PEOPLE v. BENOIT

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Criminal Court, City of New York.

The PEOPLE of the State of New York, v. Francis BENOIT, Defendant.

2018BX033787

Decided: November 15, 2019

For the Defendant: Mariam Gaye, Esq., Bronx Defenders, 360 East 161st Street, Bronx, New York 10451 For the People: ADA Gabriel Fromer, Bronx District Attorney's Office, 215 East 161st Street, Bronx, New York 10451

MOTION TO SUPPRESS STATEMENT AT THE SCENE: DENIED

MOTION TO SUPPRESS POLICE OBSERVATIONS: DENIED

MOTION TO SUPPRESS CHEMICAL TEST RESULTS: DENIED

MOTION TO SUPPRESS FIELD SOBRIETY TESTS: DENIED

MOTION TO SUPPRESS POST- MIRANDA STATEMENTS: DENIED

Defendant is charged in the accusatory instrument with one count of Driving While Intoxicated, per se [VTL § 1192(2)], one count of Driving While Intoxicated [VTL § 1192(3)] and one count of Driving While Ability Impaired [VTL § 1192(1)].

On November 20, 2018, defendant moved for an order to suppress any and all evidence related to his chemical breath test, or in the alternative, an Ingle/Johnson/ Atkins/ Mapp/Dunaway hearing. Defendant further moved to suppress all police observations including what is depicted on the Intoxicated Driver's Testing Unit (hereinafter “IDTU”) video recording. Finally, defendant moved to suppress any and all statements made by him for which the People provided proper notice pursuant to CPL § 710.30, or in the alternative, a Huntley/Dunaway hearing. On December 4, 2018, the People consented to an Ingle/Johnson/Atkins/Mapp/Huntley/Dunaway hearing. On September 17, 2019, this Court held an Ingle/Johnson/Atkins/Mapp/Huntley/Dunaway hearing. The sole witness at the hearing was Police Officer (“P.O.”) Paul Catanzarita who testified on behalf of the People. The Court finds P.O. Catanzarita's testimony to be credible in all relevant aspects.

FINDINGS OF FACT

P.O. Paul Catanzarita has been an officer with the New York City Police Department for approximately five (5) years and nine (9) months and is currently assigned to midnight patrol with the 47th precinct. He has made approximately two (2) to three (3) arrests for driving while intoxicated. Officer Catanzarita received training from the highway patrol regarding the signs to look for in determining whether a person is under the influence of alcohol, including the smell of alcohol on one's breath, glassy, watery bloodshot eyes, unsteady balance and slurred speech. On October 7, 2018, P.O. Catanzarita was on midnight patrol with Sergeant Roth in a marked police vehicle in the vicinity of Palmer Avenue and Boston Road in the county of the Bronx. Boston Road is a four-lane roadway. Two lanes head northbound and two lanes head southbound. A double yellow line separates the northbound and southbound lanes. A dotted white line separates the two lanes on each side of the yellow line.

At approximately 3:50 A.M. at the intersection of Boston Road and Secor Avenue, P.O. Catanzarita observed a silver 2006 Jeep Liberty, operated by defendant, make a left-hand turn exiting a shopping center into one of the southbound lanes on Boston Road. When the light turned green on Boston Road, Sergeant Roth drove the marked police vehicle two (2) to three (3) car lengths behind defendant's vehicle in one of the southbound lanes on Boston Road for about two (2) to three (3) blocks. During this time, P.O. Catanzarita noticed defendant's vehicle swerving within its lane. The officer further observed, two (2) to three (3) times, defendant's driver's side tires crossing over the dotted white line separating the two southbound traffic lanes without signaling.

The officers activated their lights and sirens and stopped defendant's car for violating the Vehicle and Traffic Law infraction of failing to maintain a lane. After parking their police vehicle behind defendant's car, Sergeant Roth approached the driver's side of defendant's vehicle and P.O. Catanzarita approached the passenger's side of defendant's car. Sergeant Roth asked defendant how much he had to drink and defendant did not reply. Sergeant Roth then ordered defendant out of his car and defendant immediately stated that he needed to use the bathroom. Officer Catanzarita told defendant that he was not permitted to do so at that time. At some point during this exchange, approximately three (3) to four (4) minutes after Sergeant Roth and P.O. Catanzarita stopped defendant's vehicle, two (2) additional police officers arrived at the scene and parked their vehicle behind Sergeant Roth's marked police car. Sergeant Roth then directed defendant to the back of his vehicle where Officer Catanzarita and the two (2) additional police officers stood waiting for them. When P.O. Catanzarita was within arm's length of defendant, he smelled an odor of alcohol on defendant's breath and further observed that he had glassy watery eyes, slightly slurred speech and was swaying on his feet. Officer Catanzarita recognized those signs to be indicia of intoxication. Once defendant arrived at the back of his car, Sergeant Roth again asked defendant how much he had to drink and defendant replied, “I had one beer.” P.O. Catanzarita testified that defendant was not under arrest, the officers did not display their weapons and defendant was not threatened or told by the officers that he was not free to leave at the time the statement was made.

Thereafter, Sergeant Roth asked defendant to submit to a portable breath test (hereinafter “PBT”) to determine his blood alcohol content and defendant agreed to take the test. Sergeant Roth placed the PBT device up to defendant's mouth and defendant attempted to submit to the test four (4) times, but each time the test resulted in an insufficient sample. After the fourth failed attempt, defendant asked either to speak to “an attorney” or “my attorney”, (Hearing Tr., pg. 57 lines 20-21). P.O. Catanzarita asked defendant why he required an attorney and defendant stated it was because he was “being harassed,” (Hearing Tr. pg. 61, lines 1-2). Defendant was asked to submit to the PBT once again, and after he did so, a PBT reading of .15 was obtained.

Based upon the result of the PBT and the officers' observations of defendant's physical condition, they concluded that defendant operated his vehicle while under the influence of alcohol and placed him under arrest at 3:56 A.M. After he was placed in handcuffs, defendant asked P.O. Catanzarita whether he was going to “get an attorney” or if he “needed an attorney,” (Hearing Tr. pg. 58, line 23, pg. 59 lines 1-7).

P.O. Catanzarita transported defendant to the 45th precinct where defendant was asked to submit to a chemical breath test at 6:11 A.M. Defendant immediately replied that he would take the test. After several attempts to submit to the test, the Intoxilyzer 9000 machine generated a breath sample of .09 blood alcohol content. Subsequently, upon defendant's consent, several sobriety tests were administered to him including the walk and turn test, the one- legged stand test and the horizontal gaze nystagmus test.

At 6:31 A.M., Officer Catanzarita advised defendant of his Miranda rights and defendant agreed to answer questions related to his arrest. P.O. Catanzarita asked defendant a series of questions and defendant answered, in sum and substance, “I was driving the vehicle. I was going home. I was picking up a friend. I was driving for about two minutes before I was stopped. I was drinking one Guinness beer. I was at Mingles bar. I'm not sure when I started. I'm not sure when I stopped. I did not have any drinks in the last hour before I was stopped. I last ate at approximately 12:00 A.M. to 1:00 A.M.I had spaghetti and fish. I took medication around 7 A.M. to 7:30 A.M. I'm not sick or injured, I don't have any disabilities. I'm not diabetic. I don't have allergies. I had four (4) to five (5) hours of sleep last night. I have slept today, I'm not tired. I did not feel the effects of alcohol or drugs as I was driving. I do not feel that alcohol or drugs affected my driving to the slightest degree. The vehicle does have a mechanical problem with the engine mount. I feel I was driving well. I would go to work or school in my condition at the time of the stop. On a scale of one (1) to ten (10) where zero (0) is totally sober or no impairment at all and ten (10) is falling down drunk or too impaired to function at all, I would rate myself a one (1). I feel I'm the same as when I was first stopped.”

Based upon P.O. Catanzarita's observations of defendant on the scene and at the precinct, the result of defendant's chemical breath test and P.O. Catanzarita's training and experience, he concluded that defendant was intoxicated.

DEFENDANT'S CLAIMS

Defendant claims that there was no legal basis for the police to stop his vehicle because: (1) P.O. Catanzarita's observation of his vehicle's tires crossing over the white dotted line which separated the southbound lanes of traffic on Boston Road was not sufficient to establish probable cause that he committed a traffic violation; (2) P.O. Catanzarita did not provide adequate details of the circumstances surrounding the stop of defendant so that this Court could determine whether defendant committed a traffic infraction; (3) P.O. Catanzarita did not establish “reasonable suspicion” that defendant committed, was committing or about to commit a crime and (4) P.O. Catanzarita did not establish that defendant's driving prompted him to have a concern for public safety because he did not testify that it posed a danger to other drivers or pedestrians.

Additionally, with respect to defendant's statement on the scene that he had “one beer” defendant asserts that it was made when he was subject to custodial interrogation without being advised of his Miranda warnings and thus, the statement should be suppressed.

Defendant further claims that his Breathalyzer chemical test result, the results of the sobriety tests conducted at the 45th precinct and the statements he made to police officers at the stationhouse were obtained in violation of his right to counsel and thus, should be suppressed. Specifically, defendant asserts that his request to speak to an attorney at the scene of the incident was an “unequivocal request” made while he was in custody. Further, defendant argues that his “mention of an attorney” to Officer Catanzarita after he was handcuffed was clearly an extension of his previous invocation of his right to counsel and therefore, the police should have offered him an opportunity to contact an attorney or cease questioning him after his invocation of this right. Additionally, defendant argues that his “unequivocal request” to speak with an attorney at the scene invoked his “qualified right to counsel” with respect to submitting to the PBT and Breathalyzer chemical test.

Finally, with respect to defendant's chemical test results, he claims they were obtained in violation of the “deemed consent” provision of VTL § 1194 and the People failed to demonstrate that he expressly and voluntarily agreed to submit to the test.

Based upon the foregoing, defendant moves to suppress all evidence obtained as a result of his stop including the statements he made at the scene of the arrest and at the 45th precinct. Defendant further moves to suppress all police observations of him, the chemical breath test results from the Intoxilyzer 9000 and the sobriety tests as depicted in the “IDTU” recording as the fruits of an illegal arrest.

THE PEOPLE'S CONTENTIONS

The People contend that the initial stop of defendant's vehicle was lawful since Officer Catanzarita had reasonable cause to believe that defendant violated the Vehicle and Traffic Law. The People assert that after the stop P.O. Catanzarita's observation of defendant's intoxicated condition, as well as the results of the PBT established probable cause to arrest him for driving a motor vehicle while under the influence of alcohol.

Regarding defendant's statement “I had one beer” to police officers on the scene, the People argue that because it was made at a pre-arrest traffic stop when defendant was not in custody and it was in response to investigatory questions, Miranda warnings were not required to be given to defendant at that time. As to defendant's post-arrest statements made at the 45th precinct, the People contend that since Officer Catanzarita gave defendant Miranda warnings and he voluntarily waived such rights, his statements were not illegally obtained. Further, the People assert that even if the Court were to determine that “there was a Miranda violation on the scene,” defendant's subsequent statements at the precinct were sufficiently attenuated since there was a “definite, pronounced break in the interrogation of approximately two and a half hours between his on scene statements and his statements at the precinct,“(Frommer Aff., pg. 12).

Additionally, the People argue that defendants “qualified right to counsel” did not attach to the PBT and further, with respect to the Breathalyzer chemical test, defendant never invoked such right before submitting to it. Finally, the People assert that defendant's Breathalyzer chemical test results obtained at the 45th precinct over two hours after his arrest are admissible since he expressly and voluntarily consented to take the test.

CONCLUSIONS OF LAW

Dunaway Issues

At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of police conduct (see People v. Baldwin, 25 N.Y.2d 66, 302 N.Y.S.2d 571, 250 N.E.2d 62; People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694). The People must present to the Court not only credible evidence but also facts, not mere conclusions or beliefs of their witnesses, to meet their burden (see People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709). In sustaining their burden, the People must demonstrate that the circumstances authorized the officer's behavior. In assessing the scope of intrusion permissible under a given set of circumstances, the New York constitution contemplates weighing the officer's safety and the public interest against the individual's personal liberty (see People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889).

Once the People meet their initial burden, a defendant bears the ultimate burden of demonstrating the illegality of the disputed police conduct (see People v. Berrios, supra). Evidence obtained as a result of an illegal arrest is inadmissible at trial (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081).

The stop of a vehicle is a seizure implicating constitutional limitations, even when the purpose of the stop is limited and the resulting detention is brief (see Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660). The decision to stop a vehicle is reasonable where the police have (1) probable cause to believe that a traffic infraction has occurred (see People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39; People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638); (2) reasonable suspicion that the driver has committed, is committing or is about to commit a crime (see People v. Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218) or (3) a public safety concern prompted by the manner in which the vehicle was being operated by the driver (see People v. Ingle, supra).

With respect to a routine traffic stop of a defendant's vehicle, “the factual basis for [it] is minimal. An actual violation of the Vehicle and Traffic Law need not be detectable. All that is required is that the stop be not the product of mere whim, caprice or idle curiosity. It is enough if the stop is based upon ‘specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant (the) intrusion,’ ” People v. Ingle, supra citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Additionally, there is “no requirement that the violation be substantial. Further, the facts observed by the officer need only support a reasonable suspicion; they need not be of sufficient probative force to support a conviction of the violation,” People v. Hoffman, 135 A.D.2d 299, 525 N.Y.S.2d 376. VTL § 1128(a), Driving on Roadways Laned For Traffic, provides, in pertinent part, that:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply ․ (a) A vehicle shall be driven as nearly as practicable within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

Here, P.O. Catanzarita's observation of defendant's vehicle swerving within his lane coupled with the officer's observation of his driver's side tires crossing over the dotted white line separating the other southbound lane, two (2) to three (3) times, constituted sufficient “specific and articulable facts” which supported a reasonable suspicion that defendant was not driving his vehicle “as nearly as practicable within in a single lane” in violation of Vehicle and Traffic Law section 1128(a); (see People v. Ingle, supra; People v. Ellis, 169 A.D.2d 838, 565 N.Y.S.2d 207; People v. Wohlers, 138 A.D.2d 957, 526 N.Y.S.2d 290; People v. Mathis, 136 A.D.2d 746, 523 N.Y.S.2d 915; People v. Hoffman, supra; People v. Simmons, 58 A.D.2d 524, 395 N.Y.S.2d 188; People v. Hanson, 5 Misc.3d 67, 785 N.Y.S.2d 825). Thus, the stop of defendant's vehicle was valid.

Further, the combination of P.O. Catanzarita's observations of defendant's physical condition indicating indicia of intoxication, defendant's admission that he had consumed alcohol and the subsequent .15 result of his PBT could have led a reasonable officer in P.O. Cantanzarita's position to conclude that defendant had operated a motor vehicle while under the influence of alcohol. Thus, P.O. Catanzarita clearly had the requisite probable cause to arrest defendant for the crime of Driving While Intoxicated (see People v. Johnson, 140 A.D.3d 978, 34 N.Y.S.3d 120; People v. Tieman, 132 A.D.3d 703, 17 N.Y.S.3d 743; People v. Kowalski, 291 A.D.2d 669, 738 N.Y.S.2d 427).

Based upon the foregoing, defendant's motion to suppress all evidence obtained as a result of an unlawful arrest is denied (see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Ingle, supra; People v. Wesley, 151 A.D.3d 1270, 56 N.Y.S.3d 639; People v. Kucmierowski, 103 A.D.3d 755, 959 N.Y.S.2d 708; People v. Curkendall, 12 A.D.3d 710, 783 N.Y.S.2d 707).

Huntley Issues

At a Huntley hearing, the People have the burden of establishing, beyond a reasonable doubt, that statements made by a defendant to law enforcement authorities were made voluntarily and not the product of coercion, promises or false statements which create a substantial risk of false incrimination or undue pressure which undermines a person's ability to make a free choice (see CPL § 60.45; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; People v. Chase, 85 N.Y.2d 493, 626 N.Y.S.2d 721, 650 N.E.2d 379; People v. Yarter, 41 N.Y.2d 830, 393 N.Y.S.2d 393, 361 N.E.2d 1041). Generally, the test for determining the voluntariness of a statement is the “totality of the circumstances” standard (see United States v. Bye, 919 F.2d 6; People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318). Among the circumstances to be weighed are interrogation techniques such as physical abuse, psychological pressure, food or sleep deprivation or promises of immunity or payment (see Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; People v. Dunbar, 53 N.Y.2d 868, 440 N.Y.S.2d 613, 423 N.E.2d 36).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 the Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Both the elements of police “custody” and police “interrogation” must be present before law enforcement officials are constitutionally obligated to provide the procedural safeguards imposed upon them by Miranda (see People v. Huffman, 41 N.Y.2d 29, 390 N.Y.S.2d 843, 359 N.E.2d 353).

“In deciding whether a defendant was in custody ․ the subjective beliefs of defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position,” People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 (see People v. Rodney P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255; People v. DeJesus, 32 A.D.3d 753, 821 N.Y.S.2d 551). In making such assessment, the court must again consider the “totality of the circumstances,” People v. Centano, 76 N.Y.2d 837, 560 N.Y.S.2d 121, 559 N.E.2d 1280.

With respect to “interrogation” a person is subject to it when he is confronted with “express questioning or its functional equivalent,” Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297. The “functional equivalent” of express questioning is “words or actions on the part of the police ․ that the police should know are reasonably likely to elicit an incriminating response ․ “ Id. The Court of Appeals has similarly held that “[w]hat constitutes ‘interrogation' of a suspect ․ is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response,” People v. Ferro, 63 N.Y.2d 316, 482 N.Y.S.2d 237, 472 N.E.2d 13. Statements made by a suspect at a preliminary stage of an investigation in response to a law enforcement agency's general inquiry are not usually considered the product of interrogation (see People v. Johnson, 59 N.Y.2d 1014, 466 N.Y.S.2d 957, 453 N.E.2d 1246; People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958; People v. Huffman, supra).

 Defendant's Statement Made at the Scene of the Incident

In the instant case, with respect to the “custody” aspect of the Miranda analysis, it is well-settled that “a temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda,” People v. Brown, 107 A.D.3d 1305, 968 N.Y.S.2d 224 quoting People v. Mathis, 136 A.D.2d 746, 523 N.Y.S.2d 915 (see Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317; People v. Alls, 83 N.Y.2d 94, 608 N.Y.S.2d 139, 629 N.E.2d 1018). Thus, P.O. Catanzarita's brief pre-arrest roadside detention of defendant did not constitute “custody” for Miranda purposes (see People v. Williams, 81 A.D.3d 993, 917 N.Y.S.2d 278; People v. Mason, 157 A.D.2d 859, 550 N.Y.S.2d 432). Further, both Sergeant Roth and P.O. Catanzarita's observation of defendant's physical condition, indicating the indicia of alcohol consumption, “justified detaining him for the limited purpose of investigating whether he was operating his motor vehicle while under the influence of alcohol,” People v. Hasenflue, 252 A.D.2d 829, 675 N.Y.S.2d 464 [see People v. Williams, supra; People v. Parris, 26 A.D.3d 393, 809 N.Y.S.2d 176; People v. Peterson, 22 A.D.3d 770, 804 N.Y.S.2d 375; People v. Myers, 1 A.D.3d 382, 766 N.Y.S.2d 581; People v. Meissler, 305 A.D.2d 724, 759 N.Y.S.2d 255; People v. Mason, 157 A.D.2d 859, 550 N.Y.S.2d 432; People v. O'Reilly, 16 Misc.3d 775, 842 N.Y.S.2d 292; People v. Mackenzie, 9 Misc.3d 129(A), 2005 WL 2358350].

Regarding the “interrogation” prong of the Miranda analysis, insofar as Sergeant Roth's question to defendant: “Have you been drinking?” occurred at the preliminary stage of the investigation, it cannot be said that defendant was subject to an “interrogation” (see Berkemer v. McCarty, supra; People v. Bennett, 70 N.Y.2d 891, 524 N.Y.S.2d 378, 519 N.E.2d 289; People v. Johnson, supra; People v. Chestnut, supra; People v. Huffman, supra; People v. McGreal, 190 A.D.2d 869, 593 N.Y.S.2d 868; People v. Mason, supra; People v. Fiorello, 140 A.D.2d 708, 529 N.Y.S.2d 27).

Therefore, inasmuch as defendant's statement “I had one beer” was not the product of “custodial interrogation” the officers were not obligated to administer Miranda warnings to him.

Additionally, the People proved beyond a reasonable doubt that defendant's statement made at the scene was voluntary since defendant was not handcuffed during his brief questioning, the officers did not have their weapons drawn and no evidence was adduced that threats or promises were made by the police to defendant to force him to make any statements. Further, it is not alleged that defendant suffered any mental or physical impairment which would render his statements to Sergeant Roth involuntary (see People v. Huntley, supra; People v. Chase, supra; People v. Yarter, supra).

Accordingly, defendant's motion to suppress his statement “I had one beer” made at the scene is denied.

 Defendant's Post- Miranda Statements at the Precinct

As to defendant's claim that his post-Miranda statements should be suppressed because they were obtained in violation of his right to counsel under the New York State constitution, it is without merit.

Under the United States constitution the right to counsel may arise under the Fifth or Sixth Amendments (see U.S. Const. 5th, 6th, 14th Amends.) The trigger for the Sixth Amendment right to counsel is the initiation of adversarial judicial proceedings such as a formal charge, preliminary hearing, indictment, information or arraignment (see U.S. Const. 6th Amend). Additionally, the Fifth Amendment's privilege against self-incrimination generates a right to counsel when a suspect is subject to custodial interrogation by law enforcement officials (see U.S. Const. Fifth Amend; Miranda v. Arizona, supra).

In New York, “the right to counsel is grounded on this State's constitutional and statutory guarantees of the privilege against self incrimination, the right to the assistance of counsel and due process of law,” People v. Davis, supra; (see N.Y. Const. art. I § 6). The New York state right to counsel “extends well beyond the right to counsel afforded by the Sixth Amendment of the United States Constitution and other State constitutions,” Id. at 521, 554 N.Y.S.2d 460, 553 N.E.2d 1008. In New York, the right to counsel attaches indelibly in two situations: (1) when formal judicial proceedings begin, whether or not the defendant has actually retained or requested counsel and (2) when an uncharged individual has actually retained a lawyer in the matter at issue, or while in custody, has requested a lawyer in that matter, (see People v. Ramos, 99 N.Y.2d 27, 750 N.Y.S.2d 821, 780 N.E.2d 506 [citations omitted] ). Once a person in the aforementioned circumstances invokes his or her right to counsel, he or she cannot subsequently waive the right to remain silent and to have the assistance of counsel unless an attorney is present at the time of the waiver (see People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360; People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894).

Additionally, under New York State law, a suspect may validly invoke the right to counsel in a non-custodial setting. However, it is axiomatic that this non-custodial right to counsel only attaches in connection with police questioning (see People v. Davis, supra (a suspect validly invoked her right to counsel during police questioning in a non-custodial setting at her home); People v. Hart, 191 A.D.2d 991, 594 N.Y.S.2d 942 (defendant's non-custodial request for counsel made at the scene of a traffic accident was not valid because he did not unequivocally request an attorney during police questioning); People v. Feneque, 133 A.D.2d 646, 519 N.Y.S.2d 827 (defendant's equivocal request for an attorney during police interrogation in a non-custodial setting was not valid); People v. Ward, 241 A.D.2d 767, 661 N.Y.S.2d 303 (defendant's non-custodial request for an attorney during a police interview was valid but he subsequently waived such right); People v. Washington, 35 Misc 3d 235(A) (defendant's invocation of the right to counsel during police questioning in a non-custodial setting was valid but the defendant then waived such right); (see also People v. Hartley, 65 N.Y.2d 703, 492 N.Y.S.2d 1, 481 N.E.2d 541; People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501; People v. Casey, 37 A.D.3d 1113, 829 N.Y.S.2d 309).

Further, it is well-settled that a suspect's request for counsel, in a non-custodial setting is only valid if it is “unequivocal”, “ which ‘is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant,’ ” see People v. Higgins, 124 A.D.3d 929, 1 N.Y.S.3d 424 citing People v. Glover, supra. “Generally, remarks that are subject to numerous objective interpretations or a defendant's mere ‘suggestion that counsel might be desired ․ will not suffice’ ” People v. Higgins, supra quoting People v. Mitchell, 2 N.Y.3d 272, 778 N.Y.S.2d 427, 810 N.E.2d 879. Where a defendant unequivocally expresses an intention to retain a lawyer, the police may not question the defendant even if the questioning is in a noncustodial setting, (see People v. Rowell, 59 N.Y.2d 727, 463 N.Y.S.2d 426, 450 N.E.2d 232).

Additionally, unlike a defendant who is in custody during police interrogation and requests an attorney, a defendant who asks for a lawyer in a non-custodial setting may subsequently waive or withdraw that request before further interrogations commence (see People v. Davis, supra; People v. Ward, supra; People v. Glover, 208 A.D.2d 475, 617 N.Y.S.2d 643).

 Defendant's Request for “An Attorney” or “My Attorney”

Defendant's non-custodial request for “an attorney” or “my attorney” was not just a “mere suggestion that counsel might be desired,” (see People v. Higgins, supra). Rather, when considering “the circumstances surrounding the request, including the defendant's demeanor, manner of expression and particular words found to have been used by defendant (see People v. Higgins, supra), it was a clear indication by defendant that he wished to consult with an attorney. This is particularly so in light of P.O. Catanzarita's testimony that defendant's request for counsel occurred in conjunction with his complaint that he was “being harassed” (Hearing Tr., pg. 61 lines 1-2). Thus, defendant's request for “an attorney” or “my attorney” was sufficiently “unequivocal” (see People v. Esposito, 68 N.Y.2d 961, 510 N.Y.S.2d 542, 503 N.E.2d 98; People v. Harris, 93 A.D.3d 58, 936 N.Y.S.2d 233).

Nevertheless, unlike the cases cited above in connection with the right to counsel in a non-custodial setting (see People v. Davis, supra; People v. Hartley, supra; People v. Skinner, supra; People v. Casey, supra; People v. Ward, supra; People v. Hart, supra; People v. Feneque, supra; People v. Washington, supra), in the instant matter, defendant's request was not made during police questioning. Rather, it was made during the administration of the PBT.

This distinction is critical inasmuch as the value of legal assistance relates principally to protecting a suspect from self-incrimination when faced with police questioning (see People v. Davis, supra; Carmody Wait § 184: 7). Thus, it cannot be said that in the absence of police interrogation defendant's request constituted a valid invocation of his right to counsel such that it negated his subsequent waiver of his Miranda rights at the 45th precinct. As such, defendant's motion to suppress his statements made at the stationhouse on this ground is denied.

Moreover, the People satisfied their burden in proving beyond a reasonable doubt that defendant's statements at the precinct were knowingly, voluntarily and intelligently made. The IDTU video shows P.O. Catanzarita administering proper Miranda warnings to defendant and thereafter, defendant indicated that he understood each right (see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; People v. Williams, supra).1

 Defendant's Sobriety Test Results at the 45th Precinct

With respect to defendant's motion to suppress his sobriety test results at the 45th precinct on the ground that his right to counsel was violated, it is without merit. This Court has already determined that defendant did not validly invoke such right. As such, his motion is denied.

 Defendant's Chemical Test Results and the Limited Right to Counsel

With respect to defendant's chemical test results obtained at the 45th precinct, “it is well settled that a defendant who has been arrested for driving while intoxicated but not yet formally charged in court, generally has a limited right to consult with an attorney before deciding whether to consent to a chemical test if he or she requests assistance of counsel and no danger of delay in administration of the test is posed,” People v. Borst, 49 Misc.3d 63, 20 N.Y.S.3d 838 citing People v. Washington, 23 N.Y.3d 228, 989 N.Y.S.2d 670, 12 N.E.3d 1099; People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650; People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351; [see also VTL § 1194(2)(b)]. While an individual has the right to consult with an attorney in deciding whether to submit to a chemical test there is no absolute right to do so and “it is only a qualified right to counsel, not a constitutional one,” People v. Curkendall, 12 A.D.3d 710, 783 N.Y.S.2d 707 (see also People v. Shaw, supra). To invoke this limited right, a suspect must make “a specific request for an attorney vis-a-vis this decision,” Id (see also People v. Bradway, 285 A.D.2d 831, 728 N.Y.S.2d 286.

Here, it is clear that when defendant was asked to submit to the Breathalyzer chemical test, he did not make any request to consult with an attorney. Indeed, the IDTU video (People's Exhibit No.1) indicates that defendant unequivocally agreed to submit to it. Inasmuch as defendant never invoked his qualified right to counsel at the 45th precinct, there is no legal basis to suppress the results of his Breathalyzer chemical test on this ground (see People v. Keener, 138 A.D.3d 1162, 30 N.Y.S.3d 345).2

Atkins Issues

VTL § 1194 sets forth the authority of police officers to test a suspect's blood or breath to determine the alcoholic content in his or her blood. In New York state, a person is “deemed to have given consent to a chemical test” when three requirements are met: (1) the test is administered “by or at the direction of a police officer; (2) the officer has reasonable grounds to believe a suspect has been operating their motor vehicle in violation of VTL § 1192 and (3) the chemical test is conducted “within two hours after such person has been placed under arrest for any such violation,” VTL § 1194(2)(a). “The Court of Appeals has held that when the requisite reasonable grounds exist, even an unconscious person is ‘deemed to have given consent’ to a chemical test so long as the test is conducted within the two hour limit,” People v. D.R., 23 Misc.3d 605, 872 N.Y.S.2d 911 quoting People v. Kates, 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852. Given the requirements of VTL § 1194(2)(a)(1), when more than two hours have passed, a suspect is no longer deemed to have given consent to the chemical test (see VTL § 1194(2)(a); People v. Odum, 31 N.Y.3d 344, 78 N.Y.S.3d 252, 102 N.E.3d 1034; People v. Finnegan, 85 N.Y.2d 53, 623 N.Y.S.2d 546, 647 N.E.2d 758).

However, a chemical test administered outside of this two-hour statutory window may still be admissible if a suspect voluntarily consents to take the test because “the two hour time limitation ․ has no application [when] defendant has expressly and voluntarily consented to the administration of the test,” People v. Atkins, 85 N.Y.2d 1007, 630 N.Y.S.2d 965, 654 N.E.2d 1213. The issue of whether defendant's consent to the voluntary is a mixed question of law and fact, see People v. Odum, supra citing People v. Mercado, 25 N.Y.3d 936, 5 N.Y.S.3d 741, 28 N.E.3d 1181. “A simple request to submit to a breathlyzer examination without more can result in a voluntary consent as long as there is no express or implied coercion by law enforcement ․” People v. Capraella, supra. The People have the burden of demonstrating such voluntary consent by “clear and positive evidence,” People v. Capraella, 165 Misc.2d 639, 629 N.Y.S.2d 965.

In the instant matter, since the chemical test of defendant's breath was performed at 6:11 A.M, which was approximately two hours and fifteen minutes after his arrest at 3:56 A.M., the test results were obtained outside of the two hour window and as such, they are not admissible under the “deemed consent” provision of VTL § 1194(2)(a)(1) (see People v. Odum, supra). Notwithstanding the above, the People have demonstrated by “clear and positive” evidence that defendant expressly and voluntarily consented to take the chemical test (see People v. Atkins, supra; People v. D.R., supra; People v. Capraella, supra). The IDTU video recording (People's Exhibit #1), which depicts the administration of defendant's chemical test, shows the IDTU technician asking defendant to submit to the chemical test and defendant immediately and unequivocally consenting to take it. Further, there was no evidence to suggest that the police officers engaged in any form of implicit or overt coercion in securing defendant's consent in submitting to the chemical test (see People v. Odum, supra; People v. Atkins, supra; People v. Capraella, supra).

Based on all of the foregoing, defendant's motion to suppress his Breathalyzer chemical test result is denied.

Order entered accordingly.

This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for defendant and the District attorney.

FOOTNOTES

1.   As to defendant's second reference to an attorney during his arrest for DWI, it is clear that defendant, who was in handcuffs and being placed in the back of P.O. Catanzarita's police vehicle was in “custody” and thus at that point his indelible right to counsel attached (see People v. Cunningham, supra). However, unlike his initial request for an attorney which was quite clear, his subsequent question “Do I need a lawyer” was not an unequivocal request for counsel (see People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861; People v. Wilson, 93 A.D.3d 483, 939 N.Y.S.2d 463; People v. Vaughan, 48 A.D.3d 1069, 850 N.Y.S.2d 735; People v. Casey, supra; People v. D'Eredita, 302 A.D.2d 925, 755 N.Y.S.2d 673; People v. Diaz, 161 A.D.2d 789, 556 N.Y.S.2d 128). Rather, it was a query to police officers about a potential need for counsel.

2.   As to the portable breath test (“PBT”), the “qualified right to counsel” applies only when a defendant is asked to submit to a chemical test of his blood or breath or saliva for the presence of alcohol, (see People v. Gursey, supra). The PBT by definition is a preliminary “breath test” of a DWI suspect's breath for the presence of alcohol, [see VTL § 1194)(1)(b) ]. “By contrast, the phrase ‘chemical test’ is the term used to describe a test of the alcohol and/or drug content of a DWI suspect's blood using an instrument other than a PBT ․ such as the Breathalyzer, DataMaster, Intoxilyzer, Alcotest, etc ․, Peter Gerstenzang, Eric H. Sills, Handling the DWI Case in New York § 7:1. Indeed, the VTL 1194 statute specifically distinguishes between a “field test” i.e. breath test [VTL § 1194(1)(b)] and a chemical test i.e. Intoxilyzer [VTL § 1194(2).] As such, it cannot be said that defendant possessed a limited right to counsel before he decided to take the portable breath test (PBT) at the scene of the incident.

Jeffrey Rosenblueth, J.