Talkin & Muccigrosso, New York City (Sanford Talkin of counsel), for defendant.
Richard A. Brown, District Attorney of Queens
County (Suzanne Middleton and Michael Wiesenfeld of counsel), for plaintiff.
Charles J. Markey, J.
The defendant Andrey Litarov, by a misdemeanor information dated July 25, 2000, is accused of operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law § 1192 (3).
The defendant moved to suppress his refusal to take a breathalyzer test. (See, Vehicle and Traffic Law § 1194.) A Judicial Hearing Officer (J.H .O .) of this Court, Honorable Joseph Cerbone, held a hearing on April 30 and May 4, 2001. Following the hearing, J.H .O . Cerbone made findings of fact and conclusions of law and recommended to this Court that the defendant's motion to suppress be denied.
Findings of Fact
The salient facts are not in dispute. The J.H .O . found the testimony of the police witnesses credible.
On July 13, 2000, at about 3:42 A.M ., police observed the defendant sitting in the driver's seat of a 1988 Audi, with the motor running, at 92nd Street and Roosevelt Avenue in Queens County. The defendant's eyes were bloodshot and watery, his complexion was flush, and his speech was slurred. Police Officer E. Stewart, at the 112th Police Precinct, repeatedly requested the defendant to take a breathalyzer test. Each time, the defendant declined and stated that he wanted " his Russian rep." The J.H .O . correctly observed that the defendant's request was to consult or see a Russian consular official.
During the hearing, the People conceded that they could not locate the videotape evidencing defendant's refusal to take a breathalyzer test. Defense counsel asked that several sanctions be applied against the People for the loss of the videotape.
This Court adopts the J.H .O .'s ...