| People v Mora-Hernandez |
| 2010 NY Slip Op 07500 [77 AD3d 531] |
| October 21, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v JoseMora-Hernandez, Respondent. |
—[*1] M. Chris Fabricant, John Jay Legal Services, White Plains (Elizabeth M. Frederick of counsel), forrespondent.
Order, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), entered on or about May 19,2009, which granted defendant's suppression motion, unanimously affirmed.
The court properly granted defendant's motion to suppress the results of a breathalyzer test and thevideotape made of the test on the ground that the officers violated his right to counsel. The policeignored defendant's repeated requests for counsel prior to the administration of the test. A defendantwho has been arrested for driving while intoxicated and requests assistance of counsel generally has theright to consult with an attorney before deciding whether to consent to a sobriety test (People vShaw, 72 NY2d 1032 [1988]). As in People v Gursey (22 NY2d 224 [1968]), theofficers prevented defendant from contacting his lawyer when there was no indication that grantingdefendant's request would have substantially interfered with the investigative procedure. The recordcontradicts the People's contention that defendant voluntarily abandoned his request for counsel whenhe agreed to take the test. Concur—Sweeny, J.P., Freedman, Richter, Manzanet-Daniels andRomÁn, JJ.