Opinion
02508-2018
02-19-2020
The PEOPLE of the State of New York, Plaintiff, v. XI HE, Defendant.
The People by: Assistant District Attorney Danielle Catinella, Queens County District Attorney's Office, 125-01 Queens Boulevard, Kew Gardens, New York 11415 The Defendant by: Joel Schmidt, Esq., The Legal Aid Society, 120-46 Queens Boulevard, Kew Gardens, New York 11415
The People by: Assistant District Attorney Danielle Catinella, Queens County District Attorney's Office, 125-01 Queens Boulevard, Kew Gardens, New York 11415
The Defendant by: Joel Schmidt, Esq., The Legal Aid Society, 120-46 Queens Boulevard, Kew Gardens, New York 11415
Gene R. Lopez, J.
On June 6, 2019, the defendant entered into a conditional plea agreement. He pleaded guilty to Aggravated Driving While Intoxicated ( VTL § 1192[2][a] ) and Driving While Ability Impaired ( VTL § 1192[1] ). The agreement required the defendant to complete the Impaired Driver Program, the Victim Impact Panel, and install and maintain an ignition interlock device on his vehicle for a period of ninety days without any violations. Specifically, the Pre-Sentence Order Directing Installation of Ignition Interlock Device ordered the defendant not only to install and maintain the device, but also to "not attempt to start or operate a motor vehicle, resulting in a failed start-up or re-test, when the defendant's blood alcohol concentration (BAC) is ...0.0% or higher." If the defendant successfully completed these conditions, the top count would be vacated. If the defendant failed, he was to be sentenced on the top count to a one-year conditional discharge with a $1000 fine and the requirement to install an ignition interlock device on any vehicle he owned or operated for the duration of the conditional discharge.
The purpose of the ignition interlock device is to detect the presence of any alcohol in the defendant's body as he attempts to start a motor vehicle.
The People now allege that the defendant has violated the terms of his plea agreement by failing to comply with the ignition interlock condition in a number of ways. On October 8, 2019, the People filed a motion for declaration of delinquency, asserting that the defendant had violated his conditional discharge by failing to install the ignition interlock device for a period of two months and failing to install it properly when he did so. The People also submitted documentation of several other violations of the ignition interlock requirement. This documentation includes a report from Intoxalock, the company that administers the device. The Intoxalock report provides a detailed day-by-day breakdown of the defendant's activity in connection with the device.
It is important to note that the People's characterization of this proceeding as a violation of a conditional discharge is erroneous. As the defendant has not yet been sentenced to a conditional discharge, he is, of course, not subject to one and thus cannot have violated a conditional discharge. Instead, he is accused of violating the conditions of a conditional plea agreement.
On August 30, 2019, between 9:17 and 10:03 a.m., the report shows a number of failed start tests. At 9:17 a.m., the defendant's start test reflected a failing blood alcohol concentration ("BAC") of .05. Upon a retest at 9:23, his BAC was .049. At 9:27, he failed another test with a BAC of .045. He again attempted a start test at 9:34 a.m. and failed again with a BAC of .039. After having several attempts rejected because the pressure with which he was blowing into the machine was "too soft," at 9:42, he submitted to another start test, which indicated his BAC was .036. Seven minutes later, he took a retest and his BAC was .033. At 9:54, he again attempted to start the vehicle and his test indicated that his BAC was .031. A retest at 10:00 a.m. indicated that it was .028. Finally, at 10:03. he "passed" a start test with a BAC of .024.
While the machine's settings characterized this BAC as passing and thus permitted the defendant to drive the vehicle, this court had ordered him not to drive with any BAC above .00.
About one week later, on September 6, 2019, the defendant again failed a number of start tests on the device. At 8:25 a.m., a start test indicated his BAC was .096. A retest at 8:31 reflected a BAC of .084. Almost two hours later, at 10:11 a.m. the defendant again attempted a start test and failed with a BAC of .064. At 10:22, he took another start test, which resulted in a BAC of .058. At 10:29 a.m. yet another start test indicated his BAC was .059. Further, he failed additional tests at 10:34 (BAC: .053), 10:40 (BAC: .055), 10:43 (BAC: .052), 10:50 (BAC: .045), 10:54 (BAC: .044), 11:00 (BAC: .045), 11:04 (BAC: .040), 11:09 (BAC: .044), 11:13 (BAC: .039), 11:36 (BAC: .033), 11:42 (BAC: .032), and 11:46 (BAC: .030).
Finally, on October 10, 2019, he failed a start up test with a BAC of .167. He did not submit to a retest.
The defendant contends that he is entitled to a hearing on the issue of whether he has violated the terms of his conditional plea. The People oppose the defendant's motion for a hearing.
Relying on Torres v. Berbary , 340 F3d 63 (2d Cir 2003), the defendant contends that due process requires an evidentiary hearing in this matter. He argues that the documentation the People has provided is not enough to satisfy the requirements of due process because it contains "untold levels of hearsay." He also complains that the People's declaration of delinquency conflicts with the documentation provided by the citywide monitor for ignition interlock devices and Intoxalock. Further, the defendant notes that there is no information about the technology used in the device, any calibration performed on the device, the history of this specific interlock device, and the nature of the maintenance of the device.
In addition, the defendant cites an article from the New York Times, "These Machines Can Put You in Jail. Don't Trust Them." This article purports to expose flaws and inaccuracies in machines used by police departments across the country to measure blood alcohol content using a breath sample. Defendant contends that the allegedly flawed machines the article discusses are "said to be more trustworthy" than the device at issue in this case. He also argues that the ignition interlock device installed on his vehicle, "uses a fuel cell sensor that is markedly less reliable than the infrared spectroscopy technology used in the Intoxilyzer machines and other machines used for evidentiary purposes at trial." Further, he claims that alcohol breath testers can derive false positives from other common substances that may be present in the breath. The defendant also points to instructions on the Intoxalock website, which state that false positives may occur if an individual has eaten or had anything to drink within fifteen minutes of blowing into the machine or if he has used mouthwash.
The defendant also argues that, consistent with Torres , the court should consider mitigating circumstances even if it finds that a violation occurred. He contends that he should be permitted to present such evidence at the hearing he requests. First, he urges the court to consider that there is no evidence that the device was ever tampered with or removed or that the defendant ever actually operated the vehicle with a blood alcohol content above zero. Moreover, he points out that the Intoxalock website's "Frequently Asked Questions" page did not explain the zero tolerance condition that this court imposed with respect to the defendant's plea. He also claims that the order imposing the ignition interlock condition is "confusingly written" and written in English, which he does not speak. Thus, he argues that, "[e]ven assuming" the court informed him that there would be zero tolerance of ignition interlock violations through the Mandarin interpreter who was present when the defendant pleaded guilty, he may not have understood the requirement.
In support of mitigation, the defendant also highlights his religious-based persecution in his native country and imprisonment there, which necessitated his immigration to the United States. He notes that the completed a fourteen-week alcohol program, as well as the Victim Impact Panel.
In opposition to the defendant's claims, the People contend that the decision of whether to hold an evidentiary hearing is within the court's discretion. They also claim that no hearing is necessary because they do not seek a sentence of incarceration, but rather a conditional discharge.
The defendant has also made an additional submission dated December 23, 2019, concerning potential issues with the Intoxalock machine.
Relevant Law
In Torres v. Berbary , 340 F3d 63 (2d Cir 2003), the case on which the defendant relies, the defendant appealed from a judgment denying a writ of habeas corpus , claiming that the Supreme Court, Bronx County, resentenced him in violation of due process following a violation of the terms of his original sentence. There, the defendant had pleaded guilty to Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.49[1]) in connection with a plea bargain that required him to complete a drug treatment program. ( Id. at 64.) If he successfully completed the program, he was to have his plea vacated and plead guilty to a misdemeanor with a sentence of time served. ( Id. at 65.) If he did not successfully complete the program he was to receive a sentence of four and one-half to nine years' incarceration on the felony charge. (Id. )
Less than a month after his plea, the defendant was discharged from his drug treatment program. (Id. ) The program provided a form that attributed the defendant's discharge to distributing contraband within the treatment facility. The form also indicated that the defendant had the right to review of the program's decision. Although the defendant checked a box requesting a review, no such review was ever provided by the program. The program also provided a letter to the court explaining the reasons for the defendant's discharge. (Id. ) It stated:
New resi[d]ents overheard conversations conducted in [S]panish between this client and other residents claiming they could make illicit drugs available for sale within this facility. It is suspected that the drugs may have been entering the facility through the use of church trips. Confederates may have met clients at church to pass drugs or money. Also, it is suspected that gang activity in the form of meetings on the male floor and the use of gang hand signals have involved [the defendant]. Although we have been unable to obtain physical evidence, we have received information from residents that clearly implicates this individual in an organized attempt to sell drugs in this facility. (Id. )
Despite the protests of counsel, based on the form and letter from the program, the sentencing court found that the defendant had violated the conditions of his plea. (Id. at 65-66.) Denying counsel's request for a hearing on the issue, the court sentenced the defendant to four and one-half to nine years' prison on the felony charge. (Id. at 66.)
Based on these facts, the Second Circuit found that the defendant was denied due process in his sentencing. (Id. at 72.) The Court noted that the United States Supreme Court has established that the standard of proof for facts at sentencing to satisfy the requirements of due process is a preponderance of the evidence. (Id. at 69 [citing McMillan v. Pennsylvania , 477 US 79, 91 (1986).] ) Analogizing to Supreme Court precedent regarding alleged violations of a defendant's parole, the Court concluded that the same due process considerations must be observed, including "an opportunity for a hearing." At the same time, the Court recognized that "although due process considerations are implicated in sentencing generally, not all the evidentiary limitations and procedural safeguards are required in the conduct of a sentencing proceeding." (Id. at 70 [citing United States v. Fatico , 579 F2d 707, 711 [2d Cir 1978].] ) In that regard, "Due Process does not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means." (Id. [citing Fatico , 579 F2d at 713.] )
Applying these principles to the case before it, the Court found that the report and letter from the drug treatment program did not meet the preponderance of the evidence standard necessary for sentencing. Although the Court acknowledged that material that would be inadmissible at a trial could be relied upon in a sentencing proceeding, "a single report replete with multiple levels of hearsay and speculation cannot be said to suffice to make a showing by a preponderance of the evidence, even under the ‘flexible’ standard that is permitted." (Id. at 71.) The Court then noted, "Due process has clearly been held to require ‘some kind of hearing’ before a person is deprived of a liberty interest." (Id. [citing Wolff v. McDonnell , 418 US 539, 558 [1974].] ) The Court concluded that this standard had not been met in the case before it, finding: The following elements, unique to this case, compel the issuance of a writ of habeas corpus: total reliance by the trial court on a hearsay report that itself contains only uncorroborated statements of unnamed informants; omission of any finding by the trial court as to the reliability of the informants or as to reasons for the non-disclosure of their identities; failure of the trial court to conduct some kind of hearing, including provision for the examination of Torres under oath; lack of preponderating evidence of Torres' wrongdoing; and the gross disparity between a sentence that would release Torres to society on a plea to a misdemeanor charge after completion of the Phoenix House program and the four-and-a-half-to-nine-year felony sentence to state prison that he received for violating the original sentence condition. (Id. at 72).
Significantly, the New York Court of Appeals has explicitly addressed the Second Circuit's decision in Torres v. Berbary . In People v. Fiammegta , 14 NY3d 90 (2010), the Court found that a trial court was not required to conduct an evidentiary hearing or make a determination based upon a preponderance of the evidence where the defendant was discharged from a drug treatment alternative-to-prison program ("DTAP") based on a series of alleged thefts. There, the defendant had been charged with, inter alia , second-degree burglary. ( Id. at 91-92.) The defendant entered a drug treatment alternative-to-prison program by which he would undergo substance abuse treatment instead of mandatory prison. Under the terms of this agreement, he was adjudicated a predicate felon, pleaded guilty to one count of second-degree burglary, and agreed to enter an eighteen-to-twenty-four-month residential treatment program. The People agreed to dismiss the indictment if the defendant was successful in his program and aftercare. The court told the defendant that if he failed to complete the program, it would sentence him to eight years' prison with five years' post-release supervision. ( Id. at 92.)
Several months after the defendant entered the treatment program, the program staff sent a letter to the court explaining that he was potentially going to be discharged because he had violated the rules of conduct and evinced an unsatisfactory attitude. (Id. ) At the defendant's next court date, the court granted him another chance to comply with the program's requirements and adjourned the case for two weeks. On that date, a Treatment Alternatives for Safer Communities ("TASC") representative informed the court that the defendant would be able to enter a different residential program that day. (Id. )
About six months later, a TASC representative informed the court that the defendant had been discharged from his second residential treatment program. TASC also provided the court with a letter from one of the directors of the program, which stated that "[a]s a result of an extensive and thorough investigation," the defendant had been identified as responsible for a series of thefts from vocational counselors involved with the program. (Id. at 93.) The director also outlined the evidence supporting the conclusion that the defendant had committed the thefts. (Id. ) When the defendant appeared for his next court date, the court adjourned the case to see if the program would allow the defendant to return. (Id. )
On the next court date, after this effort proved unsuccessful, the People asked the court to sentence the defendant. Defense counsel opposed the People's application, noting that the defendant had not used drugs for fourteen months and arguing that the letter from the program was "very circumstantial" and did not indicate that the defendant had been afforded any process to determine whether he was, in fact, responsible for the thefts. (Id. ) Counsel, thus, requested that the court allow the defendant to try another program. A TASC representative explained to the court that DTAP would have to approve any further treatment for the defendant and DTAP ultimately indicated that it was not going to offer him another program. (Id. at 93-94.) When it became clear that another program was not available, defense counsel requested a hearing on the issue, contending that the letter from the program was speculative. (Id. at 94.) Instead, the court eventually adjourned the case to allow defense counsel to speak with the program. The court made clear, however, that it was not inclined to hold a hearing. (Id. at 95.)
On the next date, defense counsel told the judge that she had communicated with the program director, who now believed that the defendant had been set up for the thefts and was willing to take him back. (Id. ) The prosecutor noted that DTAP was still unwilling to allow the defendant another chance and that the program was not prepared to readmit him. The People also indicated that they opposed defendant's admission into that or any other program. Defense counsel again asked for a hearing, but the court stated its belief that a hearing would not resolve the issue since the program had discharged him and the People were not willing to give him the chance to try another program. (Id. ) Nonetheless, the court adjourned the case so it could speak with the program's director. At the next court date, the judge explained that he had spoken with the program's director and it was clear that the program still believed that the defendant had committed the thefts and was unwilling to take him back. Defense counsel stated that she had also spoken to the director, who had expressed a different opinion to her, again suggesting that the defendant had been set up. Ultimately, the court sentenced the defendant to eight years' incarceration and five years' post-release supervision. (Id. at 96.)
The Court of Appeals found that the Supreme Court was not required to conduct an evidentiary hearing or determine by a preponderance of the evidence that the defendant was responsible for the misconduct at issue under these circumstances. (Id. at 98.) The defendant, relying on Torres v. Berbary , 340 F3d 63, argued that the Court should hold that due process requires "that a defendant who faces termination from a drug treatment program on account of contested allegations of wrongdoing is entitled to a hearing akin to that afforded a defendant subject to probation or parole revocation." (Id. at 97.) Such a hearing, the defendant posited, should include the opportunity to present evidence and testify, to confront adverse witnesses, and to have the accusations proven by a preponderance of the evidence. (Id. )
The Court, however, rejected these arguments and applied the rule of People v. Outley , 80 NY2d 702, 712 (1993). In doing so, the Court found that under these circumstances, "the court must carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis for the program's decision, and must explain, on the record, the nature of its inquiry, its conclusions, and its basis for them." (Id. at 98.) However, the Court also determined that the Supreme Court should have considered the defendant's argument that he was removed from the program based upon weak evidence and should have allowed the defendant to submit affidavits, letters, or testimony from witnesses whom counsel had described as having information relevant to the issue. (Id. )
In People v. Dimon , 174 AD3d 540 (2d Dept 2019), the Second Department relied on Fiammegta in finding that the court below had failed to conduct a sufficient inquiry in a similar context. The defendant had pleaded guilty to third-degree criminal mischief and second-degree reckless endangerment with the understanding that one of the convictions would be dismissed and the other would be reduced to disorderly conduct with a sentence of a conditional discharge upon her successful completion of a Mental Health Court program. If she failed to complete the program, she would be sentenced to one year of imprisonment. ( Id. at 541.) At sentencing, the prosecutor informed the court that the defendant had not successfully completed the mental health program. Apparently based on this representation alone, the court sentenced the defendant to a one year prison term. The Appellate Division reversed, finding that the County Court had "failed to conduct an inquiry sufficient to assure that the defendant had, in fact, violated the terms of the plea agreement and that the information upon which it based the sentence was reliable and accurate." (Id. )
Analysis
Under these circumstances, this court finds that no evidentiary hearing is required, but rather, a "sufficient inquiry" as described in Fiammegta is appropriate. Here, the circumstances differ from the above cases in that the defendant is not accused of failing to complete a treatment program. Instead, the People have accused him of violating the term of his conditional plea requiring that he install and maintain an ignition interlock device on his vehicle for a period of ninety days without any violations. This condition differs from the requirement that a defendant complete a treatment program because it involves an explicit zero-tolerance component.
Moreover, the types of violations here contrast starkly with possible violations of the rules of conduct of a program that are unrelated to the defendant's treatment goals. Indeed, in Fiammegta , the defendant had remained drug-free for fourteen months despite his apparent struggles complying with the treatment programs' rules. By contrast, in this case, the violations at issue are directly related to the defendant's abuse of alcohol and the underlying charges. As the ostensible purpose of a conditional plea in this type of case is to give the defendant a chance to address any substance abuse issues so that he may ultimately receive a conviction with less severe consequences, his inability to comply with a condition directly implicating those issues is, in this court's opinion, a more serious violation.
Further, the evidence in this case contrasts starkly with the hearsay allegations against the defendants in Torres and Fiammegta . Indeed, in Torres, it was partially the weak and speculative nature of the evidence of the defendant's violation that concerned the Second Circuit on the issue of due process. Here, instead of vague allegations regarding misconduct at a treatment facility, the People have produced extensive reports regarding the defendant's ignition interlock testing. These reports reveal not just one violation, but many, making it significantly less likely that these positive tests can be attributed to freak malfunctions in the machine. The court also notes that the pattern of positive tests and steadily declining blood alcohol concentrations upon retests over a period of, at times, hours is consistent with alcohol consumption. And on two dates, the defendant's BAC was not only above the permissible limit for operating a vehicle with an ignition interlock device, but also above .08, meaning that he was attempting to drive a vehicle when his conduct in doing so would have constituted additional crimes.
Moreover, though the defendant protests that the device at issue was unreliable, he voluntarily entered a plea agreement that required him to submit to testing by such a device with the understanding that any positive tests would result in a violation of his conditional plea. Further, having reviewed the defendant's submissions, the court disagrees with his contention. At least one court in New York has found that a Frye hearing was unnecessary to assess the reliability of an ignition interlock device because the court could take judicial notice of the fact that test results from a particular brand of ignition interlock device had been generally accepted as reliable by the scientific community. ( People v. Bohrer , 37 Misc 3d 370 [Just Ct Monroe Co 2012].)
In People v. Bohrer, the court noted that "[a]lthough no reported judicial opinion in New York holds that the results of an ignition interlock device are accepted as scientifically reliable, the reliability of breath alcohol detection machines in general is well-established." ( Id. at 372.) Further, the court observed that "[o]ther courts have examined statutory and regulatory schemes to determine if scientific evidence is generally accepted as reliable by the relevant scientific community," specifically pointing out that "[the Department of Health] evaluates specific models of breath alcohol testing machines and publishes a list of devices approved for use by law enforcement." (Id. [citing People v. Boscic , 15 NY3d 494, 497 (2010) ; 10 NYCRR § 59.4(b) ].) The court then explained that the device at issue, the Smart Start Ignition Interlock device, was among those included by the Department of Health in its list of approved devices. Thus, the court found, "the Smart Start ignition interlock is generally accepted by the relevant scientific community as a reliable device for the purpose of showing that a person has consumed alcoholic beverages." ( Id. at 375.)
Here, the device at issue, the Intoxalock ignition interlock device, is also on the Department of Health's list of certified devices. (Ignition Interlock Device Approval, Department of Health, Wadsworth Center , New York State, https://wadsworth.org/regulatory/bbat/ignition-interlock-device-approval [last accessed Feb. 17, 2020].) This court agrees with the reasoning of the Justice Court in Bohrer and finds that the Intoxalock device is generally accepted by the relevant scientific community as a reliable device for the purpose of showing that a person has consumed alcoholic beverages.
The court has already received and considered two submissions from the defendant on both the issue of whether a hearing is necessary in this matter and the quality of the evidence upon which the People are relying. In accordance with the requirements of Fiammegta , the court will also carry out an inquiry on the record of sufficient depth to determine whether there is a legitimate basis to conclude that the defendant has violated the conditions of his plea, allow the defendant to be heard, and explain on the record the nature of its inquiry, its conclusions, and its basis for them. Moreover, if the defendant wishes to present additional submissions in the form of letters, affidavits, or testimony, the court will hear him on the nature of this evidence and consider whether it will aid the court in its inquiry in light of the People's evidence.
Thus, the defendant's motion for a full evidentiary hearing at which the violation must be proved by a preponderance of the evidence is denied.
This constitutes the decision and order of the court.
The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.