This decision has been referenced in a table in the New York Supplement.
Joel Schmidt, Legal Aid Society, for the Defendant.
Assistant District Attorney Sagar Chadha, for the People.
GIA L. MORRIS, J.
On December 12, 2011 a misdemeanor information was filed against the defendant, Volodymyr Dzvonyk, charging him with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, two counts of Driving While Intoxicated, and one count of Aggravated Driving While Intoxicated (VTL §§ 1992.2, 1192.3 and 1192 .2(2)(a)). The allegation is that on December 12, 2011, the defendant was driving in an intoxicated condition with a blood alcohol content in excess of .18.
The defendant has moved for an order suppressing the results of the chemical test analysis on the grounds that it was taken in violation of his state and federal constitutional rights. More specifically, the defendant contends that the results of the chemical test should not be admitted at his trial since the defendant's consent to the administration of the test was not voluntarily made since he was not given the instructions for the breath test in his native language. The defendant also claims that the failure of the police to provide a Russian interpreter during the breath test violated his rights to due process and equal protection under the Constitution, since he did not understand his ability to refuse to submit to such testing. A hearing was ordered to determine the voluntariness of the defendant's consent.
On May 29, 2013, this Court conducted a hearing with respect to this issue. At that hearing, Police Officer Justin Currao testified on behalf of the People. I find his testimony credible and make the following Findings of Facts and Conclusions of Law.
FINDINGS OF FACT
Officer Currao has been a member of the New York City Police Department for approximately 7 years and is currently assigned to the 113th Precinct (H 9) . On December 12, 2011 at approximately 3:30 a.m., Police Officer Justin Currao responded to the scene of a motor vehicle accident and observed the defendant, Volodymyr Dzvonyk, standing outside a 2003 Nissan Murano which had front end damage (H 10). Officer Currao spoke with an eyewitness who informed him that she observed the defendant driving the vehicle and that he had struck a car (H 12). Officer Currao spoke with the defendant in English and asked the defendant for his registration and insurance (H 13). The defendant complied by entering the car and obtaining the requested materials (H 13-14). At that time, Officer Currao noticed that the defendant had bloodshot eyes, slurred speech, was unsteady on his feet, and had a strong odor of alcohol on his breath (H 13, 27). After making these observations, Officer Currao arrested the defendant at approximately 04:15 a.m. and transported the defendant to the 112th precinct for processing (H 15).
According to the testimony at the hearing, once inside the 112 Precinct, the defendant was taken to the Intoxicated Driver Testing Unit (H 15). During the hearing, the People played the video recording of the administration of this test, which was admitted into evidence as People's Exhibit 1 (H 18). On the video, the Court was able to observe the officer request in English that the defendant take a breath test, and while initially showing confusion or hesitation, the video shows that the defendant responded that he would take the test. This question was followed by a question asking if the defendant understood the officer, to which the defendant nodded his head in an up and down position, indicating he understood the officer. The video further shows that, while it takes several attempts to obtain a breath sample, a sufficient sample was provided and the results of the chemical test indicated that the defendant's blood alcohol content was .233. Of note, the video recording does not show the officer threatening the defendant, or forcing him (either physically or verbally) to take the test. The breath test was administered at approximately 05:17 a.m. (H 17).
CONCLUSIONS OF LAW
At a suppression hearing, the People have the initial burden of presenting evidence of probable, or reasonable cause to show the legality of police conduct. People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884 (1971); People v. Spann, 82 A.D.3d 1013, 918 N.Y.S.2d 588 (2d Dept 2011); People v. Blinker, 80 A.D.3d 619, 915 N.Y.S.2d 593 (2d Dept 2011). Once this burden is met, it is the defendant's burden to prove the illegality of the police conduct. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884; Spann, 82 A.D.3d 1013, 918 N.Y.S.2d 588.
A. Probable Cause for the Arrest of the Defendant
An officer is authorized to make an arrest for " [a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise." C.P.L § 140.10; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375 (1976); People v.. McIntosh, 96 N.Y.2d 521, 730 N.Y.S.2d 265 (2001). In the instant case, Officer Currao testified that he arrived at the scene of a vehicle accident, was informed that the defendant had been driving by an eyewitness, and further observed the defendant to have the common law signs of intoxication, to wit, blood shot eyes, slurred speech, was unsteady on his feet, and had the odor of alcohol on his breath (H 13). These facts, if proved true, would constitute the crime of Operating a Motor Vehicle while Under the Influence of Alcohol or Drugs, an ...