July 15, 2013
The PEOPLE of the State of New York,
Alex CAMACHO, Defendant. No. 2010BX012946.
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 findings of fact: 
Officer Fidel Hernandez testified that he is assigned to the Bronx Task Force. See, Minutes dated March 19, 2013, p 6. He has been a member of the New York City Police Department for eleven years, and has made " over two hundred" arrests for driving while intoxicated offenses in his career. See, Minutes dated March 19, 2013, p 6-7.
On February 28, 2010, the officer was working in uniform, with another officer, on a " marked radio motor patrol." See, Minutes dated March 19, 2013, p 8. At approximately 4 AM, while " traveling southbound on Williamsbridge Road ... I observed a vehicle blocking the entrance way to the Citibank." See, Minutes dated March 19, 2013, p 9-10. As he passed, Officer Hernandez noticed that " defendant's head was resting against the window, his vehicle lights were on, the vehicle was on." See, Minutes dated March 19, 2013, p 10.
The officer testified that upon his approach of the vehicle, the keys were in the ignition, and the engine was running. Defendant was seated in the driver's seat. See, Minutes dated March 19, 2013, p 12. The officer tapped on the window, awaking the Defendant, who rolled down the window, and stated " why are you stopping me, I know my rights." See, Minutes dated March 19, 2013, p 12. Officer Hernandez testified that " at that point, I smelled a strong odor of alcoholic beverage emanating from the vehicle. I asked defendant if he had anything to drink and he stated no." See, Minutes dated March 19, 2013, p 13.
The officer observed the Defendant to have " blood shot, watery" eyes, and his speech was slurred. When asked to exit the vehicle, " he was unsteady on his feet, he need to hold on to the door. And then with his left hand as he' walking to the rear of the car used his left hand to hold on to the vehicle." See, Minutes dated March 19, 2013, p 13.
At that time, Officer Hernandez found a beer can while " inventorying the front seat of the car." Specifically, the officer found the can " in the driver's side door jammed." See, Minutes dated March 19, 2013, p 15(sic). After the recovery of the can, which was " a Coors Light ... a gray can ... half empty ... still cold," the Defendant stated he " only had one drink, and it was the beer that we found." See, Minutes dated March 19, 2013, p 15.
Based upon his observations of the Defendant, his professional training and " social interaction(s)," Officer Hernandez believed the Defendant to be intoxicated. See, Minutes dated March 19, 2013, p 17. At the precinct subsequent to his arrest, Defendant refused to take the chemical breath analysis test. See, Minutes dated March 19, 2013, p 18-19.
Upon cross examination, it was revealed that Officer Hernandez did not voucher the beer can. Instead, he took a picture of the can, and " when we go to the precinct I threw it away." See, Minutes dated March 19, 2013, p 25.
Based upon the evidence received at the hearing, the Court makes the following findings;
The Court reiterates its finding, given at the conclusion of the hearing; Officer Hernandez was a credible witnesses. See, Minutes dated March 21, 2013, p 77.
Defendant asserts that Officer Hernandez did not have probable cause to stop and arrest Defendant since there was insufficient evidence to establish that Defendant operated a motor vehicle. This argument is based upon Defendant being found sleeping at the time he was approached by the police. See, Defendant's Cross Motion dated May 6, 2013, p 3, para 15-16. This position, however, does not have support in the law.
Officer Hernandez testified that he observed the Defendant seated behind the wheel of a motor vehicle, with his head resting against the driver's side window, with the key in the ignition and the engine running. See, Minutes dated March 19, 2013, p 10, 12.The vehicle was allegedly parked " blocking the entrance way" to a bank along Williamsbridge Road, Bronx, New York. See, Minutes dated March 19, 2013, p 9-10.
These allegations " afforded a sufficient basis for the police to make an investigative stop."
See, People v. Saplin, 122 A.D.2d 498, 499, 505 N.Y.S.2d 460 (3d Dept, 1986), citing Berkemer v. McCarty, 468 U.S. 420, 439-440, 104 S Ct 3138, 82 L Ed2d 317 (1984). When coupled with the officer's observations of Defendant's physical condition at the time of his arrest, " a reasonable inference could be drawn that defendant had been driving while intoxicated. Therefore, we find that (the police) had the requisite probable cause to effect defendant's arrest at the scene." People v. Spencer, 289 A.D.2d 877, 879, 736 N.Y.S.2d 428 (3d Dept, 2001).
Whether or not Defendant operated the motor vehicle, or intended to do so, is a determination best left to the consideration of the jury.
See, People v. Totman, 208 A.D.2d 970, 971, 617 N.Y.S.2d 234 (3d Dept, 1994). As was recently stated by the Appellate Term, " to obtain ... a conviction, there is no requirement that the defendant be observed driving the vehicle; instead, operation of a vehicle can be proven by circumstantial evidence." See, People v.. Murray, 2013 WL 2915711 (App Term, 9th and 10th Jud. Dist, 2013), p 1, citing People v. Salerno, 26 Misc.3d 151(A), 2012 WL 3870090 (App Term, 9th and 10th Jud. Dist, 2012).
See, also, People v. Marriott, 37 A.D.2d 868, 325 N.Y.S.2d 177 (3d Dept, 1971) (" defendant's presence alone behind the steering wheel of the automobile in an intoxicated condition with the motor running ... allowed the jury to draw the fair inference that ... this constituted operation within the intendment of the statute." )
As this Court stated in its oral decision, " all of the arguments made by the defense (regarding whether or not Defendant intended to operate a motor vehicle) are absolutely wonderful trial defenses." As such, Defendant's arguments regarding these defenses had no bearing on the Court's finding of probable cause for the stop and arrest of this Defendant. See, Minutes dated March 21, 2013, p 79.
The sole case cited by Defendant in support of his argument, People v. DeSantis, NYLJ, 5/21/90 (App Term, 9th and 10th Jud Dist, 1990), p 32, col. 4, involved a defendant who established that he only turned the engine of his vehicle on to keep warm. Evidence of this nature is properly received as an affirmative defense, for the purpose of negating the issue of intent. " (B)eing asleep in the driver's seat of a vehicle while the engine is running has been held to constitute the operation of a vehicle within the meaning of section 1192 of the (VTL) absent evidence that the engine was running for some reason other than with the intent of placing the vehicle in motion, such as to use the vehicle's heat or air conditioner." See, Murray, 2013 WL 2915711, p 2 (citations omitted).
In this case, though counsel argued the issue of operation, in the context of challenging the probable cause for his arrest, no evidence serving to negate Defendant's intent to operate a motor vehicle was presented to the Court in the instant matter.
Therefore, Defendant's Cross Motion to reargue and dismiss is denied.
For their part, the People argue that " the absence of the actual beer can is not so prejudicial ... to warrant a complete preclusion of any mention of the beer can, including defendant's own admissions." See, People's Motion, undated, p 8. This Court disagreed, and in its discretion, found that the failure to preserve the evidence collected by the police at the time of Defendant's arrest necessitated suppression of the photograph of the unpreserved evidence, as well as Defendant's statement regarding that item. See, Minutes dated March 21, 2013, p 80.
" Real evidence directly addresses the senses of the trier of facts. The object ... is presented for inspection, thereby enabling the judge and jury to acquire knowledge concerning it by the direct use of their senses ... it seems the most natural and satisfactory process of proof." Prince-Richardson on Evidence, Sec. 4-201, 11th Edition, 1995, p 142.
A photograph has long been deemed an acceptable form of proof, so long as the photo has been properly authenticated. See, People v. Webster, 139 N.Y. 73, 83, 34 NE 730 (1893). However, the standard use of a photograph as evidence at trial is to depict such subjects as the scene of a crime, or the state of the injuries suffered by a complainant shortly after said injuries occurred. In these instances, the photograph serves to memorialize something that either cannot be preserved (ie, injuries that have healed), or that would be impractical to have brought to a courtroom (ie, a photograph of the location where a crime allegedly occurred).
Substituting a photograph for discarded evidence is not the same as using a photograph for the purposes outlined above, particularly where there has been no explanation presented, reasonable or otherwise, regarding the failure to voucher the beer can as evidence.
In People v. Joseph, 86 N.Y.2d 565, 635 N.Y.S.2d 123 (1995), the People had lost or destroyed a police document, and argued that another document was the duplicative equivalent of the lost or destroyed document. The Court held that " a document that has been lost or destroyed and is therefore no longer available for judicial inspection cannot be deemed the duplicative equivalent'... our holding is based on our practical recognition that a document's unavailability poses an insurmountable barrier ..." 86 N.Y.2d at 569. The Court also stated that " a police officer's testimony regarding the contents of a lost or destroyed police document is not an acceptable substitute." 86 N.Y.2d at 570.
If this same reasoning is applied to the instant case, in the absence of any reasonable explanation for the failure to voucher the beer can, how can a photograph be acceptable as a substitute for direct physical evidence that was willfully destroyed by the arresting officer?
" Typically, sanctions are imposed where a law enforcement officer acting within the scope of his or her official duties loses or destroys evidence." See, People v. James, 93 N.Y.2d 620, 644, 695 N.Y.S.2d 715 (1999) (citations omitted); People v. Woodridge, 30 A.D.3d 898, 900, 817 N.Y.S.2d 748 (3d Dept, 2006). " In fashioning an appropriate' response to the prosecutor's wrongful failure to preserve evidence ... the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society." See, People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834 (1984). Thus, " the choice of appropriate' action is committed to the sound discretion of the trial court." 62 N.Y.2d at 521.
The People assert that there is no prejudice suffered by the Defendant as a result of the lost evidence. In fact, the People note that " the defendant has not presented any evidence or argument that the absence of the actual ... beer can recovered by Officer Hernandez is prejudicial to his defense." See, People's Motion, undated, p7.
It is the Court's obligation to insure that a criminal defendant receives a fair trial. People v. Brown, 160 A.D.2d 440, 447, 554 N.Y.S.2d 492 (1st Dept, 1990). This is an affirmative duty, which means the Court does not wait until a party discovers at some later point that they were prejudiced by the presentation of a photograph to the jury of evidence that was discarded by the arresting officer. This is why " the choice of appropriate' action is committed to the sound discretion of the trial court." See, People v. Riley, 19 N.Y.3d 944, 946, 950 N.Y.S.2d 506 (2012), citing Kelly, 62 N.Y.2d at 521.
Thus, under the circumstances of this case, in its discretion, the Court crafted what it believes to be the appropriate remedy, one that would ensure the fairness of the proceedings. Thus, the Court reaffirms its decision; the photograph of the destroyed evidence is suppressed, as is Defendant's statement regarding that evidence.
Therefore, the People's motion to reargue is denied.
All other arguments advanced by the People and Defendant have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.