This decision has been referenced in a table in the New York Supplement.
JULIO RODRIGUEZ, J.
Defendant is charged with Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree in violation of Penal Law Section 270.25, Reckless Driving in violation of Vehicle and Traffic Law Section 1212, and Operating a Motor Vehicle While Under the Influence of Alcohol in violation of Vehicle and Traffic Law Sections 1192(3), 1192(2), and 1192(1). The defendant moved to suppress statements and all " fruits of the poisonous tree" obtained from his arrest, including evidence of the Breathalyzer examination, the results of the test, the videotape of the examination and all observations of the defendant, including identification of the defendant as the operator of a motor vehicle. Additionally, the defendant moved to suppress the Breathalyzer results because the breath test was not administered within the requisite two hours of arrest. The defendant was granted a Johnson/Huntley/Dunaway hearing.
The pre-trial suppression hearing was conducted before the Honorable David Stadtmauer, Judicial Hearing Officer (" JHO Stadtmauer" ), on December 17 and 18, 2012. The matter was then forwarded to me for decision and order on the hearing.
I reviewed the entire record including the hearing transcript, the IDTU tape, JHO Stadtmauer's recommended findings of fact and conclusions of law, and the post-hearing memorandums of law submitted by the parties. The findings of fact and conclusions of law recommended by JHO Stadtmauer are hereby adopted, as modified. For the reasons set forth below, defendant's motion is denied.
The People called one witness, Police Officer Sergio Auza (" Officer Auza" ) assigned to the 42nd Precinct. The Court finds Officer Auza credible and credits his testimony. The defendant did not call any witnesses.
Findings of Fact
Officer Auza has been a police officer for six years. See Tr. of Dec. 18, 2012 at 4. On August 27, 2010, at approximately 2:40 a.m., Officer Auza was on patrol, in uniform in a marked car. Id. at 5-6. He was on East 169th Street near Boston Road, in Bronx County, waiting for the traffic light to turn green. Id. at 7. When the traffic light turned green, the car that was directly in front of Officer Auza started to go through the intersection but stopped abruptly when a white van traveling on Boston Road went through the intersection. Id. Officer Auza turned on his turret lights and attempted to stop the white van. Id. at 8. After making several turns and going through approximately five steady red lights, a stop sign, and nearly striking a pedestrian who was forced to jump out of the van's path at East 168th Street and Franklin, the van eventually stopped on Boston Road between East 168th and East 167th Streets. Id. at 8-9.
Officer Auza approached the driver's side and ordered the driver to step out of the van. Id. at 10-11. The defendant opened the driver's door and exited the van. Id. at 11. Officer Auza observed that the defendant was unsteady on his feet and that his pants were off of his waist and around his ankles. Id. at 11-12. As the officer got closer he noticed that the defendant had glassy eyes and smelled of alcohol. Id. at 12. Officer Auza instructed the defendant to come towards him. Id. The defendant asked why he was being arrested. Id. Officer Auza arrested the defendant, at approximately 2:44 a.m., and took him to the 45th Precinct to conduct a Breathalyzer examination. Id. at 14. The officer did not perform any field sobriety tests.
At the 45th Precinct, Officer Jarvis from Highway One conducted a Breathalyzer examination. Id. at 14. The procedure was videotaped, and the videotape was admitted into evidence at the hearing. Id. at 16. The procedure lasted approximately 29 minutes and 38 seconds. See People's Ex. 2. The videotape shows the defendant speaking incessantly for nearly thirty (30) minutes, often raising his voice and cursing. Throughout the procedure, the defendant persistently and repeatedly asked why he was arrested and why he was not administered a field sobriety test at the location of his " detainment" .
At approximately 3:50 a.m., the defendant agreed to take the chemical breath test and provided a breath sample. The test results revealed defendant to have a .157 percent blood alcohol content.
After conducting the test, Officer Auza escorted the defendant to the 42nd Precinct for processing. En route to the 42nd Precinct, the defendant, without being questioned, said in sum and substance that he could not have been drunk because he only had two shots and a beer two hours ago. See Tr. of Dec. 18, 2012 at 21.
CONCLUSIONS OF LAW
On the Mapp/Dunaway/Johnson portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police officers acted lawfully, and defendant had the burden of proving by a preponderance of the evidence that the police officers acted illegally. See People v. Chipp,75 N.Y.2d 327, 335 (1990); People v. DiStefano, 38 N.Y.2d 640, 652 (1976). As to the Huntley hearing, the People had the burden of proving ...