The People, Appellant,v.Carlos Palencia, Respondent.

Brief

N.Y.June 21, 2016

APL-2015-00330 Yael V. Levy Donald Berk To be argued by: Donald Berk (10 minutes) NEW YORK SUPREME COURT Appellate Division ·Second Department THE PEOPLE OF THE STATE OF NEW YORK, ·against- CARLOS PALENCIA, Respondent, A.D. No. 2013-08636 Ind. No. 1490NI2012 Defendant-Appellant. RESPONDENT'S BRIEF KATHLEEN M. RICE District Attorney, Nassau County Attorney for Respondent 262 Old Country Road Mineola, New York 11501 (516) 571-3800 Assistant District Attorneys of Counsel T A B L E 0 F C 0 N T E N T S Preliminary Statement ......................................... i Statement of Facts Introduction ............................................. 1 The Pre-Trial Hearing .................................... 2 The People's Case ...................................... 3 Defendant's Case ....................................... 7 The Court's Decision ................................... 7 The Trial The People's Case ...................................... 7 Defendant's Case ...................................... 19 The Decision Admitting the PBT Evidence ............... 19 The Limiting Instruction .............................. 20 The Verdict and Sentencing .............................. 21 Point I The Court Properly Admitted Evidence That Defendant Was Informed That His PBT Result Was Positive, Even Without Proof Of The Device's Calibration, To Prove Defendant's Consciousness Of Guilt In Subsequently Refusing To Supply An Adequate Breath Sample For Chemical Test Analysis ................................................ 22 Point II Because Defendant Refused To Submit To A Chemical Breath Test, The Prosecution Was Not Required To Prove That The Testing Instrument Was Properly Calibrated, But Only That It was Functioning Properly, And There Was Ample Evidence Of The Latter .................................................. 30 Point III The Court Properly Admitted, As Evidence Of Defendant's Consciousness Of Guilt, Testimony That Defendant Was Told .He Failed The PBT Test And Evidence That He Refused By His Conduct to Submit To The Chemical Breath Test ...................... 36 Point IV The Hearing Court Properly Determined That Trooper Wallace Advised Defendant Of The Refusal Warnings In Clear And Unequivocal Language .............. 39 Point V The Hearing Court's Determination That Defendant, By Blowing Only Short Puffs Of Breath Into The Chemical Breath Testing Instrument, Persistently Refused To Submit To The Test Was Well Supported By The Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4 7 Conclusion ................................................... 53 Certificate of Compliance NEW YORK SUPREME COURT Appellate Division ·Second Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, ·against· CARLOS PALENCIA, Defendant-Appellant. RESPONDENT'S BRIEF Preliminary Statement Defendant Carlos Palencia appeals from a judgment of the Supreme Court, Nassau County, entered on September 13, 2 013, convicting him, following a jury trial, of operating a motor vehicle while under the influence of alcohol, as a felony (Vehicle and Traffic Law ["VTL"] § 1192 [3]). The Court (Ayres, J., at pre-trial hearing, spergel, J., at trial and sentencing) sentenced defendant to a definite sentence of six months in jail and five years of probation. On September 30, 2013, this Court, pursuant to criminal Procedure Law section 460.50, stayed the execution of judgment pending the determination of this appeal. There were no co-defendants. i S T A T E M E N T 0 F F A C T S Introduction At 5:40 a.m., driving his SUV while under the influence of alcohol, defendant drifted from lane to lane on the Southern State Parkway and then rear-ended another vehicle. When a state trooper arrived at the scene, he observed that defendant had red, watery eyes, slurred speech, and poor balance, and smelled of an alcoholic beverage. Defendant admitted that he had been drinking beer before the crash. He exhibited involuntary jerking in each eyeball, a sign of intoxication, on all three nystagmus tests. He performed poorly on two divided-attention tests. When he breathed into a preliminary breath test ( "PBT") device, 1 the device revealed that alcohol was present in his breath. The trooper arrested defendant for operating a motor vehicle while under the influence of alcohol ("DWI"). Defendant agreed to submit to a chemical breath test at the state police barracks. Despite having five opportunities to provide a sufficient breath sample, however, defendant each time failed to follow instructions that he blow an adequate volume of breath into the testing instrument. 1 PBT is sometimes used as an abbreviation for "portable breath test." 1 Defendant was indicted for operating a motor vehicle while under the influence of alcohol (VTL § 1192 [3] ) 2 and following another vehicle too closely (VTL § 112 9 [a] ) . After a jury trial, defendant was convicted of driving while intoxicated.' On appeal, defendant advances five claims: 1) the court erred in admitting evidence of the PBT even though there was no proof that the PBT device was working properly; 2) the court erred in allowing evidence of defendant's refusal to submit to the chemical breath test even though there was no proof that the testing instrument was working properly; 3) the court erred in admitting PBT evidence where the theory of prosecution was that defendant refused to submit to a chemical breath test; 4) the finding that the breath test refusal warnings were administered in clear and unequivocal language was against the weight of the evidence; and 5) the evidence at the pre-trial hearing and trial did not establish that defendant persistently refused to submit to the chemical breath test. These contentions are meritless. The Pre-Trial Hearing The court conducted a pre-trial Dunaway/Huntley/DWI-Refusal hearing to determine defendant's motions to suppress his arrest, 2 Defendant had a prior conviction, in 2005, for driving while intoxicated, making the charge in this case a felony. 3 The other count was dismissed pursuant to a motion for a trial order of dismissal. 2 his subsequent statements to police, and his refusal to take a chemical breath test. The People's Case At about 5:40 a.m. on March 2, 2012, New York State Trooper THOMAS WALLACE responded to a traffic accident on the westbound Southern State Parkway, just east of Exit 28, the exit for Wantagh Avenue (Wallace: H.ll, 35). 4 When he arrived, he observed two cars on the shoulder of the three-lane highway, to the right of a fourth, exit lane (Wallace: H.12). There was front-end damage to a Ford Explorer and rear-end damage to the car in front of it, a Jeep (Wallace: H. 4 7) . Trooper Wallace approached defendant, who was standing near the Ford Explorer, whose keys were in the ignition and whose engine was running (Wallace: H.13-14, 47, 48). In response to the trooper's questions, defendant stated that he had been driving home from a friend's house and had drunk two beers at work (Wallace: H.14). Trooper Wallace noticed that defendant had red, watery eyes and the odor of an alcoholic beverage coming from him (Wallace: H.14) . On a flat, dirt area of the parkway's shoulder, Wallace administered standardized field sobriety ,tests ("SFSTs") to 4 Numbers in parentheses preceded by "H" refer to the minutes of the pre- trial hearing, numbers in parentheses preceded by "T" refer to the minutes of the trial, and numbers in parentheses preceded by "S" refer to the minutes of the sentencing proceeding. Names preceding the numerical references refer to the witnesses who testified. 3 defendant (Wallace: H.15). Before each test, he gave defendant instructions in English and demonstrated how to perform it; defendant appeared to understand the instructions and was able to communicate in English with Wallace (Wallace: H.16, 20-21, 22-23' 49-51, 105). When defendant performed the horizontal gaze nystagmus test, he exhibited involuntary jerking in each of his eyes -- an indication of possible intoxication during the smooth- pursuit, maximum-deviation, and nystagmus-prior-to-forty-five- degrees aspects of the test (Wallace: H.15-20). During the walk-and-turn test, defendant swayed while waiting to take the test, started walking before he was instructed to do so, raised his arms away from the sides of his body, stepped off an imaginary straight line, missed placing his heel to his toe, and, prior to turning, took eleven steps instead of the nine he had been instructed to take (Wallace: H.20-21). During the one- legged-stand test, defendant swayed, used his arms for balance, and dropped his foot after six seconds and after nine seconds (Wallace: H.21~22, 92). Wallace also administered a PBT to defendant; the PBT device registered in excess of . 08 percent blood alcohol content ("BAC") (Wallace: H. 51, 103-04, 108). Based upon defendant's performance of these tests, and the trooper's observations of him, Wallace believed defendant was 4 intoxicated; he arrested defendant and placed him in the trooper's car (Wallace: H.23, 51). Trooper Wallace read defendant DWI refusal warnings at 6:07 a.m., asking defendant if he would submit to a chemical test and explaining the consequences of a refusal to take the test (Wallace: H.23, 26-27, 51, 74, 101-02). Defendant told Wallace that he understood the warnings and that he would submit to the chemical test (Wallace: H.27, 52). Then Wallace read defendant Miranda warnings, and defendant told the trooper that he understood the warnings and was willing to speak with him (Wallace: H.28). At 6: 09 a.m., Wallace drove defendant to the State Police barracks in Farmingdale, arriving at 6:16 a.m. (Wallace: H.28, 55, 67-68). There, he observed defendant for approximately twenty minutes while he readied a Draeger chemical breath testing instrument ("the Draeger") for a BAC test of defendant's breath (Wallace: H.28-29, 56, 67-68, 73). The trooper then gave defendant instructions regarding how to give a breath sample, telling defendant to blow into the mouthpiece until Wallace told him to stop (Wallace: H.30, 93). To obtain a sufficient sample for the Draeger to ascertain BAC, a person must breathe into the mouthpiece for at least four and one-half seconds (Wallace: H.94). At 6:38 a.m., defendant exhaled briefly into the Draeger and stopped before being told to do so (Wallace: H. 30, 66) . 5 Wallace reset the instrument and had defendant give another breath sample. Again, defendant failed to give a sufficient quantity of breath (Wallace: H.30). The trooper reset the instrument and defendant, for a third time, blew into the instrument but did not give a full breath sample (Wallace: H.31- 32) . Wallace then had the Draeger print out a written record of these events ("Test 343") (Wallace: H.66, 80-83). Trooper Wallace reread part of the DWI refusal warnings, telling defendant that, if he did not give a proper breath sample, it would be considered a refusal, his license would be· suspended or revoked, and the refusal could be introduced into evidence against him (Wallace: H.32-33, 74, 78-79). Defendant said that he would give a breath sample (Wallace: H.33). In his fourth attempt, defendant also blew an insufficient amount of breath for a proper test (Wallace: H. 33) . Wallace reset the breath instrument and, at 6:59a.m., defendant exhaled into it a fifth time, but only gave half of a breath (Wallace: H.34, 59). The trooper then obtained a second printout from the Draeger ("Test 344"). Wallace deemed defendant to have refused the breath test because in none of his five attempts did defendant give a sufficient breath sample and defendant had told the trooper after the fifth attempt that "he couldn't blow any longer" (Wallace: H.34, 83-84). 6 Wallace asked defendant if he had been drinking alcohol (Wallace: H.34). Defendant responded that he drank two beers at one o'clock in the afternoon on the previous day (Wallace: H.34, 77-78). Defendant's Case Defendant did not present any evidence. The Court's Decision The court determined that there was probable cause to arrest defendant for DWI and that defendant's statements made at the scene were non-custodial and were admissible at trial (H.125-27). It also found that "defendant was repeatedly advised of the consequences of his refusal in clear and unequivocal language [and] that he understood those instructions, as he had the instructions given in English throughout the course of the interaction between Trooper Wallace and the defendant" (H.128). Accordingly, evidence of defendant's refusal to submit to a chemical breath test was admissible at trial (H.17-30). The Trial The People's Case On Sunday, March 25, 2012, at about 5:30 a.m., JURIS KUPCS was driving his Jeep westbound in the Southern State Parkway's exit lane towards Wantagh Avenue in Nassau County (~upcs: T.115- 16, 133). Looking in his rearview mirror, Kupcs noticed a 7 vehicle, a few hundred yards behind him, weaving in and out between the exit lane and the parkway's right lane (Kupcs: T.l16, 119, 133-34). As Kupcs got to the clover-leaf exit, travelling thirty-five to forty miles per hour, his "car filled up with lights and [he] heard the roar of an engine" (Kupcs: T.119-20, 132). Defendant's Ford Explorer rear-ended Kupcs' s Jeep, causing the top of the Jeep's front seat to break; Kupcs continued up the exit ramp, pulled over, and parked (Kupcs: T.120, 129, 132). Although Kupcs was later able to drive away from the scene, the Jeep was totaled: the doors were locked shut, the rear bumper was down, the lip gate was "mauled," a window was shattered, and there was an indentation in the gas tank (Kupcs: T.127-28). When Kupcs walked back towards defendant's vehicle, he observed the Explorer positioned sideways, with its front, damaged end protruding five feet into the parkway's outer lane (Kupcs: T.123-24, 129). An Hispanic man 5 was standing next to the Explorer, talking on his phone (Kupcs: T.123, 129). Kupcs told him, for his safety, to move away from the vehicle and the man did so (Kupcs: T.123-24, 134). The two men never got nearer to each other than fifteen feet and Kupcs had no other interactions with the man (Kupcs: T.124-25, 135). A Nassau 5 Kupcs was unable to make an in-court identification of defendant (T.124). 8 County police officer drove down the exit ramp and positioned her car, with its lights on, behind defendant's Explorer to block it from oncoming traffic (Kupcs: T.125). Two New York State Troopers quickly arrived; one spoke with Kupcs and Trooper THOMAS WALLACE had a conversation with defendant, who was standing near the Explorer, swaying badly (Kupcs: T.125-26; Wallace T.144, 211, 213-15). Defendant's Explorer had front-end damage (Wallace: T.144). All of Wallace's and defendant's conversations were in the English language; Wallace did not know how to speak Spanish and defendant spoke in English, with an accent (Wallace: T.163, 224-25, 237-38, 354-55). Defendant told Wallace his name and said that he was not physically hurt, had no prior injuries, had been driving the Explorer from a friend's house to his home, and had drunk two beers (Wallace: T.145-46, 148, 149-50). From a distance of a few feet, Trooper Wallace observed that defendant had red, watery eyes, smelled of an alcoholic beverage, and was unsteady on his feet (Wallace: T.147, 227-28, 238, 328, 330). Wallace had received training in, and was certified to administer SFST and PBT tests (Wallace: T.139-40, 206). The trooper asked defendant to perform a series of SFSTs on a flat area of the parkway's shoulder to help him determine whether defendant was intoxicated (Wallace: T.148-50, 241-43, 246-48, 258-59, 404). Prior to the tests, the trooper observed that 9 defendant had equal pupil sizes and equal tracking of his eyes, indicating that he was not suffering from a head injury or trauma (Wallace: T.l51-52, 236, 258). Wallace administered three horizontal gaze nystagmus tests to see if defendant's eyes would involuntarily jerk as they tracked an object (Wallace: T.150, 260, 265). On the test for lack of smooth pursuit, defendant exhibited nystagmus in each eye (Wallace: T.l53-54, 262-64). Testing defendant for nystagmus at maximum deviation, Wallace also observed nystagmus in each of defendant's eyes (Wallace: T.l54-55, 264-65). And, while checking for nystagmus prior to a forty-five degree angle, the trooper again noticed nystagmus in each of defendant's eyes (Wallace: T.l55-56, 265). Thus, defendant exhibited six clues of intoxication; two or more indicate a BAC of over .10 percent (Wallace: T.154). Next, the trooper administered two divided-attention tests (Wallace: T. 14 9) . He began to instruct defendant about how to perform the walk-and-turn test, but defendant began to walk before he was told to do so (Wallace: T.156-58, 260-61, 267-69). Defendant took eleven steps prior to turning -- instead of the nine steps Wallace told him to take -- used his arms for balance despite being told not to move them, missed putting the heel of one foot to the toe of his other foot, turned in the wrong direction, and stepped one and one-half to two inches off an 10 imaginary straight line while he was walking (Wallace: T.157-59, 267-73, 277-79, 284-85, 317, 320). This performance indicated to Wallace that defendant was intoxicated (Wallace: T.159). Then Wallace gave defendant instructions about the one- legged-stand test and demonstrated how to perform it (Wallace: T.159-60, 341-42). During the test, defendant dropped his foot after six seconds and after nine seconds, and used his arms for balance in violation of Wallace's instructions (Wallace: T.160, 245) . Finally, at 6:04 a.m., the trooper asked defendant to breathe into a PBT device (a Draeger 6510) that is on the New York State Department of Health's conforming list of instruments approved to test for BAC, 6 and for which Wallace had received training (Wallace: T.160-61, 218' 348-49). Prior to administering the PBT, Wallace observed defendant for fifteen minutes (Wallace: T.350-51). The trooper did not know when the device he used was last calibrated (Wallace: T.351). The instrument had been stored at the police barracks, and Wallace brought it with him at the beginning of his shift that day (Wallace: T.161, 351). The trooper turned it on, causing it to "warm up," and saw that it displayed a message that it was ready to receive a breath sample; this indicated to Wallace that the device was working properly (Wallace: T.161-62). He then 6 See 10 NYCRR § 59.4(b). 11 inserted a new straw into it and told defendant "to take a nice breath in, put his lips on and make a tight seal and blow his air out until [Wallace told] him to stop" (Wallace: T.161-62). Defendant complied with the instructions. The instrument registered the presence of alcohol in defendant's breath and Trooper Wallace told that to defendant (Wallace: T.162-63, 167). Based upon his interactions with defendant, Wallace formed the opinion that defendant was intoxicated (Wallace: 164-65, 332) . The trooper arrested defendant for DWI and placed him into his police vehicle (Wallace: T.165, 354). From a card issued by the New York State Police, Trooper Wallace read defendant DWI refusal warnings: he told defendant that he was under arrest for DWI; asked him to submit to a chemical test to determine his BAC; explained that if defendant refused to take the test, his driver license would be suspended and then revoked regardless of whether he was found guilty of the DWI charge; and stated that if defendant refused to take the test, that fact could be used against him in court (Wallace: T.l65-66, 168-69, 354, 371). Defendant said that he understood the warnings and would submit to the chemical test (Wallace: T.167). From that same card, Wallace then read Miranda warnings to defendant, who told the trooper that he understood the warnings and was willing to speak to him (Wallace: T. 165-66, 169-70). 12 Wallace drove defendant to the state police barracks in Farmingdale, arriving at about 6:16 a.m. (Wallace: T.170, 363). He seated defendant on a bench and sat at a desk in front of him (Wallace: T.171). There, the trooper prepared a Draeger, a chemical breath testing instrument, to receive a breath sample from defendant (Wallace: T.171, 367). Trooper Wallace had received training in the operation of, and was certified to use, the Draeger (Wallace: T.139-40; 174-75, 376). He pressed the Draeger's start button and it warmed up, conducted a self- diagnostic test, and then displayed the message "please blow," indicating that the instrument was working properly; had it not been working properly, it would have displayed "an error message" and prevented a test from being administered (Wallace: T .171-72, 176-77, 367, 377-79). Wallace observed defendant for approximately twenty minutes to ensure that defendant was not burping or putting anything in his mouth that might lead to an inaccurate BAC result (Wallace: T.173-74, 367, 369-70). The Draeger required that breath be introduced into it for a minimum of four and one-half seconds, and a minimum of two and one-half liters, to have a sufficient sample from which it would be able to determine BAC (Wallace: T. 17 8, 3 9 6) . The trooper brought defendant to the instrument, put a mouthpiece on it, and explained to defendant that he should keep his hands at his side, take a deep breath, put his lips tightly around the 13 mouthpiece that Wallace would hold, and blow into it until the trooper told him to stop (Wallace: T.l75-76). When defendant blew into the Draeger, it did not register any reading because defendant "put his mouth on [the mouthpiece] and went puff and just gave half a blow" (Wallace: T.177, 375). Wallace had defendant step away from the Draeger until it "check [ed] itself again" and then indicated "please blow" (Wallace: T.l79-80). The instrument would not have displayed that message if it had not cleared out the previous air sample introduced into it (Wallace: T.385). For a second time, the trooper put a new mouthpiece on the Draeger and instructed defendant to take a deep breath, seal his lips tightly around the mouthpiece, and blow a continuous breath into the instrument until Wallace told him to stop (Wallace: T.180). Defendant, however, "just gave a puff of air," and the instrument, again, did not register that it had received an adequate breath sample (Wallace: T.180). Repeating the process for a third time, Wallace moved defendant away from the breath testing instrument, waited for the Draeger to reset itself, and asked defendant if he would give another breath sample; defendant said he would (Wallace: T.l80). Wallace put another new mouthpiece on the instrument and told defendant to take a deep breath, seal his lips tightly around the mouthpiece, and exhale all his breath out until the 14 trooper told him to stop (Wallace: T .181) . Defendant "gave a little blow of air out" and the instrument did not, for the third time, register a sample (Wallace: T.l81). After this third attempt to get a proper breath sample from defendant, Wallace pressed the Draeger's "Refusal" key and then its "Not Completed" key, creating a printout marked as "Test 343"; it indicated that defendant's breath test was not completed (Wallace: T.l82, 373-74, 384, 386-89, 393-95, 403, 405). These three attempts took place between 6:40 a.m. and 6:53 a.m. (Wallace: T.384). Wallace reread a portion of the DWI refusal warnings to defendant, again advising him of the consequences of a refusal to submit to a chemical test (Wallace: T.lBl-82). At 6:54a.m., the Draeger indicated that it was ready to accept another breath sample and the trooper put a new mouthpiece on it (Wallace: T.l83-84, 400, 403, 405-06). For the fourth time, Trooper Wallace told defendant that he should take a deep breath, tightly seal his lips around the mouthpiece, and blow until Wallace told him to stop (Wallace: T.184). Defendant gave "another blow of just a short duration," which did not register on the instrument (Wallace: T.184). Repeating the process for the fifth and final time, the Draeger reset itself and was ready to accept a new breath sample, and Wallace gave defendant another opportunity to submit 15 to the chemical breath test (Wallace: T. 184-85) . The trooper put a new mouthpiece on the instrument and again instructed defendant to take a deep breath, tightly seal his lips around the mouthpiece, and exhale continuously until the trooper told him to stop (Wallace: T. 184) . Again, defendant "gave another puff of air" which did not supply a proper breath sample (Wallace: T.184). At 6:59a.m., defendant told Wallace that he could not blow any longer (Wallace: T.184, 400). The trooper determined that the breath test's result was a refusal and had the Draeger print out a second report, marked as "Test 344," which indicated a "Refusal" (Wallace: T.401-02). Neither of the two printouts reflected every action taken on the Draeger for instance, they did not show each of the five attempts to capture an adequate sample of defendant's breath (Wallace: T.379, 384, 395, 406). Each of defendant' s five exhalations into the Draeger was shorter than the breath he had blown into the PET at the crash scene (Wallace: T.185-86). After the five unsuccessful attempts to get defendant to give a sufficient breath sample, Trooper Wallace asked defendant several questions. Defendant said that he drank two beers at about 1:00 p.m. on the previous day and drank no alcohol after the collision. He told Wallace that he had been driving from his friend's house to his home and had slept the previous night for eight hours. When Wallace asked him if he had any physical 16 defects, or if he was a diabetic or epileptic, defendant said that he did not understand the questions. Also, defendant told the trooper that he did not know if he was receiving medical or dental treatment, but did say that he had received cortisone the previous day (Wallace: T.188-90, 355-57, 363). Trooper MAUREEN CANGIANO maintains the State Police's Draeger breath testing instruments and trains and recertifies troopers in using the instruments (Cangiano: T.416-18). It is possible to have more than one attempted breath test recorded on one printout (Cangiano: T.423). When a breath test is conducted, the Draeger proceeds through a certain .order of tests: it runs a diagnostic check, pulls room air into its sample chamber to check for the presence of any interfering substances, clears the air out of its chamber, conducts a simulation test of a reference sample containing .10 percent of alcohol, clears that air out of the sample chamber, and is then ready for the introduction into the sample chamber of the subject's breath so that it may be tested for its BAC (Cangiano: T.421C23, 436, 455, 458). When a subject gives a breath sample with less than the minimum volume or flow rate required for the instrument to run a BAC test, the Draeger discontinues the test, displays a message of an insufficient sample, goes through its diagnostic checks, pulls room air into the chamber to clear it, 17 and then indicates that it is ready for a new sample (Cangiano: T. 423). Cangiano was familiar with Draeger printouts and the information contained in them (Cangiano: T.418-20). Not every procedural step is reflected on the instrument's printouts and it is possible that a single printout can reflect a period when multiple breath samples were introduced into the Draeger (Cangiano: T.423, 431). Test 343's printout was consistent with defendant having given three insufficient breath samples between 6:40 a.m. and 6:53 a.m. and the Draeger's operator then deeming the test to be incomplete (Cangiano: T.422-26). Using the same Draeger instrument that Trooper Wallace utilized with defendant, Cangiano ran a series of tests that mimicked the events that were indicated on Tests 343 and 344 (Cangiano: T.427-29, 434, 437, 439). First, the trooper separately introduced three short breaths into the instrument's sample chamber, allowing the instrument to clear the sample chamber in between each one, and then pressed the Draeger's "Refusal" key and the "Not Completed" key (Cangiano: T.429-30). That process took four to five minutes (Cangiano: T.430). Cangiano printed out a record of those actions; the printout did not indicate when each of the three samples was blown into the chamber, and there was only one printout for the three actions (Cangiano: T.431-32). 18 After the Draeger reset itself, Cangiano introduced two more, separate short breaths into the sample chamber, with the instrument clearing out the first sample before the second one was blown (Cangiano: T.432). The instrument again indicated that each sample's breath volume was insufficient and the trooper then pressed the "Refusal" key; these actions took about four minutes (Cangiano: T.432). Cangiano had the instrument issue a printout, which did not indicate that two separate samples were introduced (Cangiano: T.432-33). Defendant's Case Defendant did not present any evidence. The Decision Admitting the PBT Evidence On May, 31, 2013, prior to jury selection, the prosecutor moved in limine to allow testimony that defendant gave a sufficient breath sample when he took the PBT and that the PBT device indicated the presence of alcohol in his breath. The prosecutor wanted to offer that evidence to show defendant's state of mind -- his consciousness of guilt -- when he exhaled only five separate short puffs of breath, that were insufficient to register a BAC reading, into the Draeger (T.23-24, 30-31). The court determined that it would allow testimony that the test showed that alcohol was present in defendant's breath but precluded evidence of the level of alcohol indicated (T.34-36). The court stated that it would give the jury a limiting 19 instruction and asked both sides for suggestions about the timing and wording of the instruction (T.37-39). On June 10, the court issued a written decision. It found that PBT evidence would be admissible to show defendant's state of mind if the prosecutor proved at trial "the reliability of the [PBT] device by confirming that it is on the [New York State Department of Health's] conforming list; that the test was administered properly; that the test was administered by a properly qualified administrator; and that the Defendant had knowledge that the test results showed a presence of alcohol." People v. Palencia, Decision and Order, June 10, 2013, at 4 (Spergel, J.) ("Decision") . In addition, the court determined that any prejudice resulting from the admission of the evidence would be ameliorated by "a jury instruction that explains the limited scope for which the results are being offered." Id. The Limiting Instruction Prior to the jury's deliberations, the court read the panel the Criminal Jury Instructions ( "CJI") charge pertaining to the driving while intoxicated count, including the refusal charge. See CJI (2d) [NY], VTL § 1192 (3) Driving While Intoxicated (T.555). The court then told the jury: In this case the People offered the results of a portable breath test. That was done for the limited purpose of proving the defendant's state of mind for his subsequent conduct. The results of the portable breath 20 (T.556). test -- you are not to rely upon the results of the portable breath test in determining intoxication The Verdict and Sentencing The jury returned a guilty verdict for operating a motor vehicle while under the influence of alcohol, as a felony, the only charge before it (T.568-70). On September 13, 2013, the court sentenced defendant to six months' incarceration and five years of probation (S .4). The sentence was stayed, pending appeal, by order of this Court. 21 POINT I THE COURT PROPERLY ADMITTED EVIDENCE THAT DEFENDANT WAS INFORMED THAT HIS PBT RESULT WAS POSITIVE, EVEN WITHOUT PROOF OF THE DEVICE'S CALIBRATION, TO PROVE DEFENDANT'S CONSCIOUSNESS OF GUILT IN SUBSEQUENTLY REFUSING TO SUPPLY AN ADEQUATE BREATH SAMPLE FOR CHEMICAL TEST ANALYSIS (answering defendant's brief, Point I). This Court should reject defendant's contention that the trial court should not have allowed testimony that the PBT indicated that alcohol was present in defendant's breath because there was no proof that the PET device "was properly working, calibrated and administered correctly." Defendant's brief at 17. The trial court did not admit the PBT' s BAC reading. It merely permitted the prosecutor to elicit testimony that, when defendant took the PBT, he followed instructions to produce a sufficient breath sample and was then told that alcohol . was present in his breath. This evidence was admitted not to prove intoxication, but for the limited purpose of establishing defendant's consciousness of guilt in refusing, by his conduct, to provide an adequate breath sample during the Draeger chemical breath test at the State Police barracks. See Decision at 4. The court's evidentiary ruling and its limiting instruction to the jury were proper. Because the reliability of the PBT device was not an issue, defendant's contention that calibration evidence was required is a red herring. His argument is based upon the principle that 22 BAC evidence is inadmissible to prove intoxication without proof that the breath testing instrument is properly calibrated. Here, by contrast, the jury was instructed to consider the evidence that the PBT device detected alcohol in defendant's breath, and that defendant was so informed, for the limited purpose of showing his state of mind when he subsequently refused to submit to the Draeger test. In People v. Adler, 145 A.D.2d 943 (4th Dept. 1988), a DWI suspect refused to submit to a chemical breath test by refusing to give a sufficient breath sample. Evidence of the refusal, relevant to show the defendant's consciousness of guilt, was found admissible even absent proof of the instrument's calibration that is normally required when a breath test result is admitted into evidence because, "[i] n the case of a refusal, the People are not relying upon the accuracy of the test result as prima facie proof that defendant was intoxicated." Id. at 944. Here, too, the information Trooper Wallace imparted to defendant regarding the PBT, whether or not it was accurate, was properly admitted to demonstrate defendant's state of mind when he repeatedly blew an insufficient amount of breath into the Draeger. PBTs are sufficiently reliable to indicate the presence of alcohol in a person's breath for the purpose of establishing probable cause for an arrest. See People v. Mojica, 62 A.D.3d 23 100, 114 (2d Dept. 2009). Moreover, evidence regarding PBTs is admissible at trial to show a defendant's state of mind. In People v. MacDonald, 227 A.D.2d 672 (3d Dept.), aff'd, 89 N.Y. 908 (1996), the defendant initially refused to take a PBT at the scene and when he subsequently took it, failed to complete it properly. Although the specific result of the PBT would have been inadmissible at trial, the "defendant's at tempts to avoid giving an adequate breath sample for alco-sensor 7 testing was properly admitted as consciousness of guilt." Id., 89 N.Y.2d at 910. Here, as in Adler and MacDonald, breath test evidence was admitted, not as proof of defendant's intoxication, but to establish consciousness of guilt, and no specific BAC reading of defendant's breath was elicited. Thus, the PBT's "ability to calibrate defendant's blood alcohol content accurately [was] not an issue." Adler, 145 A.D.2d at 944. As the trial court found, the information communicated to defendant about the PBT was probative of defendant's state of mind. Decision at 4. And, just as in MacDonald, 89 N.Y.2d at 910, the court gave a limiting instruction explaining the purpose of the evidence. The court expressly instructed the jury that it was "not to rely upon the results of the portable breath test in determining 7 An alco-sensor is a type of PBT. See, e.g., People v. Hargobind, 34 Misc. 3d 1237(A), 2012 WL 762897, at *3 (Crim. Ct. Kings County, 2 o 12) . 24 intoxication• (T.555-56). It specified that the PBT evidence should be considered only "for the limited purpose of proving the defendant's state of mind for his subsequent conduct. • Id. It is presumed that the jury followed those instructions. See People v. Gause, 19 N.Y.3d 390, 397 (2012) (quoting People v. Baker, 14N.Y.3d266, 274 [2010]). It is true that the prosecution, when seeking to prove intoxication via evidence of the "result" of a chemical breath test, must establish that the testing instrument "was in proper working order at the time the test was administered." Freeland, 68 N.Y.2d 699, 700 (1986). Proof that People v. the breath testing instrument was in proper calibration is evidence of this. The "primary objective• of the calibration foundational requirement for the admission of breath test results "is to provide the factfinder a basis to determine whether the particular instrument used produced reliable results in a specific instance.• People v. Boscic, 15 N.Y.3d 494, 496 (2010). Had the prosecutor sought to elicit the specific PBT reading at trial as proof of intoxication, a necessary predicate to its introduction would have been a showing that the device had been recently calibrated. Yet here, testimony that defendant was told the PBT revealed the presence of alcohol, as the court instructed the jury, was admitted to establish 25 defendant's state of mind during the Draeger test: that he intentionally did not provide a sufficient breath sample because he believed -- based on what Wallace told him about the PBT -- that he was guilty of driving while intoxicated. Defendant cites a number of trial court decisions in an attempt to support his position. Those cases, however, involved situations in which the prosecution sought to introduce PBT results to prove intoxication. In some, courts precluded evidence of PBT tests as proof of intoxication. See People v. Santana, 31 Misc. 3d 1232(A), 2011 WL 2119503, at *3 (Crim. Ct. N.Y. County, 2011) (PBT results inadmissible "to prove [prosecution's] case in chief") ; People v. Schook, 16 Mise. 3d 1113(A), 2007 WL 2108043, at *4 (Dist. ct. Suffolk County, 2007) (PBT results "are not probative of the issue of intoxication and are not admissible at trial unless probative of some other issue") (internal citations omitted); People v. Reed, 5 Misc. 3d 1032 (A), 2004 WL 2954905, at *7 (Sup. Ct. Bronx County 2004) (PBT "results cannot be used as evidence in chief of defendant's intoxication"). In others, courts held that PBT results would be admissible to prove intoxication only if they were shown to have been, inter alia, properly calibrated. See People v. Harbogind, 34 Misc. 3d 1237(A), 2012 WL 762897, at *4 (Crim. Ct. Kings County, 2012) (where defendant charged with VTL § 1192[2] refused 26 chemical test, PBT result admissible if device properly calibrated) ; People v. Aliaj, 33 Mise. 3d 682, 693 (Sup. Ct. N.Y. County, 2012) (PBT results admissible at trial if device properly calibrated); People v. Jones, 33 Misc. 3d 181, 182, 186 (Crim. Ct. N.Y. County, 2011) (evidence that defendant registered .09 percent EAC on PBT admissible if device shown to be calibrated); see also People v. Ginther, 42 Mise. 3d 664, 670 (Sup. Ct. Richmond County, 2013) (foundational requirements go to weight, not admissibility). Here, the trial testimony satisfied the foundational requirements to admit the PET evidence, as discussed in the hearing court's June 10, 2013 decision. Trooper Wallace utilized a state-approved PET device, which he had been trained and certified to use (Wallace: T .160) . The device was working properly, the test was administered correctly, it registered the presence of alcohol in defendant's breath, and Wallace informed defendant of that (Wallace: T.161-63, 348-51). This was a sufficient foundation for the admission of the PBT testimony as consciousness of guilt evidence. A.D.2d at 944. See People v. Adler, 145 Finally, even if it were error to admit testimony about the PET, the error was harmless. There was overwhelming evidence, apart from the marginally probative PET consciousness of guilt evidence (see People v. Bennett, 79 N.Y.2d 464, 469 [1992] 27 ["Consciousness of guilt evidence has been consistently viewed as weak"]), that defendant was under the influence of alcohol at the time he crashed into the rear of Mr. Kupcs's SUV. Kupcs saw defendant driving erratically, first weaving from lane to lane and then rear-ending Kupcs' s SUV with great force. Trooper Wallace observed defendant exhibit several physical signs of intoxication, including poor balance and red, watery eyes. Defendant told the trooper that he had been drinking beer and Wallace detected the odor of an alcoholic beverage coming from defendant. In addition, defendant's eyes involuntarily jerked, indicating that he was intoxicated, on all six aspects of the nystagmus test, and defendant performed poorly on the two divided-attention tests. Finally, defendant's refusal to blow properly into the Draeger, preventing a chemical test analysis of his EAC, was itself evidence that defendant was conscious of his guilt. Particularly in light of the court's limiting instructions, there is no significant probability that the jury's verdict would have been different in the absence of the PET evidence. See People v. Wright, 1 Misc. 3d 133(A), 2003 WL 23192789, at *1 (App. Term, 9th and lOth Jud. Dists. 2003) (admission at trial of PET results was harmless error because of overwhelming evidence of guilt); see also People v. Grune, 12 A.D. 3d 944, 945-46 (3d Dept. 2004) (even though EAC result admitted without 28 proof that chemical test equipment was calibrated, conviction for VTL § 1192 [3] count affirmed because of "other, clear evidence of defendant's intoxication"). 29 POINT II BECAUSE DEFENDANT REFUSED TO SUBMIT TO A CHEMICAL BREATH TEST, THE PROSECUTION WAS NOT REQUIRED TO PROVE THAT THE TESTING INSTRUMENT WAS PROPERLY CALIBRATED, BUT ONLY THAT IT WAS FUNCTIONING PROPERLY, AND THERE WAS AMPLE EVIDENCE OF THE LATTER (answering defendant's brief, Point Two). Defendant incorrectly alleges that, because there was no evidence at trial that the Draeger chemical breath testing instrument was calibrated and working properly, and that the test was administered correctly, its failure to register a BAC reading cannot be attributed to his conduct. Defendant's brief at 30. In fact, the evidence did establish that the instrument was functioning properly and that Trooper Wallace correctly administered the test. And because the accuracy of the test result is not at issue when the prosecution seeks to admit a refusal by conduct as consciousness of guilt evidence, proof that the breath testing instrument was recently calibrated was not required. Without citing any legal authority, defendant advances the novel proposition that his refusal to submit to a chemical breath test should not have been admitted as consciousness of guilt evidence because there was no proof that the Draeger was properly calibrated and thus capable of providing an accurate BAC if he had provided a sufficient breath sample. As discussed in Point I, however, in a refusal case, the prosecution is not required to present proof of the chemical breath testing 30 instrument's accuracy as when attempting to introduce the results of the test itself. This is so because the evidence establishing that the defendant was intoxicated is not dependent upon the accuracy of the test result. Thus, whether the available testing instrument was properly calibrated is irrelevant. People v. Adler, 145 A.D.2d 943, 944 (4th Dept. 1988). In Adler, the defendant three times "ostensibly blew into the instrument used to record his blood alcohol content but . in such a way that the instrument failed to record that a sample was received." Id. at 943. As the Adler decision makes clear, the pivotal concern is whether "the failure to register a sample is the result of defendant's actions and not of the machine's inability to register the sample." Id. at 944. Here, as in Adler, defendant by his conduct persistently refused to submit to a chemical breath test (see Points IV and V, infra) and no BAC level was registered by the Draeger or elicited at trial. Thus, the Draeger's ability to analyze defendant's breath and register a precise BAC reading was not a trial issue and, accordingly, the prosecution was not required to prove that the instrument had been properly calibrated. To establish defendant's refusal, however, the prosecution was required to prove that the breath testing instrument was functioning properly. See Matter of Johnson v. Adduci, 198 31 A.D.2d 352, 352 (2d Dept. 1993) (testimony established that breathalyzer "was in working order"); People v. Bratcher, 165 A.D.2d 906, 907 (3d Dept. 1990) (same). The evidence here demonstrated that the Draeger utilized during defendant's refusal was able to receive a sufficient breath sample, was in good working order, and was used properly by Wallace. Trooper Wallace was highly experienced in DWI enforcement, having participated in over 400 such arrests, and was trained and certified to use the Draeger (Wallace: T.139-41, 174, 376). Wallace's certification by the New York State Department of Health provided "presumptive evidence" that the trooper properly administered the chemical breath test to defendant. VTL § 1194 (4) (c); see also People v. Mertz, 68 N.Y.2d 136, 148 (1986). Wallace testified in detail about the Draeger's performance and the procedures he followed in attempting to introduce a sufficient sample of defendant's breath into the instrument. See Statement of Facts at 13-17, supra. Briefly stated, before each of the five attempts: he had the Draeger complete its self- diagnostic check; the instrument indicated that it was ready to receive a sample; he put a new mouthpiece on the Draeger's hose; and he gave defendant simple instructions about how to provide a suitable sample. Throughout the process, the Draeger was in proper working order and never displayed an "Error" message. 32 For each of the five times defendant blew into the instrument, Wallace noted that defendant exhaled only a small puff of air into the mouthpiece in contrast to the volume of breath defendant provided when he took the PBT -- that was insufficient to allow the Draeger to analyze defendant's BAC. Thus, the Draeger's inability to register a BAC result was attributable to defendant's conduct and not to instrument failure or an incorrectly administered test. Further confirmation of this was provided by Trooper Cangiano, who had even more specialized training in using the Draeger than Wallace. Cangiano replicated defendant's test conditions and obtained the same results as Wallace. She also explained in detail that the entries on the printouts of Test 343 and Test 344 were consistent with the events that Wallace had described and with a properly operating Draeger. Moreover, in each test, the reference standard value -- the Draeger's readings of an air sample with a known alcohol level of . 10 percent was within the range of plus or minus . 01 percent that indicates the instrument is analyzing BAC properly (Wallace: T.377-78, 382-83; Cangiano: T.420, 455). This is further proof that the Draeger was working properly. In his brief, defendant three times misrepresents Cangiano's testimony concerning the propriety of the testing procedure. First, the trooper never stated that Test 343 ended 33 "before [defendant] had an opportunity to submit a breath sample." Defendant's brief at 3 0. Rather, Trooper Cangiano testified that the Test 343 printout was consistent with defendant giving three insufficient breath samples between 6:40 a.m. and 6:52 a.m., and that three breath samples can be properly introduced into the Draeger within four to five minutes (Cangiano: T.422-26, 430, 435). Second, defendant incorrectly asserts that Cangiano stated that Test 344 ended "before [defendant] even had an opportunity to give a breath sample." Defendant's brief at 30-31. To the contrary, Cangiano testified that, when she replicated defendant's test conditions, she was able to introduce properly the fourth and fifth breath samples in about four minutes and that the Test 344 printout was consistent with introducing two insufficient breath samples into the Draeger (Cangiano: T. 432, 437-39). And third, Cangiano did not testify "that there was no correct manner to administer a Breathalyzer test." Defendant's brief at 31. To the contrary, what Cangiano stated was that there is "no correct" time to press the Refusal key; it may be pressed before or after an air blank check is completed. She further explained that when an operator decides to press the refusal key is dependent on a suspect's behavior during the test (Cangiano: T.457-58). Cangiano's testimony provides no support 34 for defendant's assertion that he never had a fair opportunity to blow his breath into the Draeger. opposite conclusion. Rather, it supports the Finally, for the reasons discussed in Point I, supra, at 27-28, error, if any, in the prosecutor's failure to establish that the Draeger was properly calibrated, was harmless. In sum, a proper foundation was laid for the admission of the refusal evidence, whose purpose was to prove consciousness of guilt, and not the accuracy of the test result·. 35 POINT III THE ·COURT PROPERLY ADMITTED, AS EVIDENCE OF DEFENDANT'S CONSCIOUSNESS OF GUILT, TESTIMONY THAT DEFENDANT WAS TOLD HE FAILED THE PBT TEST AND EVIDENCE THAT HE REFUSED BY HIS CONDUCT TO SUBMIT TO THE CHEMICAL BREATH TEST (answering defendant's brief, Point III). Defendant appears to claim that he was prejudiced when the court permitted, on the one hand, evidence that he refused to submit. to the Draeger chemical test and, on the other hand, the consciousness of guilt evidence that he was told he failed the PBT. He seems to allege that, because the Draeger refusal was itself evidence of his state of mind, the prosecution should not also have been permitted to elicit testimony that defendant knew he failed the PBT, which, he claims, he had no legal option to refuse. This argument is meritless. Neither the testimony regarding the PBT nor the evidence regarding the Draeger test was direct "proof of [defendant's] guilt." Defendant's Brief at 31. As discussed in Point I, supra, the court admitted PBT testimony for the limited purpose of allowing the jury to consider that, after defendant was informed that he failed the PBT test, he did not want to blow a sufficient amount of breath into the Draeger and fail yet another test. Therefore, whether or not VTL § 1194(1) (b) provides that a defendant has the ability to refuse a PBT is inconsequential. When defendant took the PBT, he was able to provide an adequate sample for testing and learned that the test 36 revealed that there was alcohol in his breath. That evidence was relevant to prove that defendant's failure to provide an adequate breath sample during the Draeger test demonstrated his knowledge of his intoxication. It comes as no surprise that this tangled argument was not made at trial and, thus, it is unpreserved for appellate review. See C.P.L. § 470.05[2]. Nor should this Court entertain the claim in the interests of jus,tice. There is no merit to it and the evidence of defendant's driving while intoxicated was overwhelming. Notably, defendant was under no greater compulsion to take the PET than he · was to take the Draeger test. Although VTL § 1194(1) (b) states that a DWI suspect "shall" submit to a PET, defendant could have refused to blow into the device or .blown an inadequate amount of breath into it. While there are consequences for not submitting to a validly requested PET -- it is a traffic infraction (see VTL § 1800[a]; People v. Leontiev, 38 Misc. 3d 716, 718 [Dist. Ct. Nassau County, 2012]) -- there are potentially even more serious consequences for refusing a chemical breath test -- the loss of driving privileges and the admissibility of the refusal as consciousness of guilt evidence. See VTL § 1194 (2). In sum, testimony that defendant took, failed, and knew he failed the PET was properly admitted as state-of-mind. evidence, 37 even where there was evidence of defendant's chemical breath test refusal. 38 POINT IV THE HEARING COURT PROPERLY DETERMINED THAT TROOPER WALLACE ADVISED DEFENDANT OF THE REFUSAL WARNINGS IN CLEAR AND UNEQUIVOCAL LANGUAGE (answering defendant's brief, Point IV). Defendant asserts that Trooper Wallace did not administer DWI refusal warnings in clear and unequivocal language, due to a language barrier, and that the hearing court should have excluded evidence of defendant's refusal to submit to the Draeger chemical breath test. To the contrary, Wallace's hearing testimony established that defendant understood English, followed instructions given to him in English, spoke the language well enough that Wallace who spoke no Spanish -- was able to understand him, and was informed clearly and unequivocally of the consequences of not submitting to a chemical breath test. Therefore, the hearing court correctly found that defendant understood Wallace's clear and unequivocal refusal warnings and properly admitted the refusal as consciousness of guilt evidence. Where there are reasonable grounds to believe that a person has been driving while under the influence of alcohol, a law enforcement officer is authorized to administer a chemical test to the driver to determine his or her BAC. See VTL § 1194(2) (a) (1); People v. Moselle, 57 N.Y.2d 97, 107 (1982). These tests "are an important investigative tool used by law enforcement in the effort to combat driving while intoxicated 39 and related offenses." People v. Smith, 18 N.Y.3d 544, 548 (2012) 0 A motorist, however, has a statutory right to refuse to submit to a chemical breath test. See People v. Shaw, 72 N.Y.2d 1032, 1033 (1988) 0 Pursuant to VTL section 1194(2) (b), a driver may decline voluntarily to take a chemical test after being advised that the refusal will result in the immediate suspension and ultimate revocation of the motorist's driver license. Evidence of the refusal may be elicited at a criminal trial, however, if the driver "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." VTL § 1194 (2) (f); accord People v. Cragg, 71 N.Y.2d 807, 807-08 (1988); People v. Robinson, 82 A.D.3d 1269, 1269 (2d Dept. 2011) (where warning is given "in clear and unequivocal language" and defendant persists in refusing to submit to breath test, evidence of refusal is admissible) . "To implement the statute, law enforcement authorities have developed a standardized verbal warning of the consequences of refusal to take the test that is given to a motorist suspected of driving under the influence." Smith, 18 N.Y.3d at 550. People v. Proof of the refusal is relevant to a defendant's consciousness of guilt. It suggests "that [a] defendant refused to take the test because of his apprehension as to whether he 40 would pass it." Id. (quoting People v. Thomas, 46 N.Y.2d 100, 106 (1978). A determination of whether the refusal warnings were in "clear and unequivocal language" must be based on an objective standard independent of whether the defendant actually understood them. See Matter of Gagliardi v. N.Y. S. Dept. of Motor Vehicles, 144 A.D.2d 882, 884 (3d Dept. 1988); People v. Reynolds, 133 A.D.2d 499, 501 (3d Dept. 1987); 8 Matter of carey v. Melton, 64 A.D.2d 983 (2d Dept. 1978) (refusing to "construe the statutory warning contained in [VTL 1194(2)] as requiring a 'knowing' refusal by the petitioner"). Here, after determining at the collision scene that defendant was intoxicated, Trooper Wallace arrested defendant and placed him into a police car. Using a card issued by the New York State Police, Wallace read refusal warnings to defendant (Wallace: H.24-27). The trooper advised defendant that he was under arrest for DWI and would be asked to submit to a chemical test. He then warned defendant that a refusal to . submit to a chemical test or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating 8 Defendant misattributes a quotation, suggesting that a subjective standard be used in determining if the refusal warnings were clear and unequivocal, to the Reynolds decision. Defendant's brief at 34. That quote actually comes from People v. Lynch, 195 Misc. 2d 814, 818 (Crim. Ct. Bronx County, 2003), which defendant cites on page 35 of his brief, and is unsupported by any authority. The holding in Reynolds is, in fact, contrary to defendant's position here. 41 privilege, whether or not you are found guilty of the charge for which you are arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest (Wallace: H.26-27, 101-02). Wallace asked defendant if he would take the chemical test and defendant responded that he would (Wallace: H.27). Wallace re-read the last portion of the warnings (the portion indented above) after the third time that defendant blew only a small puff of · breath into the Draeger chemical breath test instrument, and defendant again said that he would submit to the test (Wallace: H.32-33, 74, 102). Defendant does not dispute that the words used by Trooper Wallace in administering the refusal warnings were clear and unequivocal. He contends, however, that the evidence did not demonstrate that he understood English sufficiently to have refused voluntarily to take the chemical breath test. Contrary to defendant's assertion that "Trooper Wallace conceded that [defendant] had a difficult time communicating with and understanding him" (defendant's brief at 35), the hearing record established that defendant understood English well enough to understand the refusal warnings. Wallace had several conversations, in English, with defendant; the trooper spoke no language other than English (Wallace: H. 51-52). Although defendant spoke with an accent and 42 did not "speak great English," he understood and was able to communicate with Wallace in English (Wallace: H.23, 50) . Indeed, Wallace "talked to [defendant] fine in English" and did not utilize an available police form containing refusal and Miranda warnings in Spanish and English "because [defendant] was speaking English to [Wallace]" (Wallace: H.50, 104-05, 107). For instance, at the crash scene, defendant told Wallace where he had been driving from, where he was going, and what he had been drinking (Wallace: H. 23) ; he told the trooper that he had no physical problems (Wallace: H.15); he complied with Wallace's verbal instructions about how to take the nystagmus, walk-and-turn, and one-legged-stand tests (Wallace: H.l6-22); he followed Wallace's instructions successfully in taking the PET test (Wallace: H.103-04); he blew five times, at Wallace's request, into the Draeger test instrument at the police barracks (Wallace: 30-34, 73, 84, 93); after the fifth half-hearted blow, he told Wallace that he could not "blow any longer" (Wallace: H.34); and he made additional responsive statements in English to Wallace's questions, posed in English, at the barracks (Wallace: H.34). After he arrested defendant, Wallace read defendant refusal and Miranda warnings; when asked if he understood the warnings, defendant answered in the affirmative, and also stated that he was willing to speak with the trooper (Wallace: H.27-28, 51-52). 43 At the police barracks, defendant -- when read a portion of the refusal warnings -- again told the trooper that he was willing to give a breath sample (Wallace: H.33). Never during the two times he was read refusal warnings did defendant indicate in any way that he did not understand the clear and unequivocal language that Wallace used. Of the many questions Wallace posed, defendant only said he did not understand two which involved medical terminology: whether he was a diabetic or an epileptic, and whether he had any physical defects (Wallace: H.35, 76, 106). Significantly, when there were English words that defendant did not comprehend, he said so. In every other interaction with Trooper Wallace, defendant, readily answered questions and complied with instructions (Wallace: H.35). Defendant cites trial court decisions for the proposition that, if a motorist does not understand English, refusal warnings issued in English will not satisfy the "clear and unequivocal" standard. Defendant's brief at 35-36. See People v. Hak An, 193 Misc. 2d 301, 302 (Crim. Ct. Queens County, 2002) (upon being asked to take chemical breath test, "defendant indicated that he did not speak or understand English") ; People v. Camagos, 160 Misc. 2d 880, 881 (Crim. Ct. Queens County, 1993) (defendant "apparently understood little or no English"); People v. Niedzwiecki, 127 Misc.2d 919, 920 (Crim. Ct. Queens 44 County, 1985) (defendant "had a limited understanding of English") . But those cases, in which the defendants knew little or no English, presented situations quite different from this one. Here, the record is replete with evidence that defendant spoke English well enough to have understood Wallace's clear and unequivocal warnings. Defendant improperly cites trial testimony in attempting to demonstrate that he had difficulty understanding English. Defendant's brief at 35. However, "[t]he propriety of the hearing court' s ruling must be determined only in 1 ight of the evidence that was before that court." People v. Moss, 67 A.D.3d 1027, 1027 (2d Dept. 2009) (citing People v. Gonzalez, 55 N.Y.2d 720, 721 (1981). To the extent that defendant's claim may be construed as an assertion that the trial verdict was against the weight of the evidence because the refusal evidence was invalid, that argument is also meritless. The trial evidence, like the hearing evidence, established that Wallace communicated refusal warnings to defendant in clear and unequivocal language, and that defendant understood English sufficiently well to comprehend the consequences of failing to submit to a breath sample. In any event, the evidence of defendant's guilt, without evidence of 45 the refusal, was overwhelming (see Point I, supra, at 27-28) and any error in admitting the evidence was harmless. In sum, defendant's behavior and responses to Trooper Wallace's instructions and questions were strong evidence of his ability to understand Wallace's refusal warnings. The hearing court's determination to this effect is entitled to great deference. See People v. Prochilo, 41 N.Y.2d 759, 761 (1977); People v. Rosario, 103 A.D.3d 671-72 (2d Dept. 2013) (evidence before hearing court sufficient to determine effect of refusal communicated in clear and unequivocal terms) . This court should reject defendant's claim that the refusal evidence should have been precluded. 46 POINT V THE HEARING COURT'S DETERMINATION BLOWING ONLY SHORT PUFFS OF BREATH INTO THAT DEFENDANT, BY THE CHEMICAL BREATH TESTING INSTRUMENT, PERSISTENTLY REFUSED TO SUBMIT TO THE TEST WAS WELL SUPPORTED BY THE EVIDENCE (answering defendant's brief, Point V). Trooper Wallace provided defendant with five separate opportunities to provide a sufficient breath sample to permit a chemical test analysis of his BAC. Each time the trooper gave simple instructions about what to do: take a deep breath, make a tight seal around the Draeger chemical breath test instrument's mouthpiece, and blow into it until told to stop. These were the same instructions defendant successfully followed when he took the PBT at the crash scene. During each of the five opportunities, however, defendant blew only a small amount of breath into the Draeger and stopped blowing before being instructed to do so. Wallace determined that defendant, by his conduct, had refused to submit to the chemical breath test. Nevertheless, defendant argues that the hearing evidence did not prove that he persistently refused to give a sufficient breath sample. This contention is belied by Trooper Wallace's testimony. Therefore, the hearing court's conclusion that defendant persistently refused by his conduct to submit to the chemical test should not be disturbed. It is well settled that a defendant's conduct may be construed as a refusal. See People v. Richburg, 287 A.D.2d 790, 47 792 (3d Dept. ·2001) (following refusal warnings, defendant's turning away from officer was evidence of refusal to submit to blood test); People v. Massong, 105 A.D.2d 1154, 1155 (4th Dept. 1984) (feigning unconsciousness was evidence of refusal to submit to test) . In People v. Smith, 18 N.Y.3d 544, 550 (2012), the Court of Appeals explained that "a defendant need not expressly decline a police officer's request [to submit to a breath test] in order to effectuate a refusal that is admissible at trial." As an example of a refusal by conduct, the Court envisioned a situation in which a defendant did not follow police directions about how to take the breath test, thus interfering with the efficacy of the test. Id. For refusal evidence to be admissible at trial, the refusal to submit to a chemical breath test must be persistent. See VTL § 1194 (2) (f). In People v. Thomas, 46 N. Y.2d 100, 108 (1978), the Court of Appeals found the defendant's refusal to be persistent where, after he initially declined to submit to a chemical breath test, he was then informed of the consequences of refusing and nevertheless decided not to provide a breath sample. A DWI suspect's intentional failure to provide a sufficient breath sample may be considered a refusal. In People v. Mitchell, 308 A.D.2d 552, 553 (2d Dept. 2003), the defendant's intoxication was established, in part, by his failure to follow 48 instructions regarding the PBT and chemical test. Similarly, in Matter of Johnson v. Adduci, 198 A.D.2d 352 (2d Dept. 1993), after having agreed to take a breath test, the Article 78 petitioner refused to blow into the testing instrument. This Court found that the motorist's conduct amounted to a refusal. And, under circumstances almost identical to the situation here, in Matter of Van Sickle v. Melton, 64 A.D.2d 846 (4th Dept. 1978), the petitioner "blew into the mouthpiece of the [breath testing] apparatus on five occasions without activating the machine." This was deemed a refusal because the chemical test instrument failed to register a BAC "for reasons attributable to petitioner." Id.; accord Matter of Miracle v. N.Y. State Dept. of Motor Vehicles, 303 A.D. 2d 1053 (4th Dept. 2003) (petitioner failed to provide a sufficient volume of breath for reasons attributable to her) . Although defendant told Trooper Wallace that he would submit to a chemical breath test, the evidence established that he intentionally failed to provide a sample sufficient to allow the Draeger to determine his BAC. At the hearing, Wallace explained how he gave defendant five opportunities to supply a sufficient breath sample. Before each one, he instructed defendant about how to blow his breath into the inst.rument. In between each attempt, the trooper cleared and reset the instrument. Each time, defendant blew only a short breath into 49 the mouthpiece and then stopped, even though he had been instructed to keep blowing until the trooper told him to stop. Wallace generated two printouts from the Draeger for the five attempts, one after the first three attempts that occurred between 6:38a.m. and 6:53a.m. (Test 343), and the second after the last two attempts that occurred between 6:54 a.m. and 6:58 a.m. (Test 344) (Wallace: H.61-73). By his conduct, defendant did not provide a sufficient volume of breath for the instrument to be able to determine defendant's BAC. Accordingly, the hearing court found that "the abundant evidence is that the Trooper gave this defendant more chances than [the court had] ever heard of a defendant being given, more than he should have, more than he needed to, legally speaking, and the defendant persisted in his refusal" (H.l29). The court's determination was well supported by the record, particularly in view of defendant's likely belief, after being informed of the positive PBT result, that the Draeger would yield a similar result. To the extent defendant also alleges that the trial proof did not establish a persistent refusal, that claim is unpreserved for appellate review. See C.P.L. § 470.05 [2]. To have preserved the claim, defendant would have had to argue in his motion for a trial order of dismissal that the prosecutor failed to prove he persistently refused to submit to the Draeger 50 test and that, without the refusal evidence, remaining evidence of defendant's guilt was legally insufficient. Defendant did not so argue (T.466-69). See People v. Hawkins, 11 N.Y.3d 484, 492 (2008); People v. Gray, 86 N.Y.2d 10, 19 (1995). In any event, even if defendant's claim were meritorious, it would entitle him to no relief. Refusal evidence was admitted only as proof of consciousness of guilt, which is not an element of the DWI count for which the jury found defendant guilty. As discussed in Point I, supra, at 27-28, proof of defendant's intoxication was overwhelming, exclusive of the refusal evidence. Thus, the trial proof was legally sufficient and the verdict was not against the weight of the evidence. And, as discussed in Point IV, supra, at 45, defendant may not rely on the trial record when challenging the hearing court's ruling that he persisted in his refusal. Moreover, the trial evidence did prove that defendant's refusal was persistent. Indeed, the proof of persistence was even more extensive than at the hearing. In addition to Wallace's testimony about defendant's conduct during the Draeger test, Trooper Cangiano a highly trained and experienced operator of the Draeger instrument "mimicked the exact conditions" of defendant's testing process (Cangiano: T.437) and explained how the printouts of Tests 343 and 344 were consistent with defendant providing five inadequate breath samples. 51 Defendant's challenge to the finding that he persistently refused is based upon a mistaken interpretation of the two printouts Trooper Wallace generated. The misinterpretation is flatly contradicted by Wallace's first-hand testimony of his five attempts to obtain a sufficient breath sample from defendant and Trooper Cangiano's detailed explanation about how the Draeger worked, how to interpret its printouts, and of Cangiano's experience in replicating the conditions defendant's test (Wallace: H.30-34, 59-60, 66, 73-74, 93-94, T. 177-86, 379, 384-89, 392, 399-400, 405, 407; Cangiano: T.420- 26, 429-32, 434-39, 453-58, 464) 0 In sum, the evidence at the hearing -- and at the trial -- amply demonstrated that defendant persistently refused to submit to the chemical breath test. His failure to provide a sufficient breath sample was attributable only to his conduct and not to any problem with the administration of the test or the operability of the Draeger. therefore be rejected. 52 Defendant's claim should CONCLUSION DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. Dated: Mineola, New York July 15, 2014 Yael V. Levy Donald Berk Assistant District Attorneys of Counsel Respectfully submitted, Kathleen M. Rice District Attorney, Nassau County Attorney for Respondent 262 Old Country Road Mineola, New York 11501 (516) 571-3800 53 CERTIFICATE OF COMPLIANCE WITH 22 N.Y.C.R.R. § 670.10.3(£) DONALD BERK does hereby certify as follows: This brief was prepared by computer; the body of the brief is double-spaced and utilizes a monospaced typeface (Dark Courier) of 12-point size; the footnotes are single-spaced and utilize the same typeface and point size; and, according to the word count of the word processing system used (Microsoft Word 2010), the brief contains 10,943 words, exclusive of the cover, table of contents, proof of service, and certificate of compliance. Dated: Mineola, New York July 15, 2014 DONALD BERK Assistant District Attorney