This case is not published in a printed volume and its disposition appears in a table in the reporter.
Joel M. Goldberg, J.
By an Omnibus motion, dated May 16, 2007, the defendant, who is charged with Vehicular Manslaughter in the Second Degree, Operating a Motor Vehicle Under the Influence of Alcohol, and related charges, moved to suppress police-administered Intoxilyzer results, contending that the test was given more than two hours after the defendant's arrest and that the defendant did not voluntarily consent to take it. See CPL 710 .20 (5). Although the blood alcohol reading was .046 percent which would be prima facie evidence that the defendant was neither driving while intoxicated nor impaired (VTL 1195  [a]), it is the People's intention to show by "retrograde extrapolation evidence" that the defendant's blood alcohol content at the time he was driving was .106 percent.
The People opposed the motion to suppress in an undated, unsigned response filed with the Court on June 19, 2007.
The defendant filed a reply affirmation dated July 5, 2007.
A hearing was held on this motion on October 15 and October 23, 2007. The hearing also included the defendant's motion to suppress his statements to the police. At the conclusion of the hearing, the defendant withdrew his request to suppress the statements.
Following the hearing, the parties submitted memoranda, each dated October 30, 2007.
On November 19, 2007, the Court orally denied the motion to suppress the Intoxilyzer results. This written decision amplifies the Court's oral decision.
THE HEARING - FINDINGS OF FACT
The People called Police Officer Andrew Gilsenan, retired Police Officer Joseph Argento, and Detective Michael O'Conner. The defense called Police Officer Scott Lothrop and Bryon Mankuso. The defendant also testified. To the extent indicated, I find all the witnesses to be credible.
On March 13, 2005, at approximately 3:38 a.m., Police Officer Andrew Gilsenan of the Police Department's Highway Two Unit received a police radio communication directing him to respond to the scene of a collision on the westbound Belt Parkway near Bay Eighth Street in Brooklyn. Officer Gilsenan arrived at the location between 3:40 and 4:00 a.m. where he initially observed a silver Nissan Altima with substantial damage. After stopping near the Nissan, he observed a second vehicle, identified as a red Chevrolet Suburban, approximately 1000 feet to the west where it had gone through the fence of the Fort Hamilton Army Base. Two ambulances and a number of fire trucks were already at the scene.
Officer Gilsenan went to one of the ambulances and asked the three people being treated if they had been involved in the accident, what car they had been in, and who had been driving. Officer Gilsenan learned all three occupants of the ambulance had been in the Nissan at the time of the collision and that the defendant, identified as Ronald Marietta, had been driving. The other two individuals in the ambulance were Bryon Mankuso and Joseph Pullio who had been passengers in the defendant's car.
Officer Gilsenan then approached the red Suburban where he observed an unconscious individual on the ground being attended to by EMS.
Officer Gilsenan returned to the ambulance and spoke with the defendant who stated that he had been traveling eastbound on the Belt Parkway when he was cut off and did not remember exactly what happened after that. The defendant said he had been at Club Legacy and drank one Long Island Iced Tea prior to the collision.
In addition to Officer Gilsenan, Police Officer Scott Lothrop, also of Highway Two, responded to the scene. He arrived at approximately 3:52 a.m. It is not clear from the record whether he arrived before or after Officer Gilsenan, but Officer Gilsenan was the officer in charge of the scene. Officer Lothrop learned that there was one fatality at the scene, and a second individual, described only as "a female," who had injuries.
Officer Lothrop administered a portable breath test known as an Alco-Sensor to each of the three men in the ambulance including the defendant. The defendant was advised that the test was being administered because there was a fatality and was not told he could refuse the test. The defendant's Alco-Sensor was administered at 4:15 a.m. and resulted in a reading of .062 percent blood alcohol content. Mr. Mankuso and Mr. Pullio each registered a reading of zero. Officer Gilsenan was not present when Officer Lothrop spoke to the defendant or administered the tests but was told of the result.
Both officers independently observed the defendant to have bloodshot, watery eyes and each noticed the slight smell of alcohol when they were speaking with him in the ambulance. Although Officer Gilsenan believed there was probable cause to arrest the defendant, the defendant was not handcuffed or informed that he was being arrested. Officer Gilsenan explained that his intention was to document the scene not to arrest anyone at that time.
Instead, the defendant, along with Mr. Mankuso and Mr. Pullio, were taken in the ambulance to Lutheran Hospital. According to Officer Gilsenan, the defendant was taken to the hospital for examination based on the defendant's loss of consciousness, his not remembering what happened, and his use of alcohol. No police officers traveled with them inside the ambulance. Officer ...