD3d 1050 [2d Dep't 2020]; People v. McCaul, 71 Misc 3d 126[A], at *1 [App. Term, 2d Dep't 2021]; People v. Larkin, 62 Misc 3d 62, 65 [App. Term, 2d Dep't 2018]).

Second, the police opened the driver's side door, and the officers asked Mr. Urbina to step out of the vehicle, but this cannot be justified under De Bour. An officer's directive to exit a vehicle that is not moving is lawful if they have reasonable suspicion of criminal activity. (See People v. Harrison, 57 NY2d 470 [1982]; see also Eugenio, 185 AD3d at 1051-52; People v. Carr, 103 AD3d 1194, 1195 [4th Dep't 2013]). This rule is different than that which applies after the police stop a moving vehicle. (See Harrison, 57 NY2d at 475-76). Where officers stop a moving vehicle, they can order the people out of the car (or order them to remain in the car) because such an order only occurs after the police have " 'already lawfully decided that the driver shall be briefly detained.' " (Harrison, 57 NY2d at 477 [quoting Mimms, 434 U.S. at 111). " '[T]he incremental intrusion resulting from the request to get out of the car' once the driver ha[s] been lawfully stopped 'can only be described as de minimis.' " (Id. [quoting Mimms, 434 U.S. at 111]). The same reasoning does not apply when police approach a car that is already stopped, parked, or crashed—particularly one that has been at the location for hours, as was the case here. In this situation, the police have not yet detained the person at all. Therefore, an order to exit the vehicle escalates the encounter from non-detention to forcible stop.

Here, when the police opened Mr. Urbina's car door and ordered him to exit the vehicle, they did not have reasonable suspicion that he was engaged in criminal activity. Indeed, they had no indication of any criminal activity whatsoever. Instead, they only had indication that there had been a car accident and that the probable driver was, for some time, unconscious and had glossy, bloodshot eyes, facts that are consistent with a serious accident. (See People v. Rossi, 58 Misc 3d 284, 292 [Just. Ct., Monroe County 2017]). Without any indication of criminal activity—like any indication at all that the driver had been drinking alcohol or using drugs—a car accident itself does not provide any suspicion that the driver was engaged in criminal activity. (Id.).

However, that the police's actions were not justified under De Bour does not end the matter. Both the New York State and federal constitutions proscribe "unreasonable" searches and seizures. (NY Const. art. I, § 12; U.S. Const. amend. IV). As a result, the "touchstone" of a constitutional search-and-seizure analysis is "reasonableness." (People v. Garvin, 30 NY3d 174, 186 [2017]). While De Bour's levels concern an escalating police investigation for a crime, police may also act reasonably for other purposes. Such other purposes include rendering aid, providing emergency assistance, or engaging in community caretaking. (See People v. Klossner, 145 AD3d 1648, 1649 [4th Dep't 2016]; People v. McPherson, 89 AD3d 752 [2d Dep't 2011]; see generally Brigham City, Utah v. Stuart, 547 U.S. 398 [2006]; People v. Mitchell, 39 NY2d 173 [1976]).

Here, Officer Ponce and his partner responded to radio runs reporting a car accident in which a vehicle had hit a pole and the driver was slumped over. The radio runs reported that the car had been there for hours. Upon arriving at the scene, officers saw the car up against a pole, with its engine running, and the probable driver slumped over the wheel, unconscious. No other officers were present—these officers were the first on the scene. Although the officers were able to rouse the driver, his eyes were bloodshot and glossy. In such circumstances, it was objectively reasonable for the police to open the door and ask him to exit the vehicle for the purpose of attending to a possible emergency or to provide aid.² (See Klossner, 145 AD3d at 1649).

Third, after observing that Mr. Urbina smelled like alcohol upon exiting the vehicle, the police were justified in briefly detaining him to further investigate. (See, e.g., People v. Kemper, 65 Misc 3d 150[A] [App. Term, 1st Dep't 2019]; People v. Hira, 32 Misc 3d 129[A] [App. Term, 2d Dep't 2011]; People v. Smith, 2002 NY Slip Op. 40418[U] [App. Term, 2d Dep't 2002]).

Finally, the police were justified in arresting Mr. Urbina. The police had observed a crashed car and Mr. Urbina in the driver's seat. They had observed that Mr. Urbina smelled like alcohol and had bloodshot, glossy eyes. Mr. Urbina admitted to drinking alcohol. And Mr. Urbina could not follow directions in a field sobriety test. As a result, the police had probable cause to arrest him for a V.T.L. § 1192 offense. (See, e.g., Kemper, 65 Misc 3d 150[A]; People v. Mahncke, 34 Misc 3d 10 [App. Term, 2d Dep't 2011]; People v. O'Hanlon, 5 AD3d 1012 [4th Dep't 2004]).

As a result, the defense's Mapp/Dunaway motion to suppress the fruits of any unlawful police conduct is denied.

The foregoing constitutes the orders and decisions of the court.

Dated: March 14, 2023

Queens, NY

____________________

Wanda L. Licitra, J.C.C.

FOOTNOTES

1.   The analysis gets more complicated if police approach a car that is already stopped but is stopped in such a way that suggests that the car will soon after move, like if a car is stopped at a red light. (See People v. Ocasio, 85 NY2d 982 [1995]). In such a situation, a court must "consider all the facts" to opine whether "a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom." (Id. at 984). Here, however, the testimony was that the vehicle had been stopped at the corner for hours, so the court is comfortable assessing the police acts under a classic De Bour analysis, rather than wading into Ocasio's standard.

2.   One may object that no police officer here testified that the reason they opened the car door and ordered Mr. Urbina out was because they sought to provide aid or address an emergency. However, Brigham City, Utah v. Stuart and its progeny require an "objective" analysis. (547 U.S. 398, 404 [2006]). "An action is reasonable under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify the action." (Id. [internal quotation marks omitted]). "It therefore does not matter," under federal law, whether the actual subjective motives of the police were to "arrest" Mr. Urbina "and gather evidence" or to "assist" him as a possibly injured person. The question of whether a different standard may be required under the New York State Constitution has not been settled. (See, e.g., People v. Alberts, 161 AD3d 1298 [3d Dep't 2018]; People v. Rossi, 99 AD3d 947 [2d Dep't 2012]). Nonetheless, the defense does not argue for a different standard, and the court does not apply one here.

Wanda L. Licitra, J.