The People of the State of New York v. Edwin Macas, Defendant. (2026)

OPINION OF THE COURT

Defendant, Edwin Macas, was arraigned on May 16, 2025, and charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [3]), and, Operating a Motor Vehicle While Under the Influence of Alcohol (Impaired) (Vehicle and Traffic Law § 1192 [1]), based on allegations from May 14, 2025.

At the defendant's arraignment, the People served Criminal Procedural Law § 710.30 (1) (a) notice of one statement made to Police Officer Kemetrios Kolovos on May 14, 2025 at 8:38 p.m. at the intersection of 34th Avenue and 92nd Street, in sum and substance "I am not okay".

On June 30, 2026, this Court conducted a combined Dunaway/Mapp/Huntley/Vehicle and Traffic Law § 1194 hearing. Defendant filed a memorandum of law on July 21, 2026, and the People filed a memorandum in opposition on August 2, 2026.

At the hearing, the People introduced the testimony Police Officer Charlene Restituyo and Police Officer Demetrios Kolovos. The People introduced into evidence, one exhibit: Officer Restituyo's Body Worn Camera Footage (People's Exhibit 1).

FINDINGS OF FACT

Police Officer Demetrios Kolovos testified that he has worked as a police officer for the NYPD for approximately four years. Officer Kolovos testified that he received training in recognizing the signs of intoxication which include: bloodshot, watery eyes, slurred speech, unsteadiness on one's feet, a strong or moderate smell of alcohol (tr at 75, lines 1-8).

On May 14, 2026, Officer Kolovos was working a tour from 3:00 p.m. to 11:35 pm with his partner that day Lieutenant Morningkeheller. At approximately 8:30 p.m., he was driving to a 311 call and was driving southbound on 92nd Street approaching 34th Avenue in Queens County. Officer Kolovos observed traffic moving unusually slow and was "waved down by a gentleman named Frank" who approached the police vehicle and notified Officer Kolovos that there was a vehicle ahead with "the motorist knocked out unresponsive behind the wheel" (tr at. 77, lines 9-18). Officer Kolovos then pulled his vehicle in front of the vehicle described to him and observed "a motorist unresponsive behind the wheel" (tr at. 77, lines 21-24). While behind the vehicle attempting to go around it, Officer Kolovos observed the brake lights were on, indicating that the brake pedal was pressed and the vehicle was running. When Officer Kolovos got out of his vehicle he observed through the windshield that a person was unconscious behind the wheel. Officer Kolovos recognized the person he saw unconscious behind the wheel as the Defendant. Officer Kolovos immediately requested an ambulance. Another officer was trying to wake up the driver by speaking to him through the open window on the driver's side. Officer Kolovos then reached inside the vehicle and opened the driver's side door to gain access to the vehicle, which was locked (tr at 80, lines 1-5). As he did this, Officer Kolovos noticed the vehicle was still in drive, he placed the vehicle in park, removed the keys from the ignition, and continued to try and get the attention of the person behind the wheel. Officer Kolovos testified that he took these actions because he believed that the Defendant was having a medical emergency and that because the vehicle was in drive it could potentially cause a hazardous situation for Defendant and those around him (tr at 81, lines 1-7). At this time, Defendant regained consciousness and Officer Kolovos smelled a strong odor of alcohol (tr at 81, lines 10-17). Officer Kolovos spoke briefly to Defendant as he assisted Defendant in exiting the vehicle and moving him out of the roadway.

As the Defendant exited the vehicle, Officer Kolovos observed an alcohol bottle at the driver's side foot-well (tr at 82, lines 13-18). Officer Kolovos did not move anything to see this bottle in the floorboard and stated it resembled a Corona glass bottle (tr at 83, lines 1-6). As Officer Kolovos assisted Defendant in getting out of the road, he observed that he had blood shot watery eyes and was unsteady on his feet, as he carried him to the side of the road (tr at 82, lines 18-22). At this point, Officer Kolovos placed the Defendant in "hand restraints" "for the safety of myself and others" and escorted Defendant to rear of the vehicle (tr at 83 lines 14-21). Officer Kolovos stated that he placed the Defendant in handcuffs because "we were in the middle of traffic and traffic was actively trying to flow through" and that he "pulled him over to the side to avoid potentially getting hit by a car and allow traffic to flow through" (tr at 84, lines 10-16).

After placing the Defendant in handcuffs, Officer Kolovos then escorted him towards the rear of the vehicle and asked him if he was okay (tr at 83, lines 14-21). When Officer Kolovos asked the Defendant the question: "are you ok?" his demeanor was clam, his weapon was holstered, and Lieutenant Morningkeheller was present and standing on the driver's side of the vehicle approximately six to eight feet away. Shortly after Defendant was directed to the rear of the vehicle, the ambulance arrived and he was escorted to the ambulance for evaluation. Officer Kolovos told the EMTs that the Defendant was possibly under arrest for driving a motor vehicle while intoxicated because at the time he was unsure if Defendant was going through a medical emergency or his condition was the result of being under the influence of some type of substance (tr at 86, lines 7-19). Officer Kolovos stated that he did place the Defendant under arrest based on the information that he was in a stopped vehicle, "[b]ecause he had beer bottles located on the foot-well of the vehicle, slurred speech, unsteadiness on his feet, bloodshot, watery eyes, and had a strong odor of alcohol coming from his person" (tr at 88, lines 1-5).

Officer Kolovos testified that, at the scene, Officer Howell discovered a second alcohol bottle "when he opened the passenger's side door of the vehicle" (tr at 88, lines 19-23). Officer Kolovos was told by Officer Howell that he had seen an alcohol bottle on the foot well of the passenger side of the car. The bottle fell out of the vehicle when Officer Howell opened the door (tr at 89, lines 17-22). Officer Kolovos also saw this bottle when the vehicle was being vouchered on "the passenger's side on the front" (tr at 88, lines 12-13).

Police Officer Charlene Restituyo testified that she is currently employed in the NYPD's 115th precinct as a police officer and has been for two and a half years. She has made approximately 55 arrests. Approximately five to six of those arrests were for driving while intoxicated (tr at 11, lines 8-17). Officer Restituyo received intoxicated driver IDTU training at the police academy where she learned how to recognize an impaired person. These signs of intoxication include slurred speech, unsteadiness on one's feet, smell of alcohol, bloodshot eyes.

On May 14, 2025, Officer Restituyo was working from 3:00 p.m. to 11:35 p.m. as station house security foot patrol. At approximately 9:10 to 9:15 p.m., she was assigned to the arrest of Edwin Macas and told to go to Elmhurst Hospital for driving under the influence of alcohol (tr at 13, lines 15-25; at 14, line 1). She identified the Defendant as Edwin Macas, the person who she was assigned to investigate? that day. Officer Restituyo arrived to Elmhurst Hospital at approximately 9:30 p.m. and went directly to Defendant and Officer Day, the IDTU highway patrol officer present. At that time, she observed that the Defendant had "[b]loodshot eyes, slurred speech, smelled a lot like alcohol" (tr at 15, lines 16-25). Officer Day asked Officer Resituyo to translate the request for the Defendant to submit to a blood test. Officer Resituyo is certified by the NYPD to interpret Spanish. At approximately 10:00 p.m. the defendant consented to the blood test (tr at 20, lines 1-18). Before consenting, Defendant expressed confusion about how the blood would be drawn, the officers explained who would draw the blood, after which he consented to the blood test and signed the form to give permission for the blood draw. Nurse Tenson Palzom drew defendant's blood. Officer Restituyo provided testimony translating the Spanish that was spoken to defendant to ask him to submit to a blood test. Officer Restituyo asked the defendant in Spanish and translated this into English during testimony: "At this moment, you are being arrested because of the influence of alcohol. In this moment we would like to draw blood from you. Do you consent, yes or no?" (tr at 29). After Officer Restituyo requested multiple times for defendant to respond verbally, he said yes. After administering a test involving a pen, Officer Restituyo told the Defendant: "You sign right there so you can give us permission to draw the blood" while showing him the IDTU form (tr at 37, lines 22-25; at 38, lines 1-3). Defendant asked multiple times what the form was and Officer Restituyo, through Spanish translation, that the form was to give the officers permission to draw blood. The Defendant then asked how he was going to give the blood (tr at 40 lines, 21-25). Officer Restituyo explained to the defendant multiple times that he was under arrest for driving while intoxicated and that he was being asked to submit to a blood test. The defendant stated "no" indicating he would not take the test; the defendant was then informed of the consequences of refusal. Ultimately, Defendant agreed to the blood test and signed the consent paperwork (People's Exhibit 1). Defendant's blood was drawn at approximately 11:00 p.m.

CONCLUSIONS OF LAW

The People bear the initial burden to establish, by credible evidence, the lawfulness of police conduct (People v Berrios, 28 NY2d 361, 367-368 [1971]; People v Hernandez, 40 AD3d 777, 778 [2d Dept 2007]). In evaluating police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v DeBour, 40 NY2d 210, 215 [1976]). An officer has probable cause to arrest an individual for committing an offense when "[it] appear[s] to be more probable than not that a crime has taken place and the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 NY2d 248, 254 [1981]). If the People satisfy their initial burden, the Defendant bears the ultimate burden of proving any illegality of police conduct by a preponderance of the evidence and that, therefore, the evidence should be suppressed (Berrios at 367).

Crucial to any court's assessment in determining whether police conduct was lawful is an assessment of the credibility of witness testimony (People v Morales, 42 NY2d 129, 134 [1977]; People v Harris, 192 AD3d 151 [2d Dept 2020]). "Credibility is a many faceted concept ... requiring a careful assessment of a number of subtle factors before testimony can be labeled as believable or unbelievable" (People v Wise, 46 NY2d 321, 325 [1978]; see Guide to NY Evid rule 6.11 (Impeachment, When Authorized and Provable by Extrinsic Evidence, https://nycourts.gov/JUDGES/evidence/6-WITNESSES/6.11_Impeachment_when_ authorized.pdf).

The Court finds the testimony of Officer Kolosov and Officer Restituyo to be credible and after a review of the evidence, the parties' arguments, and relevant caselaw, makes the following conclusion of law.

Lawfulness of Stop and Arrest

An officer may approach a vehicle for reasons beyond the commission of a crime, such as for purposes of providing assistance and providing a public service, including protecting citizens from harm. This community caretaking doctrine is embedded in the principle that the roles of law enforcement extend beyond the prevention of crime and may stop a vehicle if it appears that an individual may need assistance (People v Brown, 42 NY3d 270 [2024]; People v Serrano, 229 AD3d 642 [2d Dept 2024]). In assessing whether a stop is justified under this community caretaking doctrine a court must assess first whether an officer has "specific, objective, and articulable facts which, standing alone, reasonably would suggest" that assistance is necessary (id. at 278) and second, that the police intrusion is narrowly tailored to address the perceived need for assistance such that "the level of intrusion must be commensurate with the perceived need for assistance" (id. at 279 [internal citations omitted]). For an automobile stop, "any continuation of the stop beyond what is necessary to ascertain whether an occupant needs aid requires at least reasonable suspicion of criminal activity" (id. [internal citations omitted]).

Here, Officer Kolovos's testimony identified specific, objective, and articulable facts which, standing alone, reasonably would suggest that assistance was necessary. Officer Kolovos testified that he was flagged down by a person who told him that there was a motorist unresponsive behind the wheel in the vicinity of Officer Kolovos's patrol vehicle. Officer Kolovos then pulled his vehicle in front of the vehicle described to him and observed "a motorist unresponsive behind the wheel" (tr at 77, lines 21-24). Officer Kolovos exited his vehicle and observed again through the windshield that the driver was unconscious, and during this time that the brake lights were on, indicating that the brake pedal was pressed and the vehicle was running.

During this time, another officer was trying to wake up the driver by speaking to him through the open window on the driver's side. Officer Kolovos then reached inside the vehicle and opened the driver's side door to gain access to the vehicle, which was locked (tr at 80, lines 1-5). As he did this, Officer Kolovos noticed the vehicle was still in drive, he placed the vehicle in park, removed the keys from the ignition, and continued to try and get the attention of the person behind the wheel. Officer Kolovos testified that he took these actions because he believed that the Defendant was having a medical emergency and that because the vehicle was in drive it could potentially cause a hazardous situation for defendant and those around him (tr at 81, lines 1-7). This approach of the car was a level of intrusion commensurate with the perceived need for assistance under the second required prong of the community caretaking doctrine, as the Officer entered and stopped the vehicle to the extent necessary to ensure the Defendant's safety (see Brown at 279).

After this stop, the continued intrusion must comport with the four-tier analysis articulated in De Bour (40 NY2d 210). De Bour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" (id.). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may affect a full-blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime (id. at 223). In laying out this four-tiered analysis, the Court of Appeals recognized "that police-citizen encounters are dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize and indeed require additional action as the scenario unfolds" (De Bour at 225; see People v Hollman, 79 NY2d 181, 191 [1992]). Where, as here, a defendant is charged with a driving while intoxicated related offense, probable cause exists when an officer "can demonstrate reasonable grounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law § 1192" (People v Kowalski, 291 AD2d 669, 670 [3d Dept 2002]).

Here, while Officer Kolovos seized the vehicle by forcibly turning it off, he smelled a strong odor of alcohol on the defendant, providing him reasonable suspicion that he was involved in driving under the influence. Officer Kolovos then assisted defendant in stepping out of the vehicle as the defendant exited the vehicle, Officer Kolovos observed an alcohol bottle at the driver's side foot-well (tr at 82, lines 13-18). As Officer Kolovos assisted defendant in getting out of the road he observed that he had blood shot watery eyes and was unsteady on his feet, as he carried him to the side of the road (id. at p 82 lines 18-22). At this point, Officer Kolovos placed the Defendant in "hand restraints" (tr at 83, lines 14-21).

While Officer Kolovos testified that handcuffing the Defendant was "for the safety of myself and others" and escorted Defendant to read of the vehicle (tr at 83, lines 14-21). Officer Kolovos further stated that he placed the Defendant in handcuffs because "we were in the middle of traffic and traffic was actively trying to flow through" and that "I pulled him over to the side to avoid potentially getting hit by a car and allow traffic to flow through" (tr at 84, lines 10-16).

While not all handcuffing amounts to an arrest, here there was not, as in People v Persaud (244 AD2d 577, 578 [2d Dept 1997], appeal denied 91 NY2d 976 [1998]) "a rapidly developing and possibly dangerous situation" where the police are entitled to "take reasonable measures to assure their safety", "including handcuffing a suspect detained on reasonable suspicion" (see Persaud at 577, quoting People v Allen, 73 NY2d 378, 380 [1989]). There are no facts in the record to support the conclusion that defendant "was armed or dangerous, or likely to resist arrest or flee" in fact, defendant was barely conscious and there are no facts to support a conclusion that handcuffing a person would keep them safe from traffic. Therefore, here, "handcuffing him was inconsistent with an investigatory detention and elevated the intrusion to an arrest not based on probable cause" (see People v Perez, 170 AD3d 495 [1st Dept 2019]).

While Officer Kolovos stated that he informed EMTs that it was still a "possible" arrest there was no testimony that Officer Kolovos did any further investigation or took into account any information from the EMTs before deciding that Defendant was in fact "under arrest". Further, there is no indication that handcuffing was necessary for any further investigation or evaluation by EMTs. No evidence was adduced at the hearing that officers continued the investigation to support that the handcuffing was for investigatory detention and not an arrest. Therefore, here, the handcuffing of Defendant amounted to his arrest (People v Ryan, 12 NY3d 28, 30-31 [2009] [holding that the investigatory detention that occurred here exceeded the scope of that permitted under People v Hicks, 68 NY2d 234 [1986], where police held the defendant for approximately 13 minutes for "investigation" to complete a photo array, however, proper administration of the photo array did not require defendant's presence, "Nor were there any other exigencies that might have permitted holding defendant while the photo array was conducted"]; see also People v Blanding, 116 AD3d 498, 499 [1st Dept 2014] ["Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances. In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee"]; People v McCree, 113 AD3d 557, 558 [1st Dept 2014] ["handcuffing of defendant elevated his seizure to an arrest"]).

Therefore, defendant was under arrest when Officer Kolovos placed defendant in handcuffs, shortly after 8:30 p.m., as the officer stated that was when he was driving and came to the scene where he interacted with the defendant, immediately removing him from the car and handcuffing him (see Persaud, 244 AD2d 577).

The observations of Defendant in the driver's seat of the car with the engine running and keys in the ignition, with the car in drive and the brake lights illuminated support that Defendant was operating the vehicle. The observations of Defendant as smelling of a strong odor of alcohol, having blood shot watery eyes and being unsteady on his feet, as he had to be partially carried to the side of the road, and him being found unconscious in the vehicle, stopped in the middle of the street slowing traffic, support the probable cause for intoxication. Thus, the totality of the evidence supports that Officer Kolovos had sufficient probable cause to arrest of the Defendant for driving while intoxicated related offenses at the point of arrest, when he was placed in handcuffs, as evaluating the totality of the circumstances, "a reasonable person in the position of the officer could have concluded that the motorist had operated a vehicle while under the influence of [alcohol]" (People v Farrell, 89 AD2d 987, 988 [2d Dept 1982]; see also People v Vandover, 20 NY3d 235 [2012]).

Therefore, the Defendant's motion to suppress evidence as fruits of an unlawful arrest pursuant to Dunaway is DENIED.

Huntley Hearing

At a Huntley hearing, the People bear the burden of proving the voluntariness of each statement made by Defendant to law enforcement beyond a reasonable doubt (People v Huntley, 15 NY2d 72, 78 [1965]). If the People have satisfied their obligation, the burden is on the Defendant to show otherwise (People v Vidal, 44 AD3d 802, 802 [2d Dept 2007], lv denied 9 NY3d 1010 [2007]). In determining the voluntariness or involuntariness of the Defendant's statements, the Court considers whether the statements are coerced or obtained by threats, improper conduct, undue pressure, or trickery (Brown v Mississippi, 297 US 278 [1936]; CPL 60.45 [2] [a]). Additionally, Miranda safeguards are triggered whenever there is custodial interrogation. In deciding whether a Defendant is in custody, the Court evaluates whether a reasonable person, innocent of any crime, would have thought she was free to leave had she been in the Defendant's position (People v Harris, 48 NY2d 208, 2015 [1979]; People v Yukl, 25 NY2d 585 [1969]). In evaluating whether a Defendant has been subject to interrogation, the Court looks to 'words' or 'actions' on the part of the police that are likely to elicit an incriminating response (People v Wortham, 37 NY3d 407, 413 [2021], quoting People v Ferro, 63 NY2d 316 [1984]). The People may not use statements that are the product of custodial interrogation unless it demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination (People v Paulman, 5 NY3d 122 [2005]; Miranda v Arizona, 384 US 436, 444-45 [1966]).

As it relates to the Defendant's statement at the scene and whether they were attained in violation of the Defendant's Miranda rights, first "[t]o ascertain custodial status, we must consider whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave . . . and whether there has been a forcible seizure which curtails a person's freedom of action to the degree associated with a formal arrest" (People v Cabrera, 41 NY3d 35, 52 [2023] [internal citations and quotations omitted]).

Generally, "roadside detentions have been held to be noncustodial and reasonable initial interrogation attendant thereto has been held to be merely investigatory" (People v Mathis, 136 AD2d 746 [2d Dept 1988], appeal denied 71 NY2d 899 [1988]; see People v Brown, 104 AD2d 696 [3d Dept 1984]; People v Johnson, 59 NY2d 1014 [1983]; People v Chestnut, 51 NY2d 14 [1980]; People v Small, 212 AD3d 655 [2d Dept 2023], lv denied 39 NY3d 1157 [2023]; People v Gore, 117 AD3d 845 [2d Dept 2014], lv denied 24 NY3d 1084 [2014]). These cases follow the reasoning of the Supreme Court in Berkemer v McCarty (468 US 420, 440 [1984]), that the "noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda."

As discussed above, the defendant was under arrest, and therefore, in custody for purposes of Miranda at the time the noticed statement was made. However, the sole question posed to Defendant was "are you ok?" and given the context of defendant being found unconscious and the officer having immediately called for an ambulance, this question at most was investigatory, not accusatory in nature (see Mathis supra). Furthermore, the question, in this context was not one that the officer should have known would elicit an incriminating response (see Wortham supra).

Accordingly, Defendant's motion to suppress the noticed statements is DENIED.

Voluntariness of Statements

Further, the People satisfied their burden in proving beyond a reasonable doubt that the noticed statements were voluntary since no evidence was adduced at the hearing that they were the product of force, threats, or coercion, as evidenced by the circumstances surrounding the noticed statements (see CPL 60.45; People v Huntley, 15 NY2d 72 [1965]). The motion to suppress the noticed statement at the scene, is DENIED and admissible at trial during the People's case-in-chief.

Motion to Suppress Physical Evidence

Turning to Defendant's motion to suppress the containers of alcohol recovered from the Defendant's vehicle, the People bear the burden of going forward to show the legality of police conduct. The Defendant then bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed because the police conduct was illegal (Mapp v Ohio, 367 US 463, [1961]; People v Knapp, 52 NY2d 689 [1981]; People v Ramirez, 304 AD2d 592 [2d Dept 2003]). Here, the People rely on the premise that the open containers were first visible in plain view and that there was later a valid inventory search of the vehicle at the precinct.

A search of an automobile falls within the purview of Fourth Amendment considerations, however, there are exceptions. Law enforcement officers may properly seize an item in 'plain view' without a warrant if (1) they are lawfully in a position to observe the item; (2) they have lawful access to the item itself when they seize it (3) the incriminating character of the item is immediately apparent (People v Velasquez, 110 AD3d 835 [2d Dept 2013], citing People v Brown, 96 NY2d 80, 88-89 [2001]). A search of a vehicle may be conducted where during the course of an initial investigatory stop, officers observe indicia of criminality (People v Thomas, 181 AD3d 831, 833 [2020], quoting People v Vargas, 89 AD3d 771, 772 [2011], lv denied 36 NY3d 976 [2020] [a warrantless search of a vehicle is permitted when "police have probable cause to believe the vehicle contains contraband, a weapon or evidence of a crime"). The automobile exception to the warrant requirement permits officers to search every part of a vehicle and its contents that may contain the object sought (see People v Mosquito, 197 AD3d 504 [2d Dept 2021]; People v Ellis, 62 NY2d 393, 398 [1984]).

Here, officers were authorized to enter and search the vehicle under the "plain view" automobile exception to the warrant requirement (People v Boykin, 188 AD3d 1244 [2d Dept 2020] [police were authorized to enter the vehicle and order the defendant out based on their observation of a cup of alcohol in plain view]; People v Knight, 205 AD3d 928 [2d Dept 2022], appeal withdrawn 38 NY3d 1151 [2022] [holding that police had probable cause to search for additional open containers when they observed an open bottle of tequila and an odor of alcohol in the defendant's vehicle]). In instances where the search of a vehicle was expressly not authorized, evidence of contraband was not readily visible to officers under the "plain view" doctrine during a lawful stop of a vehicle, or the scope of the stop exceeded constitutional boundaries. For instance, in People v Eugenio (185 AD3d 1050 [2d Dept 2020], appeal withdrawn 35 NY3d 1112 [2020] police observed the defendant sleeping in a car with the engine running and ordered the Defendant out of the vehicle. The Second Department ruled that the search of the vehicle was unlawful because officers were not authorized to order the defendant out of the vehicle in the first instance. There, officers only observed an open container of alcohol in the car after the defendant was unlawfully ordered out of the vehicle. In People v Rodriguez, pills recovered from the Defendant's vehicle should have been suppressed because there was insufficient probable cause that the bag of pills, identified as Clonazepam, were the instrumentality of a crime (211 AD3d 854 [2020], lv denied 39 NY3d 1079 [2023]). However, the Court stated that the recovery of a firearm was lawful because the search of the vehicle was justified under the "plain view" doctrine because officers' observed marijuana on the defendant's shirt (id. at 856 citing People v Diaz, 81 NY2d 106, 110 [1993]). The Court emphasized that "the plain view doctrine establishes an exception to the requirement of a warrant not to search for an item but to seize it" (id.). This distinction in analysis is important.

Here, there are two different alleged containers of alcohol recovered from Defendant's vehicle through different circumstances. First, Officer Kolovos stated that he observed an alcohol bottle in the floorboard that resembled a Corona glass bottle as he assisted Defendant in exiting the vehicle. As explained above Officer Kolovos was permitted to open the Defendant's car door and help him exit the vehicle under the caretaking doctrine, as he was found unconscious in the middle of moving traffic, with his vehicle's ignition running and in drive (see People v Brown, 42 NY3d 270 [2024]). Therefore, Officer Kolovos could lawfully observe this item and had lawful access to the item to seize it. While interacting with the Defendant in helping him exit the car, Officer Kolovos smelled the strong odor of alcohol and then observed what appeared to be a Corona glass bottle, thus the incriminating character of the item was immediately apparent for the crime of driving while intoxicated (see People v Velasquez, 110 AD3d 835 [2d Dept 2013]).

Defendant's motion to suppress the glass bottle of Corona observed in the front driver's side floorboard by Officer Kolovos is therefore DENIED.

Turning to the second bottle of alcohol allegedly observed by Officer Howell. The People argue that this bottle is admissible under the plain view doctrine based on Officer Howell's conduct and that Officer Kolovos's observation of the bottle is lawful as an inventory search. The People have not met their burden to support either theory.

The only testimony regarding this second bottle is as follows: Officer Kolovos testified that Officer Howell saw a second alcohol bottle "when he opened the passenger's side door of the vehicle" (tr at 88, lines 19-23). Officer Kolovos was told by Officer Howell that he had seen an alcohol bottle on the foot well of the passenger side of the car. The bottle fell out of the vehicle when Officer Howell opened the door (tr at 89, lines 17-22). Officer Kolovos also saw this bottle when the vehicle was being vouchered on "the passenger's side on the front" (tr at 88, lines 12-13).

The record is devoid of information as to when Officer Howell opened the car door. Officer Kolovos did not testify as to when Officer Howell told him that he opened the door, nor did he testify as to when Officer Howell arrived at the scene, or when he observed him at Defendant's car. Nor did the People introduce body worn camera of any officer from the scene from which the Court may have been able to glean this information. Officer Kolovos's partner on the day of the arrest was Lieutenant Morningkeheller, and he did not testify that anyone else was in the patrol vehicle with them. There is also no evidence of what type of alcohol bottle this was for the court to assess the incriminating character of the item was immediately apparent. Accordingly, the People have failed to meet their burden to show that the search was lawful under the plain view doctrine (People v Velasquez, 110 AD3d 835 [2d Dept 2013]).

As to the justification of the search as an "inventory search" by Officer Howell, "[t]he People bear the burden of demonstrating the validity of the inventory search" (People v Padilla, 21 NY3d 268, 272 [2013]).

"An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched. . . . [A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. To guard against this danger, an inventory search should be conducted pursuant to an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably"

(People v Johnson, 1 NY3d 252, 255-56 [2003] [holding that "the evidence adduced at the hearing was clearly insufficient to satisfy the prosecutor's initial burden of establishing a valid inventory search. Although the officer testified that he knew of the general objectives of an inventory search and declared that his search of the glove compartment box fulfilled those objectives, the People offered no evidence to establish the existence of any departmental policy regarding inventory searches"]).

Here, the record is devoid of any testimony or evidence regarding the established procedure for an inventory search, as such, the People have not met their burden to show this bottle of alcohol was recovered pursuant to a valid inventory search.

The Defendant's motion to suppress the alcohol bottle observed by Officer Howell is GRANTED.

Vehicle and Traffic Law § 1194 — Admissibility of Chemical Breath Test

The Defense argues that Officer Restituyo directed the blood draw, and that she did not have knowledge of the reasonable grounds to support the basis for the arrest as required to request the blood draw. The People argue that Officer Restituyo's testimony was sufficient to support their burden.

Preliminarily, Vehicle and Traffic Law § 1194 [2] [a], dictates that "[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test within two hours after such person has been placed under arrest " (Vehicle and Traffic Law § 1194 [2] [a]). CPL 710.20 [5], specifically authorizes courts to suppress or exclude evidence of a chemical test of the Defendant's blood administered more than two hours after a Defendant's arrest. However, where a Defendant "expressly and voluntarily" consents to a chemical test administered more than two hours after his or her arrest, Vehicle and Traffic Law § 1194's two-hour limit is inapplicable (see People v Atkins, 85 NY2d 1007, 1008-1009 [1995]; People v Odum, 31 NY3d 344, 346 [2018]). The burden is on the People to establish a defendant's consent "be clear and positive evidence" (People v Capraella, 165 Misc 2d 639, 644 [Crim Ct, Queens County 1995]).

Article 1194 also requires that the request for a chemical test be done "at the direction of a police officer" who has "reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for any such violation; or having reasonable grounds to believe such person to have been operating in violation of section eleven hundred ninety-two-a of this article and within two hours after the stop of such person for any such violation" (Vehicle and Traffic Law § 1194 [2] [a] [1]). For a Defendant over the age of twenty-one, for purposes of Vehicle and Traffic Law § 1194 [2], reasonable grounds "shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of such subdivision. Such circumstances may include any visible or behavioral indication of alcohol consumption by the operator, the existence of an open container containing or having contained an alcoholic beverage in or around the vehicle driven by the operator, or any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle after having consumed alcohol at the time of the incident" (Vehicle and Traffic Law § 1194 [2] [a] [3]).

As Article 1194 requires an officer to possess reasonable grounds, with an explicit standard equivalent to probable cause, the People must show that the test was requested by an officer with first-hand knowledge or that this information was communicated from an officer with first-hand knowledge to the officer requesting the chemical test. The People are not required to produce each and every police officer who came into contact with a defendant or who has any knowledge of the criminal incident and surrounding circumstances (see People v Witherspoon, 66 NY2d 973, 974 [1985]; People v Rosado, 222 AD2d 617, 618 [2d Dept 1995], appeal denied 88 NY2d 853 [1996]). However, the People must establish through first-hand knowledge or the "fellow officer" rule, the circumstances of a defendant's detention (see e.g. People v Gonzalez, 80 NY2d 883 [1992]; People v Ramirez—Portoreal, 88 NY2d 99 [1996]; People v Powell, 101 AD3d 756 [2d Dept 2012], appeal withdrawn 20 NY3d 1064 [2013]). "Under the fellow-officer rule, if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or fellow officer or another police department, provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest" (Powell at 758).

In Powell, the Appellate Division found that where "the People did not present evidence to establish that the officers who stopped and detained the defendant and his codefendant actually received any information from another officer who may have possessed probable cause" that the People had not established probable cause for the arrest (emphasis added) (Powell at 758.). This was the case despite the fact that, the "People demonstrated that certain officers who interviewed an eyewitness had sufficient information to constitute probable cause" but because "the People presented no evidence that those officers communicated that information to the arresting officers prior to the stop and detention of the defendant" and because "[t]he People also did not present any testimony from the arresting officers as to what information they possessed or how they received it before they detained the defendant and his codefendant" probable cause was not established (emphasis added) (Powell at 758).

Here, the People provided testimony of Officer Kolovos which established the probable cause for Defendant's arrest, and as such, reasonable grounds for the demand for a chemical test under Vehicle and Traffic Law § 1194 (2) (a) (3). However, Officer Kolovos's testimony concluded without any mention of to whom, if anyone, Officer Kolovos communicated Defendant's arrest and its basis. Nor did his testimony explain who took custody of the Defendant from the scene, or if Officer Kolovos transported Defendant to the hospital himself. Officer Restituyo testified, and her body-worn camera reflects, that when she arrived at the hospital, Defendant was only with Officer Day, who requested her help in translating the request for the blood test. There was no testimony elicited at the hearing as to how Officer Day came to be involved in the case and to have Defendant in his custody. There is also no testimony regarding how Defendant came to be at the hospital from the scene, and what officer or civilian was with him during this transport. Therefore, the People have not established that Officer Restituyo or Officer Day were officers working "in close temporal and spatial proximity" to Officer Kolovos, or any other officer who could have established the connection between the Officer Kolovos's attainment of probable cause and Officer Restituyo's actions (cf. People v Gittens, 211 AD2d 242 [2d Dept 1995], appeal denied 87 NY2d 845 [1995] [when officers are working "in close temporal and spatial proximity to each other," one officer's possession of knowledge establishing probable cause may be imputed to another officer even without any communication between them]).

There is also no evidence of communication by Officer Kolovos, the officer who possessed the probable cause, to anyone. Officer Kolovos did not testify that he spoke to anyone, and his body worn camera is not in evidence. Further, while Officer Restituyo did testify that she was "being assigned an arrest" for driving under the influence of alcohol for the Defendant (Tr at 13, lines 21-25), there is no evidence regarding how Officer Restituyo was assigned this arrest, who communicated this to her, and what the communication entailed. While the Court of Appeals held in People v Lypka (36 NY2d 210, 213-14 [1975]), that "[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability" when the basis for probable cause is challenged, "to sustain their burden at the suppression hearing, the People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act" (id.). Here, there is not reliable evidence from which this Court can find who the "sender or sending agency" was to find that the People have met their burden.

Finally, it is apparent from Officer Restituyo's body-worn camera, that it was in fact Officer Day, not Officer Restituyo who is administering the request for a blood test. Officer Day is seen reading the IDTU form, directing Officer Restituyo what to say, and conducting some testing with Defendant with a pen (People's Exhibit 1). Officer Restituyo is acting as an interpreter (id.). Officer Day did not testify and Officer Kolovos did not testify as to any interaction or communication with Officer Day. Officer Restituyo did not testify as to how Officer Day became involved in the case, nor does the body worn camera indicate how Officer Day knew he had authority to have Defendant in custody and demand a blood test.

Where there is no evidence as to how, or if, the sending agency possessed the requisite probable cause, or even precisely who the sending agency or individual was in this case, and the record is bereft of such details or any information as to what was relayed to Officer Day or Officer Restituyo, the Court cannot find the People's burden of proof has been met (see People v Asbury, — AD3d —, 2026 NY Slip Op 04617, 1-2 [4th Dept July 24, 2026]).

As such, the Defendant's motion to suppress the blood test results is GRANTED.

Unnoticed Statements

Defendant moved to preclude all unnoticed statements and identifications at the commencement of the hearing however, the Defense did not specify any specific statements they seek to preclude.

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 law enforcement 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]). A CPL 710.30 [1] [a] notice must "specify the evidence intended to be offered." Thus, the People are "required to inform defendant of the time and place the oral or written statements were made" (People v Lopez, 84 NY2d 425, [1994]). While full copies of statements need not be supplied, "they must be described sufficiently so that the defendant can intelligently identify them" (id.). The purpose of CPL 710.30 (1) (a) notice is "to facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him" (id. at 428).

Preclusion is the sanction where the People fail to timely serve notice of a statement that falls under CPL 710.30 (1) (a), however, it must first be found that the statement required notice under CPL 710.30 (1) (a). Without the defense seeking to preclude specific statements, this Court cannot make that threshold finding.

Secondly, it is incumbent upon the defense to make a preclusion claim and not participate in the suppression hearing regarding the unnoticed statements. If the defendant has the opportunity to litigate an improperly noticed or completely unnoticed statement, the preclusion argument is waived (People v Griffin, 12 AD3d 458 [2d Dept 2004], lv denied 4 NY3d 886 [2005]; People v Barrows, 251 AD2d 711 [3d Dept 1998], appeal denied 92 NY2d 878 [1998]; People v McCray, 53 Misc 3d 19, 23—24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016], lv denied 28 NY3d 1125 [2016]). Indeed, the purpose of the notice requirement is to afford the defendant an opportunity to challenge the voluntariness of the statements; "a defendant cannot challenge that of which he lacks knowledge" (People v Lopez, 84 NY2d 425, 428 [1994]).

Therefore, the motion to preclude any specific statements or identifications is referred to the trial court.

CONCLUSION

For the reasons described above, the People have met their burden to establish probable cause for the arrest of the Defendant for violation of Vehicle and Traffic Law § 1192.

Defendant's motion to suppress the glass bottle of Corona is DENIED (Mapp v Ohio, 367 US 643 [1961]);

Defendant's motion to suppress the alcohol bottle observed by Officer Howell is GRANTED(Mapp v Ohio, 367 US 643 [1961]);

Defendant's motion to suppress the noticed statement pursuant to CPL 710.30 (1) (a) is DENIED.

Defendant's motion to suppress the results of the blood test is GRANTED (Vehicle and Traffic Law § 1194 [2] [a]).

Defendant's motion to preclude unnoticed statements and identifications pursuant to CPL 710.30 (1) (a), (b) is referred to the trial court.

The foregoing constitutes the opinion, decision, and order of the Court.

Dated:August 21, 2026

Queens, New York

ENTER

Vidya Pappachan, J.C.C

Vidya Pappachan, J.