| People v Palencia |
| 2015 NY Slip Op 06373 [130 AD3d 1072] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Palencia, Appellant. |
Russell Law Group, PLLC, Westbury, N.Y. (Camille O. Russell of counsel), forappellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Yael V. Levy and DonaldBerk of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(Spergel, J.), rendered September 13, 2013, convicting him of operating a motor vehiclewhile under the influence of alcohol in violation of Vehicle and Traffic Law§ 1192 (3), upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing before the Supreme Court, Nassau County(Ayres, J.), of that branch of the defendant's motion which was to suppress evidence ofhis refusal to submit to a chemical breath test, and the granting of the People's separatemotion to admit the results of a prior portable breath test into evidence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and a new trial is ordered.
In the early morning hours of March 25, 2012, the defendant was involved in a motorvehicle accident in which he struck the rear end of another vehicle on a public highway.A New York State Trooper who responded to the scene observed that the defendantexhibited signs of intoxication, and administered several field sobriety tests, including ahorizontal-gaze nystagmus test, a walk-and-turn test, and a one-legged foot-elevationtest. Based on the defendant's performance, the trooper concluded that he failed all threetests. Thereafter, the trooper administered a portable breath test (hereinafter PBT) to thedefendant. The trooper verbally instructed the defendant how to perform the PBT, andalso physically demonstrated how to take the test. The defendant put his lips on themouthpiece and exhaled until he was told to stop. The PBT showed a positive bloodalcohol concentration, after which the trooper informed the defendant of that positiveresult. The trooper did not write down the result of the PBT, and he testified at thesuppression hearing that it was not his general practice to memorialize PBT results inwriting. The trooper concluded that the defendant was intoxicated, and placed him underarrest. After the defendant was read a statement setting forth the consequences of anyrefusal by him to submit to further testing, as well as Miranda warnings (seeMiranda v Arizona, 384 US 436 [1966]), the defendant agreed to submit to achemical breath test for the purpose of determining the alcohol content of hisblood.
[*2] Thereafter, the trooper transportedthe defendant to the nearest New York State Police barracks, and prepared a deviceknown as a Draeger instrument to administer the chemical breath test. The trooperinstructed the defendant to blow into the mouthpiece until he was told to stop. Accordingto the trooper, the defendant exhaled with a short breath, and stopped before being toldto stop. The trooper removed the mouthpiece, replaced it with a new one, and had thedefendant try again. Once again, the defendant did not provide a full breath sample.Thereafter, the trooper allowed the defendant three more opportunities to provide anadequate breath sample. However, each time the defendant only exhaled with a shortbreath. After the fifth attempt, the defendant told the trooper that he could not blow anylonger, and the trooper deemed the defendant's behavior to be a refusal to submit to thetest.
Prior to the start of trial, the People moved in limine to allow testimony about theadministration and results of the PBT. The People argued that such testimony went to thedefendant's state of mind and consciousness of guilt when he was administered theDraeger chemical breath test at the State Police barracks, inasmuch as he was able toprovide a proper breath sample for the PBT. The defense objected, and argued that theevidence of the results of the PBT was inadmissible because the test was not reliable andthe results were prejudicial. Subsequently, the Supreme Court issued a written decisionexplaining that it would allow those results into evidence if the People could show thereliability of the PBT device by confirming that it was on the conforming list approvedby the Commissioner of the New York State Department of Health (hereinafter theCommissioner), that the test was properly administered, that the test was administered bya properly qualified administrator, and that the defendant had knowledge that the testresults showed a presence of alcohol.
During the trial, which was conducted by the County Court, that court took judicialnotice of the fact that the PBT device was on the Conforming Products List of EvidentialBreath Alcohol Measurement Devices (hereinafter the conforming list) compiled andapproved by the Commissioner (see e.g. People v Boscic, 15 NY3d 494, 499-500 n [2010]).The trooper testified that he received training with respect to the administration of thePBT and the operation of the PBT device, that the PBT device appeared to be in workingorder, and that the defendant was able to blow into the device as instructed until thetrooper told him to stop. The trooper also testified that the PBT results indicated thepresence of alcohol, and that he informed the defendant of this. The court did not give alimiting instruction at that time but, rather, with the consent of counsel for both thePeople and the defendant, gave a limiting instruction during the jury charge. In sum andsubstance, the court instructed the jury that the testimony relating to the PBT wasintroduced by the People solely to demonstrate the state of mind of the defendant inconnection with any subsequent conduct, and that the jury could not rely on the results ofthe PBT in determining whether the defendant was intoxicated.
On appeal, the defendant contends that he was deprived of his right to a fair trialbased on the County Court's admission of the PBT results into evidence. We agree.Under the circumstances of this case, the probative value of the PBT evidence wasoutweighed by its prejudicial effect and, accordingly, should have been excluded (see People v Caban, 14 NY3d369, 374-375 [2010]; People v Scarola, 71 NY2d 769, 777 [1988]; cf.People v MacDonald, 227 AD2d 672, 674 [1996]).
Generally, the result of a PBT "is not admissible to establish intoxication, as itsreliability for this purpose is not generally accepted in the scientific community" (People v Kulk, 103 AD3d1038, 1040 [2013]; see People v Thomas, 70 NY2d 823, 825 [1987],affg 121 AD2d 73 [1986]; see also People v Schook, 16 Misc 3d 1113[A], 2007 NYSlip Op 51411[U] [Suffolk Dist Ct 2007]). Here, although the PBT evidence was notintroduced for the purpose of proving intoxication, since the jurors were permitted tohear that the PBT detected the presence of alcohol, the County Court created anunacceptable risk that the jurors would improperly consider the PBT evidence for thisimpermissible purpose. This risk was enhanced both by the County Court's determinationto take judicial notice that the PBT was on the Commissioner's conforming list and theState Trooper's trial testimony that he was trained in the operation of the PBT device.The trooper's testimony in this regard, which was directed towards the issue of whetherthe PBT was reliable for its intended purpose—the assessment of the defendant'slevel of intoxication—was irrelevant to the defendant's state of mind at the time[*3]he submitted to the chemical breath test at the StatePolice barracks. Thus, this testimony increased the risk that the jury would be unable toavoid considering the PBT evidence as proof of the defendant's intoxication.
Moreover, the risk that the jurors would consider the PBT results as evidence ofintoxication was further magnified by the fact that the jurors were not given a limitinginstruction at the time the PBT evidence was presented but, instead, only at the end of thetrial. While limiting instructions can, in certain instances, function to alleviate thepotentially prejudicial impact of evidence, under the particular circumstances of this case,the prejudicial impact of the PBT evidence was substantial and, contrary to theconclusion reached by our dissenting colleagues, this prejudice was not alleviated by thecontents or timing of the limiting instruction given by the County Court (see People v Clarke, 90 AD3d777, 777 [2011]; People vAllen, 85 AD3d 1042, 1043 [2011]).
The exclusion of the PBT evidence was further warranted since the limited testimonyof the trooper did not establish the reliability of the PBT, nor did it explain the potentialdifferences, if any, in the duration and volume of breath needed to be exhaled by thedefendant when submitting to the PBT, as opposed to the chemical breath testadministered at the State Police barracks that employed the Draeger testing device. Therewas no testimony whatsoever regarding when the PBT device was last calibrated and, assuch, no way of knowing whether the device was indeed functioning properly or whetherits results were reliable (see People v Boscic, 15 NY3d at 500). There was notestimony by the trooper or any other witness as to whether the duration and volume ofbreath needed to be exhaled by the defendant when blowing into the PBT device wasmore than, less than, or the same as the amount needed when submitting to the chemicalbreath test. As such, the jury was improperly invited to speculate that the duration andvolume of breath needed to be exhaled by the defendant when blowing into both deviceswas the same and, therefore, that the defendant intended to provide an inadequate samplewhen he submitted to the chemical breath test (cf. Vazquez v Costco Cos., Inc., 17 AD3d 350, 352[2005]).
While the People argue that the reliability of the PBT is irrelevant because theevidence was not introduced for the purpose of proving the defendant's intoxication, onecannot ignore that when a lay juror is presented with evidence of this nature, i.e., aninstrument able to detect the presence of alcohol, there is a strong likelihood that itsresult will be given substantial weight, particularly in light of the lack of testimonycomparing the duration and volume of breath needed to be exhaled so that both the PBTdevice and the Draeger chemical breath test device could properly and accuratelymeasure blood alcohol content. As such, the prejudicial effect upon the jurors fromhearing that the PBT detected the presence of alcohol substantially outweighed anyprobative value that this evidence might have had with respect to the defendant's state ofmind at the time that he submitted to the chemical breath test at the State Policebarracks.
Moreover, we find that the evidence of the administration and results of the PBT testwas unnecessary given the totality of the circumstances. The trooper testified that thedefendant failed all other field sobriety tests administered to him, and that, when he wasbrought to the State Police barracks, he made five unsuccessful attempts to take thechemical test, each time failing to follow the trooper's instructions. This provided thePeople with sufficient evidence to support their argument that the defendant evinced aconsciousness of guilt without the need of introducing the PBT evidence.
The introduction of the PBT evidence was so prejudicial that it deprived thedefendant of his constitutionally guaranteed right to a fair trial (see People v Henriquez, 3NY3d 210, 210 [2004]; cf. People v Kulk, 103 AD3d at 1040).
Accordingly, a new trial must be ordered.
We need not address the defendant's remaining contentions, which have beenrendered academic by our determination. Hinds-Radix, Maltese and LaSalle, JJ.,concur.
Skelos, J.P., dissents, and votes to affirm the judgment, with the followingmemorandum, in which Miller, J., concurs: The majority concludes that the defendant'sconviction must be reversed because the admission of evidence regarding the results of aportable breath test (hereinafter PBT), not for the purpose of proving intoxication, but forthe limited purpose of demonstrating the defendant's state of mind when subsequentlyadministered a chemical test, deprived the defendant of a fair trial. In my view, the PBTevidence was probative of the defendant's state of mind at the time he was administeredthe chemical test and, in light of the explicit limiting instruction provided by the trialcourt regarding the use of the evidence, its admission was not more prejudicial thanprobative. Since the defendant's other contentions on appeal lack merit, I thereforedissent, and would affirm the defendant's judgment of conviction.
On March 25, 2012, a New York State Trooper, after responding to the scene of amotor vehicle accident in which the defendant had been involved, administered severalfield sobriety tests to the defendant, who had exhibited signs of intoxication. The trooperdetermined that the defendant failed the field sobriety tests, and thereafter administered aPBT. The trooper advised the defendant that the PBT had shown that the defendant wasintoxicated. The defendant was arrested, and upon being transported to the nearest NewYork State Police barracks and consenting to the administration of a chemical breath test,was given five opportunities to provide a sample for that test. Each time, the defendantfailed to exhale a sufficient volume of breath into the machine to register a result, sincethe duration of his exhales was too short.
At trial, the People sought to introduce evidence that the defendant was administereda PBT, and that he was advised that the test showed that he was intoxicated. The Peoplesought to introduce this evidence, not to prove intoxication, but to demonstrate thedefendant's state of mind when he was subsequently administered the chemical breathtest. Under the particular circumstances of this case, evidence of the PBT was properlyadmitted for that limited purpose (see People v MacDonald, 227 AD2d 672[1996]).
Generally, "all relevant evidence is admissible unless its admission violates someexclusionary rule" (People v Scarola, 71 NY2d 769, 777 [1988]; see People v Pearce, 81 AD3d856 [2011]). "Evidence is relevant if it has any tendency in reason to prove theexistence of any material fact" (People v Scarola, 71 NY2d at 777; see Peoplev Mateo, 2 NY3d 383, 424 [2004]). However, "[e]ven where relevant evidence isadmissible, it may still be excluded in the exercise of the trial court's discretion if itsprobative value is substantially outweighed by the potential for prejudice" (People vMateo, 2 NY3d at 424-425; see People v Scarola, 71 NY2d at 777).
Here, the evidence that a PBT was administered to the defendant and that he was toldthat it rendered a positive result for intoxication tended to show that his failure to exhalea sufficient volume of breath for a sufficient period of time into the chemical breath testdevice was purposeful and demonstrative of his consciousness of guilt. Thus, under thegeneral rule, the PBT evidence was admissible for that limited purpose unless itsprobative value was "substantially outweighed" by its potential prejudicial effect(People v Mateo, 2 NY3d at 425).
The defendant could only be unduly prejudiced by the admission of the PBTevidence if the jury considered the evidence as proof of his intoxication. Thus, in myview, the trial court struck the appropriate balance between probative value and unfairprejudice by permitting the evidence to be introduced, subject to an explicit instruction tothe jury regarding the limited use of the evidence. In particular, during the charge, thejury was specifically instructed that the results of the PBT were admitted for the limitedpurpose of proving the defendant's state of mind in connection with his subsequentconduct, and that it could not rely upon the result of the PBT in determining whether thedefendant was intoxicated. This was a clear and simple instruction that was amplysufficient to alleviate any potential prejudice resulting from the admission of the PBT[*4]evidence. A jury is generally presumed to follow thecourt's instructions (see Peoplev Morris, 21 NY3d 588, 598 [2013]; People v Mooney, 62 AD3d 725, 727 [2009]; People vLugo, 218 AD2d 711 [1995]) and, indeed, "we depend, for the integrity of the jurysystem itself, upon the willingness of jurors to follow the court's instructions in suchmatters" (People v Berg, 59 NY2d 294, 299-300 [1983]).
Reflective of that fact, courts have frequently permitted, where relevant, theintroduction of evidence as potentially prejudicial as a defendant's alleged commission ofuncharged crimes (see e.g. People v Morris, 21 NY3d at 597-598; People vTosca, 98 NY2d 660 [2002]), even when committed against the very samecomplainant (see e.g. People vGopaul, 112 AD3d 964, 965 [2013]; People v Khan, 88 AD3d 1014 [2011]), or involving thesame or similar conduct for which he or she is being tried (see e.g. People v Yusuf, 104AD3d 881, 883 [2013]). In these cases, the courts have held that limitinginstructions were sufficient to ameliorate any potential prejudice (see People vMorris, 21 NY3d at 598; People v Tosca, 98 NY2d 660 [2002]; People vGopaul, 112 AD3d at 965; People v Yusuf, 104 AD3d at 883; People v Khan, 88 AD3d1014 [2011]). The same is true in the present case.
Contrary to the majority's concern, the People's failure to establish the reliability ofthe PBT device is not dispositive. As the trial court instructed the jury, the PBT evidencewas admitted for the purpose of proving the defendant's state of mind when the chemicalbreath test was administered. Thus, the operative fact is that the defendant was told thatthe results of the PBT were positive for intoxication. Whether that result was correct orreliable is irrelevant.
Accordingly, in light of the trial court's limiting instructions, the PBT evidence wasproperly admitted because its probative value outweighed its prejudicial impact (seePeople v MacDonald, 227 AD2d 672 [1996]; cf. People v Morris, 21 NY3dat 598; People v Tosca, 98 NY2d 660 [2002]; People v Gopaul, 112AD3d at 965; People v Yusuf, 104 AD3d at 883; People v Khan, 88 AD3d1014 [2011]).
Additionally, the Supreme Court, after a pretrial hearing, properly declined tosuppress evidence of the defendant's refusal to submit to the chemical breath test. Therewas sufficient evidence before that court to support the conclusion that the defendant wasgiven clear and unequivocal warnings of the effect of his refusal, and that he persisted inhis refusal to submit to the test by refusing to exhale a sufficient volume of breath intothe machine for a sufficient period of time (see Vehicle and Traffic Law§ 1194 [2] [f]; People v Barger, 78 AD3d 1191 [2010]; People v Tetrault, 53 AD3d558, 559 [2008]; cf. Peoplev Madrid, 52 AD3d 530, 531 [2008]).
Contrary to the defendant's further contention, the trial evidence demonstrated thatthe failure to obtain a chemical breath-test result at the police barracks was the result ofthe defendant's conduct, as opposed to a failure of the device (see Matter of Johnsonv Adduci, 198 AD2d 352 [1993]; People v Adler, 145 AD2d 943, 944[1988]). It was not necessary for the People to submit further evidence related to theaccuracy of that device, since the People did not rely upon results obtained from thedevice to demonstrate intoxication (see People v Adler, 145 AD2d at 944).
I would therefore affirm the judgment.