| People v Lucifero |
| 2017 NY Slip Op 00190 [146 AD3d 811] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Anthony Lucifero, Respondent. |
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Yael V.Levy of counsel), for appellant.
Feinman & Kauffman, P.C., Mineola, NY (Justin Feinman of counsel), forrespondent.
Appeal by the People (1) from an order of the Supreme Court, Nassau County(Delligatti, J.), dated October 23, 2015, which, after a hearing, granted suppression of theresults of a blood alcohol test and all physical evidence obtained, and statements made tolaw enforcement officials, after the blood alcohol test was performed, and (2), as limitedby their brief, from so much of an order of the same court dated March 22, 2016, as,upon reargument, adhered to the determination in the order dated October 23, 2015.
Ordered that the appeal from the order dated October 23, 2015, is dismissed, as thatorder was superseded by the order dated March 22, 2016, made upon reargument; and itis further,
Ordered that the order dated March 22, 2016, is reversed insofar as appealed from,on the law, upon reargument, the order dated October 23, 2015, is vacated, suppressionof the results of a blood alcohol test and all physical evidence obtained, and statementsmade to law enforcement officials, after the blood alcohol test was performed, is denied,and the matter is remitted to the Supreme Court, Nassau County, for further proceedingsconsistent herewith.
On August 26, 2013, at a late-night party in the defendant's backyard in NorthMassapequa, the defendant allegedly got into a fight with a friend. The friend got into hiscar and drove away. The defendant got into a car, chased his friend, and allegedlyrammed his car into the back of his friend's car. The police arrived, arrested thedefendant, and took him to the hospital. They asked the defendant to submit to a bloodalcohol test, and the defendant agreed. A short time after the test was administered, thedefendant was given his Miranda warnings (see Miranda v Arizona, 384US 436 [1966]), and he made an inculpatory statement.
The defendant was charged with several crimes arising from the incident, includingalcohol-related crimes under the Penal Law and the Vehicle and Traffic Law. He movedto suppress [*2]various evidence, including the result ofthe blood alcohol test and the statement he made to the police after he took the test. At asuppression hearing, a police officer testified that he became aware, after the defendantconsented to take the test but before the test was administered, of the name and telephonenumber of an attorney for the defendant. The officer did not remember where he got thisinformation. No other evidence was presented as to this issue.
The Supreme Court granted the defendant's motion to suppress the results of theblood alcohol test and all subsequently obtained evidence on the ground that the policeviolated the defendant's limited right, first recognized in People v Gursey (22NY2d 224 [1968]), to consult with counsel about whether to take the blood alcohol test.Upon reargument, the court adhered to its original determination. The Peopleappeal.
At the suppression hearing, the People had the burden of going forward to establishthe reasonableness of the police conduct, and the defendant ultimately had the burden ofproving, by a preponderance of the evidence, that the police conduct was illegal (seePeople v Rosa, 65 NY2d 380, 387 [1985]; People v Jackson, 141 AD3d 1095, 1096 [2016]; People v Hilts, 19 AD3d1178, 1179 [2005]; Peoplev Lyons, 4 AD3d 549, 551 [2004]; People v Henriquez, 214 AD2d 485,485-486 [1995]).
Vehicle and Traffic Law § 1194 (2) (a) provides that "[a]ny person whooperates a motor vehicle in this state shall be deemed to have given consent" to a "breath,blood, urine, or saliva" test to determine the alcoholic content of their blood withincertain time limits after being arrested for certain crimes (see Vehicle and TrafficLaw § 1194 [2]). Although all drivers are "deemed" to have consented to ablood alcohol test, some drivers refuse to actually take a test. In recognition of this fact,the law provides for what happens when drivers refuse to take a blood alcohol test.Among the consequences are the automatic revocation of the person's driver license(see Vehicle and Traffic Law § 1194 [2] [c], [d]), and theadmissibility at trial of evidence that the driver refused to take the test (seeVehicle and Traffic Law § 1194 [2] [f]; see People v Smith, 18 NY3d544, 549 [2012]; People v Shaw, 72 NY2d 1032, 1033 [1988]). The onlyproviso is that these consequences may be imposed only if the driver has beensufficiently warned of them in advance of the refusal (see People v Smith, 18NY3d at 549-550). Some cases refer to this scenario as a "qualified right" to refuse totake a test voluntarily (see People v Smith, 18 NY3d at 549), or as an "option torefuse to take the . . . test" (People v Gursey, 22 NY2d at 228).
When deciding whether to refuse to take the test, a defendant may wish to consultwith counsel. In People v Gursey (22 NY2d 224 [1968]), the Court of Appealsheld in this context that the police "may not, without justification, prevent accessbetween the criminal accused and his lawyer, available in person or by immediatetelephone communication, if such access does not interfere unduly with the matter athand" (id. at 227; seePeople v Washington, 23 NY3d 228, 230 [2014]). The police have no duty towarn a defendant of this limited right before asking the defendant to submit to a bloodalcohol test (see People v Shaw, 72 NY2d at 1033-1034). Violation of the limitedright to consult with counsel will result in suppression of the test results (see People vWashington, 23 NY3d at 232).
In Washington, the Court of Appeals expanded the Gursey right whenit held that the right may be triggered by counsel, even when the defendant has notrequested to consult with counsel. Specifically, the Court held that when an attorney hasactually entered the case, a defendant who had not asked to speak with an attorney mustbe made aware of the attorney's entry into the case so that he or she may decide whetherto consult with counsel before making a refusal decision (see id. at 233).
"[A]n attorney 'enters' a criminal matter and triggers the indelible right to counselwhen the attorney or a professional associate of the attorney notifies the police that thesuspect is represented by counsel" (People v Grice, 100 NY2d 318, 324 [2003]).Notification given to the police by a third party, such as a member of the defendant'sfamily, is not sufficient to establish counsel's entry into the case (see id. at 322;People v McCray, 121AD3d 1549, 1549-1550 [2014]; see also People v Brown, 309 AD2d 1258,1258 [2003]). Although the holding in Grice related to the triggering of theindelible constitutional right to counsel, we see no reason to apply a less stringent rulefor triggering [*3]the more limited right to consult withcounsel before deciding whether to refuse a blood alcohol test. Indeed, the reasons forapplying this clear rule as to entry of counsel for purposes of the constitutional right tocounsel (see People v Grice, 100 NY2d at 323-324), apply with equal force to themore limited Gursey right.
Here, the parties do not dispute that at 2:35 a.m. the defendant consented to take theblood alcohol test; at 2:38 a.m. the police learned of the name and telephone number ofan attorney for the defendant, but the record does not explain how they got thatinformation; at 2:49 a.m. the blood alcohol test was administered; and at 3:30 a.m. thedefendant was advised of his rights and made a statement. Thus, the record does notestablish that counsel contacted the police before the test was given to notify them that herepresented the defendant. Because the record does not establish that counsel "entered"the case before the test was given, the Supreme Court erred in finding that the bloodalcohol test was given in violation of the defendant's limited right under Gurseyand Washington to consult with counsel (cf. People v Washington, 23 NY3d 228 [2014]; Peoplev Grice, 100 NY2d 318 [2003]; People v Gursey, 22 NY2d 224 [1968]).Moreover, regardless of whether the court was correct in suppressing the results of theblood alcohol test, there was no basis for suppression of any of the evidence obtainedafter the police administered that test. Accordingly, the court should have deniedsuppression of the results of the blood alcohol test and the evidence obtainedthereafter.
In light of our determination, we need not address the People's remainingcontentions. The defendant's remaining contentions are not properly before this Court onthe People's appeals from the suppression order and the order made upon reargument(see CPL 470.15 [1]; People v LaFontaine, 92 NY2d 470, 473-474[1998]). Eng, P.J., Balkin, Sgroi and Barros, JJ., concur.