This decision has been referenced in a table in the New York Supplement.
Robert T. Johnson, District Attorney, Bronx County, by Meghan A. Horton, Esq., Assistant District Attorney, for the People.
Daniel A. McGuinness, Esq., Law Offices of Adam D. Perlmutter, PC, for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with one count of Operating a Motor Vehicle While Under the Influence of Alcohol (VTL Sec. 1192(3)), an Unclassified Misdemeanor; and one count of Operating a Motor Vehicle While Under the Influence of Alcohol (VTL Sec. 1192(1)), a traffic infraction.
By order of the Court, dated July 9, 2010, a hearing was held before this Court in this matter on March 19, 2013 and March 21, 2013, pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S Ct 1684, 6 L.Ed.2d 1081 (1961), People v. Dunaway, 442 U.S. 200, 99 S Ct 2248, 60 L Ed2d 824 (1979), People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), and People v. Johnson, 134 Misc.2d 474, 511 N.Y.S.2d 773 (Crim Ct, Qns Cty, 1987).
At the hearing, the People offered the testimony of one witness, Police Officer Fidel Hernandez. The Defense offered no witnesses.
Based upon the testimonial evidence offered by the People, in its oral decision given at the conclusion of the hearing, this Court found the Officer to have been a credible witness. See, Minutes dated March 21, 2013, p 77. The Court also found that the officer had probable cause for the arrest of the Defendant (See, Minutes dated March 21, 2013, p 77), and found a statement made by Defendant to be admissible. See, Minutes dated March 21, 2013, p 79.
The Court suppressed a second statement made by Defendant, which had been prompted by Officer Hernandez' recovery of a beer can, and a photograph of the beer can. See, Minutes dated March 21, 2013, p 79-80. The Court reasoned that since the original beer can was not preserved, the use of the statement and photograph at trial would be " prejudicial to the defense." See, Minutes dated March 21, 2013, p 80.
The People now move to reargue the suppression of the second statement and photograph. In a Cross Motion, Defendant seeks to reargue the finding of probable cause for his arrest, and seeks dismissal of the complaint, alleging that the People have failed to establish that Defendant was operating a motor vehicle at the time of the offense.
The Court has reviewed the minutes of the hearing, the Court file, the People's undated Motion to Reargue, Defendant's Cross Motion dated May 6, 2013, and the People's Affirmation in Opposition to Defendant's Cross Motion dated May 16, 2013.
For the reasons stated below, both motions to reargue are denied. The Court finds that there was sufficient evidence of Defendant's operation of a motor vehicle to provide the police with probable cause for his arrest. The Court also reaffirms its suppression of the second statement and photograph.
STATEMENT OF THE FACTS
The Court makes the following specific ...