The People, Respondent,v.Jose Aviles, Appellant.

Brief

N.Y.October 18, 2016

To BE ARGUED BY: COURT OF APPEALS No. APL- ALEKSANDR LIVSHITS, ESQ. 2015-00208 TIME REQUESTED: 15 MINUTES State of New York Court of Appeals PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSE AVILES, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT V. MARIKA MEIS, ESQ. Attorneys for Defendant-Appellant The Bronx Defenders 360 East 161st Street Bronx, New York 10451 Tel: (718) 838-7846 Fax: (718) 665-0100 ALEKSANDR B. LIVSHITS, ESQ. Of Counsel Fried, Frank, Harris, Shriver & Jacobson LLP 1 New York Plaza New York, NY 10004 Tel: (212) 859-8524 Fax: (212) 859-4000 Date Completed: March 22, 2016 Appellate Term, First Department, Docket Number 570370/14 Criminal Court, Bronx County, Docket Number 2011BX065081 TABLE OF CONTENTS Page Table of Authorities ii ARGUMENT 1 POINT I 1 Mr. Aviles' Arguments are Preserved and are Reviewable by this Court 1 POINT II 4 The People Fail to Address the Arguments Proposed by Mr. Aviles for why Salazar was Wrongly Decided and is Otherwise Distinguishable from the Present Case 4 CONCLUSION 10 TABLE OF AUTHORITIES Page(s) Cases People v. Arthur, 22 N.Y.2d 325 (1968) 3 People v. Jurgins, 2015 NY Slip Op 09311 (Dec. 17, 2015) 2 People v. Salazar, 112 A.D.3d 5 (1st Dep't 2013) passim People v. Brisotti, 169 Misc. 2d 672 (App. Term 1st Dep't 1996) 1 Statutes C.P.L. 470.35(2) 1 ii ARG UMENT POINT I MR. AVILES' ARGUMENTS ARE PRESERVED AND ARE REVIEWABLE BY THIS COURT. The People's preservation argument is entirely without merit. Although the People appear unsure whether Mr. Aviles is challenging Salazar or distinguishing it, Mr. Aviles' arguments regarding Salazar are straightforward: (1) Salazar was incorrectly decided; and (2) Salazar is distinguishable from the present case because, unlike in Salazar, Mr. Aviles' blood-alcohol content ("BAC") was below the minimum required for a per se violation. See Resp. Br. at 18; People v. Salazar, 112 A.D.3d 5 (1st Dep't 2013); See also App. Br. at 22. These arguments are properly reviewable by this Court. See C.P.L. 470.35(2). Significantly, Mr. Aviles could not have made any arguments about Salazar in the trial court because the Appellate Division, First Department did not decide Salazar until six months after Judge Adler's motion court decision. See (Decision and Order, People v. Aviles, Docket No. 2011BX065081 (Crim. Ct. Bronx Co. April 9, 2013); People v. Salazar, 112 A.D.3d 5 (1st Dept. October 10, 2013)). Further, as the Appellate Term is bound to follow the Appellate Division, Mr. Aviles could not have asked the Appellate Term to overrule Salazar. People v. Brisotti, 169 Misc. 2d 672, 673 (App. Term 1st Dep't 1996). In contrast, this Court may do so. The People also appear to claim that Mr. Aviles did not argue in the trial court that the present case is distinct from Salazar because Mr. Aviles speaks English. As noted, Salazar had not been decided when Mr. Aviles argued to dismiss the complaint, and Mr. Aviles therefore could not have made that argument. Further, the People are misconstruing Mr. Aviles' argument. The Appellant's Brief contends that "[t]he NYPD's policy to only offer coordination tests in English amounts to intentional discrimination based on the suspect classification of national origin and is therefore subject to strict scrutiny" review. App. Br. at 23. This is the exact argument that Mr. Aviles made before the trial court in his motion to dismiss, where he argued that "whether evaluated applying strict scrutiny or rational basis review, the NYPD practice of treating non-English- speaking DWI defendants differently because of a language barrier fails to survive equal protection." Sedlander Affirmation at ¶ 12. In arguing in the motion to dismiss that strict scrutiny review applies, Mr. Aviles contended that a claim of discrimination based on national origin is appropriate when the challenged practice creates a discriminatory result against all persons who do not speak English. Id. Mr. Aviles further argued that the constitutionality of the NYPD's policy should be analyzed under strict scrutiny because it discriminates "based on his ethnicity." Id. at ¶ 15. This Court has repeatedly held that where an argument is raised in the 2 lower court, it is preserved for review on appeal. See People v. Jurgins, 2015 NY Slip Op 09311, at 3-4 (Dec. 17, 2015). Here, Mr. Aviles argues that strict scrutiny review should apply because the NYPD's policy of offering coordination tests only in English intentionally discriminates against a suspect class — based on national origin — by disproportionally affecting a significant percentage of New York City's population who are foreign-boin. This is further supported by the fact that the NYPD does not establish any criteria to determine English proficiency. These are not new arguments. Rather, these points further clarify Mr. Aviles' original argument before the trial court that the NYPD's policy discriminates based on a suspect class and should be subject to strict scrutiny. Mr. Aviles is free to alter the emphasis of his argument without running afoul of preservation rules. People v. Arthur, 22 N.Y.2d 325, 329 (1968) (holding that the mere emphasis of one prong of attack over another or a shift in theory on appeal will not constitute a failure to preserve). The People also speculate about Mr. Aviles' alleged motivations for asserting that he spoke English to the officer. Resp. Br. at 15-16. The People argue that if Mr. Aviles was "acknowledging that he did not speak English, he would have no need to concern himself with how police detect a language barrier." Resp. Br. at 16. This misses the point. The fact that Mr. Aviles may have spoken English was introduced to demonstrate that the NYPD's policy encourages 3 discrimination based on factors other than language. This factor supports the position that without a uniform test to determine English speaking ability, the NYPD's policy necessarily demands arbitrary stereotyping based on a suspect class. The People clearly considered Mr. Aviles' strict scrutiny arguments to be in play when they, unprompted, spent the majority of the equal protection section of their Appellate Term brief arguing that strict scrutiny review does not apply. See People's App. Br. at 10-17. There is no basis for the People to now argue that the strict scrutiny argument is unpreserved and their preservation argument should therefore be rejected. POINT II The People Fail to Address the Arguments Proposed by Mr. Aviles for why Salazar was Wrongly Decided and is Otherwise Distinguishable from the Present Case. In Respondent's Brief, the People do not address Mr. Aviles's arguments detailing reasons not considered by Salazar for why the NYPD's practice of offering coordination tests only in English are unconstitutional. Instead, the People rest on Salazar, as well as other pre-Salazar cases that are equally flawed. Salazar had three main holdings regarding the NYPD's policy of offering coordination tests only in English: (1) the NYPD's policy does not intentionally discriminate 4 against a suspect class and therefore strict scrutiny does not apply; (2) there is a rational basis for the NYPD's policy; and (3) with respect to due process, the NYPD's policy did not erroneously deprive the defendant of his liberties because the defendant had no right to have the police perform certain investigative functions. Salazar, 112 A.D.3d at 10, 11, 14. Mr. Aviles argues that Salazar was wrong on each of these three points. First, Mr. Aviles argues that Salazar incorrectly held that strict scrutiny should not apply to the NYPD's policy because the policy does not intentionally discriminate against a suspect class. Mr. Aviles demonstrated that the policy does intentionally discriminate against a suspect class — based on national origin — by disproportionally affecting a significant percentage of New York City's population who are foreign-born. The intentionally discriminatory effect of the policy is further supported by the fact that the NYPD has not established any criteria to help police officers determine whether a suspect's English proficiency is sufficient to take a coordination test. This makes it more likely that factors implicating national origin, such as accent, appearance, and surname are, implicitly or explicitly, considered by police officers when deciding whether to offer the test. The People do not respond to this argument. Second, Mr. Aviles argues that Salazar incorrectly held that the NYPD's discriminatory policy was rationally related to a legitimate government purpose. 5 Salazar's holding is unpersuasive because the court failed to conduct sufficient inquiry into the legitimacy of the proffered reasons for the discrimination. Salazar identified three rationales for the discriminatory policy: (1) that conducting the test through an interpreter who was not trained in conducting the test could compromise the reliability of the test; (2) that it is inherently impracticable to conduct coordination tests though interpreters; and (3) that requiring the NYPD to have qualified interpreters on call on a 24/7 basis would impose substantial administrative burdens. Id. at 11. In Appellant's Brief, Mr. Aviles demonstrated that these three rationales are insufficient. As the brief explains, conducting the coordination test through an interpreter cannot compromise the reliability of the test because the main purpose of the test is to provide the finder of fact with objective evidence of how the suspect acted while allegedly under the influence of alcohol. It is not, as the People argue, to provide "additional corroboration . . that the defendant was operating a vehicle while intoxicated," because the defendant has already been placed under arrest when the coordination test is given. Resp. Br. at 46. Furthermore, it is not inherently impractical and substantially burdensome to provide interpreting services for administering coordination tests because the NYPD already has in place a Language Access Plan to do exactly that. Under the NYPD's Language Access Plan, police officers have real time access to 6 interpreting services that could be provided by telephone or video. The People do not respond to this argument. Third, Mr. Aviles argues that Salazar incorrectly held that the NYPD's policy does not risk erroneous deprivation of the defendant's liberties. Salazar states that defendants do not have the right to have the police perform investigative functions such as a coordination test; therefore, not offering the test cannot erroneously deprive defendants of their liberties. Mr. Aviles, however, demonstrated that a coordination test is not a mere investigative function but is part of a quasi-judicial or administrative proceeding during which due process rights attach. Mr. Aviles argues that police officers' conduct and actions that take place at the I.D.T.U. are not merely investigatory because a suspect is placed under arrest before any I.D.T.U. testing is performed, and because officers' conduct at the I.D.T.U. is governed by specific procedures and protocols established by the NYPD that call for an administration of a coordination test. The People do not respond to this argument. Notwithstanding the foregoing reasons for why Salazar was incorrectly decided, Mr. Aviles also clearly explains that his BAC level distinguishes this case from Salazar. In Salazar, the defendant's BAC was nearly three times the legal limit. A coordination test was therefore highly unlikely to produce exculpatory evidence. In contrast, Mr. Aviles' breathalyzer test was .06, which is below the 7 minimum for a per se violation and is in fact prima facie evidence that Mr. Aviles was not intoxicated. This distinction is important. In cases where a defendant's BAC is below the minimum level required for a violation, the results of the coordination test could be exculpatory, a factor which is highly relevant to the rational basis analysis under the equal protection clause and the erroneous deprivation analysis under the due process clause. The People do not address this argument directly, but rather argue that a coordination test in this case cannot be said to have been essential to the determination of guilt because the defendant was involved in an accident with a police car (that was entering into traffic while Mr. Aviles had the right of way) and the arresting officer claimed that Mr. Aviles had a strong odor of alcohol, had slurred speech, and was unsteady on his feet. Resp. Br. at 47. In addition, the People argue that the chemical test was performed nearly three hours after the accident, which may have resulted in the low reading. Id. at 48. Of course, the finder of fact can consider these allegations in determining whether Mr. Aviles was impaired or intoxicated under the statute. However, these are subjective observations. The purpose of the coordination test is to provide the finder of fact observable objective evidence of how the suspect looked and acted. Denying Mr. Aviles an opportunity to present this potentially exculpatory evidence by only offering the coordination test in English violates his constitutional rights. 8 The foregoing demonstrates that Salazar was incorrectly decided and should be overturned by this Court. Furthermore, this Court should find that Salazar is inapplicable to the present case and reverse the Appellate Term, First Department. 9 CONCLUSION FOR THE FOREGOING REASONS, THIS COURT SHOULD REVERSE THE APPELLATE TERM, FIRST DEPARTMENT'S REVERSAL OF THE TRIAL COURT'S DECISION GRANTING MR. AVILES' MOTION TO DISMISS. Dated: New York, New York March 22, 2016 Respectfully submitted, V. MARIKA MEIS, ESQ. The Bronx Defenders 360 East 161st Street Bronx, New York 10451 Tel: (718) 838-7846 Fax: (718) 665-0100 ALEKSANDR B. LIVSHITS, ESQ. Of Counsel Fried, Frank, Harris, Shriver & Jacobson LLP 1 New York Plaza New York, NY 10004 Tel: (212) 859-8524 Fax: (212) 859-4000 10