The People, Appellant,v.Carlos Palencia, Respondent.BriefN.Y.Jun 21, 2016 To be Argued by: CAMILLE O. RUSSELL (Time Requested: 30 Minutes) ▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬ ___________________________________________________________________________ New York Supreme Court Appellate Division – Second Department Docket No.:2013 08636 THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, -against- CARLOS PALENCIA, Defendant- Appellant. BRIEF FOR DEFENDANT-APPELLANT CARLOS PALENCIA RUSSELL LAW GROUP, PLLC Camille O. Russell, Esq. Attorney for Defendant-Appellant CARLOS PALENCIA 400 Post Avenue, Ste. 401 Westbury, NY 11590 516-867-9300 Nassau County Clerk’s Index No. 1490N-2012 APL-2015-00330 ii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT X THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff- Respondent -against- Docket No.: 2013-08636 CARLOS PALENCIA, Defendant- Appellant. X STATEMENT PURSUANT TO C.P.L.R. § 5531 1. The Indictment number in the lower court is 1490N-2012 2. The full names of the original parties were People of the State of New York against Carlos Palencia. There has been no change of parties on this appeal. 3. This action was commenced in the District Court, Nassau County. 4. This action was commenced by filing a felony complaint on March 25, 2012, which was replaced by an Indictment on September 10, 2012. 5. The object of the action is to vacate the conviction and reverse the Orders denying appellant’s suppression motion and the Order admitting the results of a portable breath test in evidence. 6. This appeal is taken by the defendant from a) an Order denying appellant’s motion for the suppression of any evidence of a refusal to submit to a Breathalyzer decided iii April 25, 2013; b) an Order admitting the results of a portable breath test dated June 10, 2013; and c) a judgment of conviction rendered on June 11, 2013, in which the defendant was sentenced to six months incarceration, license revocation, with applicable surcharges and fines. 7. The appeal is being perfected on the original papers method. iv TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................2 QUESTIONS PRESENTED .......................................................................................................3 PROCEDURAL HISTORY………….…………………………………………………………3 STATEMENT OF FACTS ...........................................................................................................7 ARGUMENT…………………………………………………………………………………...17 I. AS A PREDICATE TO ADMISSIBILITY OF THE RESULT OF A PORTABLE BREATH TEST, THERE NEEDED TO BE PROOF THAT THE INSTRUMENT USED TO TEST THE MOTORIST WAS PROPERLY WORKING, CALIBRATED AND ADMINISTERED CORRECTLY……................. 17 II. AS A PREDICATE TO ADMISSIBILITY OF A REFUSAL BY CONDUCT, THERE NEEDED TO BE PROOF THAT THE STATIONARY INSTRUMENT USED TO TEST THE MOTORIST WAS PROPERLY WORKING, CALIBRATED AND ADMINISTERED CORRECTLY……………..…26 III. EVIDENCE OF A PORTABLE BREATH TEST IS INADMISSIBLE WHEN CHARGED WITH DRIVING WHILE INTOXICATED UNDER THE THEORY OF A REFUSAL TO SUBMIT TO A BREATHALYZER..................................................................................................31 IV. THE WEIGHT OF THE EVIDENCE PROVES THE REFUSAL WARNINGS WERE NOT ADMINISTERED IN CLEAR AND UNEQUIVOCAL LANGUAGE…………………………………………………………………….34 V. THE HEARING AND TRIAL EVIDENCE DOES NOT ESTABLISH A PERSISTENT REFUSAL TO SUBMIT TO A BREATHALYZER………………………………….……………………………37 CONCLUSION ……………………………………………………………….….40 CERTIFICATE OF COMPLIANCE………………………………………….…….41 v SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT X THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff -Respondent, -against- Docket. No.: 2013-08636 CARLOS PALENCIA Defendant-Appellant. X PRELIMINARY STATEMENT This is an appeal from two Orders entered on April 25th and June 10th of 2013 and a judgment of conviction entered on June 11, 2013, in the County Court, Nassau County, convicting Mr. Palencia of the crime of Driving While Intoxicated as set forth in §1192.3 of the VEH. & TRAF. Law. The Hon. Robert Spergel, the trial judge, dismissed Count Two, after the defense’s application for a trial order of dismissal as the evidence presented was legally insufficient to support that charge. Mr. Palencia was sentenced to a term of six months incarceration, license revocation and was directed to pay the applicable fines and surcharges. On September 13, 2013, timely Notice of Appeal was filed. Pursuant to an Order of this Court dated September 30, 2013, Mr. vi Palencia’s motion seeking to stay execution of the judgment and bail pending appeal was granted. On January 27, 2014, Mr. Palencia filed an Order to Show Cause which this Court granted extending time to perfect the appeal to April 21, 2014. Mr. Palencia is currently at liberty having posted bail and is abiding by all the conditions set forth by the Hon. L. Priscilla Hall in the aforementioned Order. QUESTIONS PRESENTED 1. Whether as a predicate to admissibility of the result of a portable breath test, there needed to be proof that the instrument used to test the motorist was properly working, calibrated and administered correctly? County Court’s Answer: No. The People need only establish that the portable device is on the Products Conforming List, was administered correctly and the result communicated to the motorist for limited purpose to establish motorist’s state of mind. 2. Whether as a predicate to admissibility of a refusal by conduct implicating a stationary testing device, there needed to be proof that the instrument used to test the motorist was properly working, calibrated and administered correctly? County Court’s Answer: No. Evidence of the calibration records for the stationary device is unnecessary where the defendant’s refusal is by conduct. 3. Whether evidence of a portable breath test is admissible when a motorist is charged with driving while intoxicated under the theory of a refusal to submit to a breathalyzer? County Court’s Answer: Yes. The result from a portable breath test indicating the presence of alcohol is admissible where the motorist is charged under the theory he refused to provide a breath sample. 4. Whether the weight of the evidence proves the refusal warnings were administered in clear and unequivocal language? County Court’s Answer: Yes. 5. Whether the hearing and trial evidence establishes a persistent refusal to submit to a breathalyzer? County Court’s Answer: Yes. 3 PROCEDURAL HISTORY On March 25, 2012, Trooper Wallace arrested Mr. Palencia for driving while intoxicated. Mr. Palencia was arraigned in the District Court, Nassau County on a felony complaint on March 25, 2012. The Court set bail in the amount of $3,500 cash and a bond alternative of $7500 which was posted on March 25, 2012. A Spanish interpreter appeared at all court proceedings to facilitate communications between the Court and Mr. Palencia. (H. 102- 103). Mr. Palencia was indicted on September 10, 2012, under Indictment No.1490N-2012 charging him with violating two counts of the VEH. & TRAF. Law- §1192.3(Driving While Intoxicated) and §1163(a) (Following Too Closely). County Court Judge David Ayres arraigned Mr. Palencia on September 25, 2012, and maintained the bail conditions that were previously set in District Court. On October 19, 2012, the parties stipulated to a Huntley/Dunaway hearing to determine the admissibility of the following statements: “I had 4 two beers at work at one o‘clock yesterday afternoon. I am going home. I am coming from a friend’s house,” and “yes” in response to Trooper Wallace’s question on whether he had been driving. (H. 14, 78). On January 16, 2013, the defense filed a motion seeking: a) suppression of evidence of the refusal to submit to a breathalyzer or in the alternative, a hearing on the issues; and b) preclusion of lost or undisclosed evidence. The People filed their Opposition on or about January 25, 2012, but failed to address the arguments raised regarding preclusion. In an Order dated April 8, 2013, Judge Ayres granted the defense’s application for a refusal hearing which was held on April 12th and 25th of 2013, but did not address Mr. Palencia’s uncontested application for preclusion. Shortly before the hearing commenced, counsel for Mr. Palencia informed the Court that the District Attorney failed to disclose what we now know are Test 343 and 344. (H. 5-8; Exh. G). Upon making this demand the Assistant District Attorney denied their existence. (H. 5-7). After confronting the People with like documents from similar 5 prosecutions the prosecutor questioned Trooper Wallace about the demand at which point Trooper Wallace went to his patrol car parked outside of the courthouse and produced the documents just prior to taking the witness stand at the hearing where he was the only witness. The Court denied the defense’s uncontested application for preclusion just prior to the start of the hearing (H. 8). After the hearing the Court ruled that the statements were voluntary and despite an obvious language barrier, found that the refusal warning that Trooper Wallace read to Mr. Palencia were given in clear and unequivocal language and Mr. Palencia persisted in his refusal. (H. 125- 130). At the conclusion of the hearing Judge Ayres selected a trial date and the case was later forthwith to Judge Spergel for trial. The trial commenced on May 31, 2013. After jury selection the People made a motion-in-limine to permit the jury to learn that Trooper Wallace administered a portable 6 breath test to Mr. Palencia which was positive and Trooper Wallace informed Mr. Palencia of the results. (T. 22-24). The People argued that this evidence was critical in proving the fact of the refusal itself. (T. 22). The defense argued against the admission of the evidence repeatedly voicing objections and demanding at the very least the calibration records for both testing devices. The Court denied the applications. (T. 22-51; 53-72; 297- 316). The Court ruled that the evidence from the portable breath would be admissible to prove Mr. Palencia’s state of mind provided the People established the following foundational requirements: 1) the portable device is on the Products Conforming List; 2) the test was properly administered; and 3) the result of the test was communicated to Mr. Palencia. (T. 53). The Court further ruled that calibration records for the AlcoTest 9510 are unnecessary when the People’s theory is refusal by conduct. (T. 315). After Trooper Wallace testified about the presence of alcohol when he administered the portable breath test the defense again requested that the evidence be stricken and again the Court denied the application. (T. 304- 7 316). STATEMENT OF FACTS Introduction: On March 25, 2012, Trooper Thomas Wallace received a notification of an auto accident at Exit 28 on the Southern State Parkway. (T. 142). Upon arriving he encountered Carlos Palencia, Juris Kupcs, who was driving another vehicle, and Trooper Ferrero. (T. 143-144). After conducting an investigation Trooper Wallace arrested Mr. Palencia for Driving While Intoxicated among other charges. (T. 165). After the arrest, Trooper Wallace transported Mr. Palencia to the Farmingdale barracks for processing. (T. 170). Hearing: At the Huntley/Dunaway hearing Trooper Wallace testified that while at the barracks he asked Mr. Palencia a series of basic pedigree questions that Mr. Palencia could not and did not respond to because he simply did not understand Trooper Wallace. (H. 76-77). 8 Trooper Wallace further admitted that “Obviously [Mr. Palencia] doesn’t speak great English, but he was speaking to [him] in English.” (H. 49). When asked if Trooper Wallace attempted to clarify so Mr. Palencia could better understand, Trooper Wallace responded, “I tried to but he said he didn’t understand what I was saying.” (H. 77). According to Trooper Wallace he demonstrated how to provide a breath sample on the portable breath test and administered same at 6:04 a.m., arrested Mr. Palencia at 6:05 a.m. and read him highly technical legal terms contained in both the refusal and Miranda warnings between 6:07 and 6:08 a.m., all in the English language. (H. 51). When asked whether the refusal and Miranda warnings were available in Spanish, Trooper Wallace responded in the affirmative. (H. 104-105). When asked about the result of the portable breath test, Trooper Wallace responded, “We don’t put a result on there.” He was then asked, “You never put a result on your breath test?” Trooper Wallace retorted, 9 “On a portable test, no.” (H. 107). Trial: At the trial the People presented three witnesses, Juris Kupcs, the other motorist involved in the accident, Trooper Wallace, the arresting officer and Trooper Cangiano, an expert in breathalyzers. The testimony yielded the following: On March 25, 2012, Trooper Thomas Wallace received a notification of an auto accident at Exit 28 on the Southern State Parkway which occurred at 5:39 a.m. (T. 142, 211). Upon arriving at that location Trooper Wallace saw Trooper Ferrero conversing with another individual, two vehicles on the shoulder of the Southern State Parkway (a black Ford Explorer and a Jeep) and Carlos Palencia. (T.143-145). Upon approaching Mr. Palencia, Trooper Wallace allegedly observed that he had red watery eyes, an odor of alcoholic beverage coming off of him and he was unsteady on his feet. (T. 147). He supposedly questioned Mr. Palencia asking him if he was driving, had anything to drink in addition to where he was coming 10 from and going. In response, Mr. Palencia allegedly said, that he was driving, he had two beers the day before in the afternoon and he was headed home coming from a friend’s house. (T. 146-147). After this conversation Trooper Wallace conducted three field sobriety tests- the horizontal gaze nystagmus (hereinafter referred to as the “HGN”), the walk-and-turn and the one-legged stand tests, all of which lasted six minutes. (T. 218, 282). During this interaction Trooper Wallace was unable to determine if Mr. Palencia’s speech was slurred because of his broken English and his heavy accent and admitted that during their interaction there were points when Mr. Palencia did not understand what he was talking about. (T. 224, 355). Trooper Wallace further observed that Mr. Palencia who had a good attitude, at one point stopped and stared at him with a puzzled look on his face seeking instructions during the during the walk-and-turn test. (T. 237, 279 - 280). During cross-examination about the one-legged stand test, Trooper Wallace admitted that he was unaware of the National Highway 11 Traffic and Safety Administration guidelines (hereinafter referred to as “NHTSA”) that invalidates this test if the officer and the suspect are not apart a distance of at least three feet and did not know what distance if any he maintained while Mr. Palencia did this test. (T. 344). He further testified that although the NHTSA guidelines allow a suspect to put his foot down three times before he is deemed to fail the one-legged stand, he prematurely stopped the test when Mr. Palencia placed his foot down a second time. (T. 346-347). Although Trooper Wallace acknowledged that the NHTSA guidelines require that a suspect hold his head still during the administration of the HGN test for the results to be accurate, he testified that Mr. Palencia head was swaying rendering that test invalid. (T. 250- 254). Trooper Wallace also admitted that the flashing lights on the police vehicle were activated during the HGN and if Mr. Palencia was looking at the light it would be yet another factor rendering that test invalid according to the NHTSA guidelines. (T. 353). When asked to explain the instructions of the one-legged stand that he communicated to Mr. Palencia, 12 Trooper Wallace, presumably sober on the witness stand, was unable to count properly himself explaining that he was tired. (T. 159). Immediately after these three tests which lasted a total of six minutes, Trooper Wallace allegedly administered a portable breath test at 6:04 a.m. using the Draeger 6510 which according to him yielded a positive result that he communicated to Mr. Palencia. (T. 162-163, 304). Trooper Wallace testified that he had no idea when the Draeger 6510 that he used on March 25, 2012, was previously calibrated. (T. 351). No calibration records for any of the testing devices were admitted into evidence. Trooper Wallace admitted that he had not observed Mr. Palencia for at least 15 minutes prior to giving him the portable breath test or at the very least did not know whether the 15 minute observation period had elapsed prior to the portable breath test. (T. 349, 351). Thereafter Trooper Wallace transported Mr. Palencia to the Farmingdale barracks arriving there at 6:16 a.m. (T. 363). According to Trooper Wallace he gave Mr. Palencia five 13 opportunities to submit to a chemical test using the AlcoTest 9510 at the barracks; yet from these five opportunities, the instrument only generated two printouts identified as Tests 343 and 344 below. (Exh. G). When presented with the two printouts both Trooper Cangiano and Trooper Wallace were unable to identify where any of Mr. Palencia’s “attempts” were recorded and eventually admitted that the “attempts” were not reflected anywhere on Tests 343 and 344. (T. 384). Trooper Wallace explained that prior to conducting the above tests, he observed Mr. Palencia for twenty minutes which began at the scene at the time of the arrest. (T.375). During Trooper Wallace’s twenty-minute observation period, he drove to the barracks, typed on a keyboard, inputting Mr. Palencia’s information into a computer, in addition to doing other things; yet maintained that he never took his eyes off him. (T. 364- 370; 375-376). 14 TEST 343 TEST 344 Breath Analysis Breath Analysis %BAC TIME %BAC TIME Diagnostic…….PASS….....6:38 am Diagnostic…….PASS…....6:54 am Air Blank……..0.00………6:39 am Air Blank…..…0.00……...6:54 am Ext Std IR……0.09……….6:40 am Ext Std IR….…0.09………6:54 am Ext Std EC…...0.09………..6:40 am Ext Std EC……0.09….…..6:54 am Air Blank…..-.---………….6:52 am Air Blank……..0.00……...6:58 am Subject IR….-.---………... 6: 53 am Subject IR….-.---………...6:59 am Subject EC….-.---…………6: 53 am Subject EC….-.---………..6:59 am Air Blank….-.---………..--:---- Air Blank….-.---………..--:---- Ext Std IR….-.---………..--:---- Ext Std IR….-.---………..--:---- Ext Std EC….-.---………..--:---- Ext Std EC….-.---………..--:---- Air Blank….-.---………..--:---- Air Blank….-.---………..--:---- Diagnostic…….PASS……6.53 am Diagnostic…….PASS……6.59 am Reportable Value: Reportable Value: Test Not Completed Refusal At 6:38 a.m. Test 343 began at which time the instrument performed a diagnostic check. (T.381, 422-423). At 6:39 a.m. the device then checked to determine if the air contained therein was clean registering a reading of “0.00” for the operator to proceed. (T. 422-423). From 6:40 a.m. to 6:52 a.m. alcohol from the laboratory was then injected into the instrument having a known value. (T.381-383, 422-423). During this timeframe and throughout this process a suspect cannot submit a breath sample into the instrument. (T.383; 455-456). After this process is completed the unit has to purge the alcohol that was previously injected, completely eliminating it, before Mr. 15 Palencia can submit a breath sample. (T. 383-384, 422-423, 458). To ensure that the alcohol is purged and the air is clean a second “air blank” check is performed. (T. 423, 459). The device then “pulls in room air, clears out the sample chamber and insures there [are] no interfering substances. At that time it would ask for the subject’s breath sample.” (T. 423). The same process was repeated in Test 344. The diagnostic phase began at 6:54 a.m. and continued to the purging phase of the known alcohol ending at 6:58 a.m. At 6:58 a.m. Test 344 registered a “0.00” reading at the “air blank” phase. The People’s expert witness, Trooper Cangiano testified that this “0.00” reading at the “air blank” phase on Test 344 at 6:58 a.m. is when Trooper Wallace had definitively ended the test barring Mr. Palencia from submitting any sample of his breath. (T. 438). Both Trooper Wallace and Trooper Cangiano testified that there is no opportunity for a suspect to submit a breath sample at any time prior to the instrument purging itself of the known alcohol; which would be from 6:38 to 6:52 a.m. on Test 343 and from 6:54 to 6:58 a.m. on Test 344. (T. 381, 383, 16 455-456). Yet, Trooper Wallace testified that Mr. Palencia attempted to provide three breath samples between 6:40 and 6:53 a.m. on Test 343 (T.386). He seemingly lost knowledge of what had occurred with respect to Test 344 unable to even identify when Mr. Palencia attempted to provide the alleged two additional breath samples. (T. 400-408). Trooper Wallace further admitted that nowhere on Test 343 is there any indication that the purging process was completed. (T.385-386). Trooper Cangiano corroborated his testimony when she opined that Trooper Wallace stopped Test 343 during the time the instrument was purging the known alcohol at 6:52 a.m. (T. 454-455, 459). According to Trooper Wallace, he demonstrated, gave Mr. Palencia instructions, and changed the mouthpiece after each of the five attempts which strains credulity based on the timeline of events adduced at the trial. (T. 175-177). During deliberation the jury had one question that was presented to the Court in the form of a note which stated, “We the jury would like to 17 hear testimony of the breath test vis-a vis Mr. Palencia’s breath into it to determine his ability to understand the instructions by Trooper Wallace at the scene of the accident.” Approximately ten minutes after the court reporter read the testimony, the jury rendered a verdict on June 11, 2013 convicting Mr. Palencia of violating §1192.3 of the VEH & TRAF. Law. ARGUMENT I. As a predicate to admissibility of the result of a portable breath test, there needed to be proof that the instrument used to test a motorist was properly working, calibrated and administered correctly. VEH. & TRAF. Law §1194 (4) empowers the Commissioner for the Department of Health to, “issue and file rules and regulations approving satisfactory techniques or methods of conducting chemical analyses of a person’s blood, urine, breath or saliva and to ascertain the qualifications and competence of individuals to conduct and supervise chemical analyses of a person’s blood.” The Commissioner expanded the definition of “chemical analyses” 18 to include breath tests conducted on breath analysis instruments approved by the Commissioner in accordance with §59.4 of Title 10 of the New York City Rules & Regulations (hereinafter referred to as NYCRR). Section 59.4 approved for use certain stationary and portable breath testing devices to detect alcohol which are delineated on the Products Conforming List established by U.S. Department of Transportation National Highway Traffic Safety Administration. Section 59.4 requires that breath analysis instruments, presumably whether portable or stationary, be calibrated at a frequency as recommended by the device manufacturer or at minimum, annually. In addition to approving the use of these devices, the Commissioner promulgated specific requirements in §59.5 that law enforcement officers are required to observe before evidence of the results from stationary devices, not portable ones, are admissible in evidence. Section 59.5 is as follows: 59.5 Breath analysis; techniques and methods. The following breath analysis techniques and methods shall be a component of breath analysis instrument operator training provided 19 by training agencies and shall be used by operators performing breath analysis for evidentiary purposes: (a) A breath sample shall be collected at the direction and to the satisfaction of a police officer and shall be analyzed with breath analysis instruments meeting the criteria set forth in section 59.4 of this Part. (b) The subject shall be observed for at least 15 minutes prior to the collection of the breath sample, during which period the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked, or have placed anything in his/her mouth; if the subject should regurgitate, vomit, smoke or place anything in his/her mouth, an additional 15-minute waiting period shall be required. (c) A system purge shall precede both the testing of each subject and the analysis of the reference standard. (d) The result of an analysis of a reference standard with an alcoholic content greater than or equal to 0.08 percent must agree with the reference standard value within the limits of plus or minus 0.01 percent weight per volume, or such limits as set by the commissioner. An analysis of the reference standard shall precede or follow the analysis of the breath of the subject in accordance with the test sequence established by the training agency. Readings for the reference standard, a blank and the subject’s breath, shall be recorded. (e) Results of an analysis of breath for alcohol shall be expressed in terms of percent weight per volume, to the second decimal place as found; for example, 0.237 percent found shall be reported as 0.23 percent. A thorough review of the regulations revealed that there are no equivalent safeguards in place for portable devices that would render those results valid for evidentiary purposes, like that which currently exist for stationary ones. 20 Section 59.5 is inapplicable to portable devices because they do not have the ability to conduct system purges required under subsection (c), and cannot conduct an analysis of a reference standard before or after the subject gives a breath sample as mandated in subsection (d). In addition, an officer is required to record the results of the test to the second decimal a requirement specified in subsection (e) for stationary devices. According to Trooper Wallace the results of the portable breath test are never recorded. (H. at 107). A review of the cases in the lower courts reveals the results of these portable tests are generally recorded by law enforcement on a pass/fail basis with some devices yielding no numerical value to record. Judges in the lower courts over the past eight years have attempted to implement their own version of what the safety measures should be as a pre-cursor to admissibility of the results of portable devices; many of whom are now looking to the Appellate Courts for guidance including Judge Spergel. (T. 313). In Aliaj, the defendant was arrested for driving while intoxicated. 21 The portable breath test indicated a reading of .11% while the stationary device reflected .08% about an hour and a half later. The defendant was charged with driving while intoxicated per se and driving while impaired. Judge Daniel Conviser denied the People’s application to admit the result of the portable breath test as clearly unreliable stating, “If district attorney’s and police departments are serious about having blood alcohol tests taken at scenes of car stops admitted into evidence, they will have to do more to conduct those tests reliably.” People v. Aliaj, 946 N.Y.S.2d 430, 441 (Sup. Ct. NY County 2012). The Court elaborates that the results of a portable breath test are presumptively inadmissible and in order for the People to overcome that presumption they must make the following threshold showing: 1) the device is on the Products Conforming List; 2) the device was properly calibrated; 3) the test was properly given; and 4) the police officer had reasonable cause to believe the suspect had committed an alcohol related violation. Id. Once that threshold showing is made, the People then must overcome a five factor test for the results to be admitted 22 into evidence. These five factors are: 1) the condition of the operator- adherence to the 15 or 20 minute observation rule; 2) the qualifications of the test giver; 3) the reliability of the testing device; 4) the manner in which the test was administered; and 5) the record of the test procedure. Id. at 439. In Hargobind, Judge Gerstein granted the People’s pre-trial motion to admit the result of the portable breath test for a defendant charged with driving while intoxicated who refused a chemical test at the precinct provided the People meet at least the following criteria: 1) the device had been tested; 2) it produced a reference standard, within a reasonable period prior to defendant's test; 3) the device had been properly calibrated; 4) the device was properly functioning on the day the test was administered; 5) the test was administered properly; 6) the device was purged prior to the test; 7) the test was administered by a properly qualified administrator; and 8) the defendant was observed for at least 15 minutes prior to the test to ensure that defendant had not “ingested alcoholic beverages or other 23 fluids, regurgitated, vomited, eaten, or smoked, or have anything in his/her mouth.” People v. Hargobind, 950 N.Y.S.2d 725, 728 (NY City Crim. Ct. 2012). In Jones, Judge Mandelbaum likewise granted the People’s motion- in- limine to admit the result of the portable breath test where a defendant was charged with common law per se driving while intoxicated if the People could: 1) demonstrate that the machine had been tested within a reasonable period in relation to defendant’s test and found to be properly calibrated and in working order; and 2) establish that this properly functioning testing device was properly operated on the occasion in question by a qualified administrator of the test in accordance with its specifications. People v. Jones, 927 N.Y.S.2d 586 (NY Crim. Ct. 2011). In Santana, Judge Simpson granted the defense’s motion to preclude the result of a portable breath test where the defendant was charged with common law per se driving while intoxicated finding that portable breath test results are inadmissible because there must be evidence that the device 24 was regularly serviced and maintained to ensure its effective operability. People v. Santana, 930 N.Y.S.2d 176 (NY Crim. Ct. 2011). Judge Tallmer outright ruled that the results of a portable breath test inadmissible because, “the conditions surrounding a field test do not give the same assurance of reliability and accuracy as those in a controlled environment.” People v. Reed, 799 N.Y.S.2d 163 (Sup. Ct. Bronx County 2004). Judge Salvatore likewise found the results of a portable breath test inadmissible irrespective of any threshold considerations. People v. Schook, 847 N.Y.S2d 898 (Suffolk Dist. Ct. 2007). Every judge, except Judge Spergel in the instant case, who admitted the results of a portable breath test required calibration records to ensure the accuracy of the results. Here, Judge Spergel ruled that the result of the portable breath test is admissible if the People established: 1) that the portable device is on the Products Conforming List; 2) the test was properly administered; and 3) the result of the test was communicated to Mr. Palencia. 25 If the scientific experts and specialists deemed it necessary to require and maintain calibration records for stationary devices for those results to be admissible as set forth in §59.5, then surely portable devices that presumably are more fallible because of their mobility cannot and should not be held to a lesser standard. Moreover, scientific experts should articulate the standards for the results of a portable breath test to be admitted into evidence, not judges. Nevertheless, despite multiple demands to produce the calibration records for the portable breath device, they were never disclosed. Trooper Wallace testified that he had no idea when the portable device he used on Mr. Palencia was last calibrated. (T. 351). He further admitted that he did not observe a fifteen minute observation period prior to administering the portable breath test. (T. 349). If the jury is going to learn that the result of the portable breath test was positive and consider it in reaching its verdict, at the very least, the Court should have ensured that the device, although appearing on an approved list, was properly maintained, working and 26 administered correctly on March 25, 2012. The People elicited testimony that Trooper Wallace turned on the device, it warmed up, the green light appeared and he administered the portable breath test. (T. 162). However, the Court of Appeals has held this type of testimony inadequate to admit the results of a stationary device into evidence. People v. Mertz, 68 N.Y.2d 136 (1986). Here the Court should likewise deem Trooper Wallace’s testimony inadequate requiring a heightened standard for portable devices. II. As a predicate to admissibility of a refusal by conduct, there needed to be proof that the stationary instrument used to test the motorist was properly working, calibrated and administered correctly. Where a subject verbally refuses and never comes into contact with a breathalyzer the People are not required to prove the reliability and accuracy of the instrument and its proper administration beyond a reasonable doubt because the instrument was never an issue. On the other hand, where the breathalyzer is working properly, and where the 27 instrument does not register a breath sample after a subject attempts to provide one, the usual inference is that defendant is deliberately refusing to breathe into the machine. People v. Davis, 797 N.Y.S.2d 258, 265 (Sup. Ct. Bronx County 2005). At the close of the evidence the Court empowers the jury with this inference as follows: Under our law, if a person has been given a clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such test, and there is no innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of law. People v. Thomas, 46 N.Y.2d 100 (1978). In order for the People to rely on this permissive inference it must prove beyond a reasonable doubt that Mr. Palencia persistently refused and he was given clear and unequivocal warnings. In their attempt to prove a persistent refusal the People proffered that Mr. Palencia made five attempts to provide breath samples and that the machine failed to register a reading. Although the evidence clearly shows that Mr. Palencia was not given a single opportunity to provide a breath sample, these are the two 28 facts upon which the People relied to establish a persistent refusal. Implicit in the People’s reliance that the machine failed to register a reading is the undeniable assumption being made that the machine is properly working; evidence of which was never presented in this trial. Without proof of the machine’s reliability and accuracy admitted into evidence the presumption conferred on the People is unwarranted and is patently unconstitutional. There was no proven fact at this trial to infer the reliability and accuracy of the Alcotest 9510. On the contrary, the evidence compels a more logical conclusion, which is, the instrument was either not working properly, the test was improperly administered or both. In order for this presumption to survive constitutional scrutiny and be accessible to the People under the facts of this case there must be a rational connection between the facts proved and the one to be inferred. The Supreme Court explained that it is the presence of a rational connection which prevents the burden of proof from shifting 29 impermissibly to the defendant. Tot v. United States, 319 U.S. 463 (1943). The Court also made it clear that absent a rational connection, no amount of prosecutorial necessity would serve to validate a presumption. Id. There is no rational connection between the assertion that Mr. Palencia attempted to provide five breath samples and the machine failed to register a reading therefore Mr. Palencia feared blowing into the machine; without first showing the machine is working properly and the test properly administered. Only when this showing is made can a rational connection exist between the facts proved and the one to be inferred. In later cases, the Court went on to state that a rational connection between facts proved directly and ones to be inferred from them requires a “substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend”. Leary v. United States, 395 U.S. 6, 36 (1969); Turner v. United States, 396 U.S. 398, 407(1970). The Court of Appeals has exacted an even higher standard of rational connection stating that the connection must assure “a reasonably high 30 degree of probability” that the presumed fact follows from those proved directly. People v McCaleb, 25 NY2d 394, 404 (1969); People v.Kirkpatrick, 32 N.Y.2d 17 (1973). Here the conclusion that Mr. Palencia feared blowing into the machine is significantly undermined when one fails to establish the operability of the instrument and the proper administration of the test. The trial record is completely void of any evidence to support the conclusion that the AlcoTest 9510 was calibrated, working properly and the test correctly administered. In fact, the weight of the evidence shows that it is substantially more probable that either the instrument or the operator caused the results outlined in Tests 343 and 344, not anything Mr. Palencia had done or failed to do. Trooper Cangiano claimed outright that Trooper Wallace stopped Test 343 before the known alcohol was purged and before Mr. Palencia had an opportunity to submit a breath sample. She further testified that Test 344 ended at 6:58 a.m., which is before Mr. Palencia even had an 31 opportunity to give a breath sample on Test 344. Quite surprisingly, Trooper Cangiano then claimed that there was no correct manner to administer a breathalyzer test. (T. 457). III. Evidence of a portable breath test is inadmissible when a defendant is charged with driving while intoxicated under the theory of a refusal to submit to a breathalyzer. On the one hand the People benefitted from the inference that Mr. Palencia’s failure to cooperate in providing a breath sample is proof of his guilt and on the other hand that his cooperation in providing a breath sample is likewise proof of his guilt. These two facts are mutually exclusive and cannot coexist. In order to obtain the admissibility of the result of a portable device the People argued that the result of the portable breath test was positive, communicated to Mr. Palencia who then refused to provide a breath sample for the stationary device, fearing it would disclose evidence of alcohol. The People’s assumption that Mr. Palencia refused at the station because he knew the results of the portable breath test in the field is at best 32 faulty. The statutory framework requires Mr. Palencia to submit to the portable breath test on the side of the roadway but gives him a choice as to the stationary one at the precinct/barracks. There is no possible negative inference or assumption that one can draw that which is later used against him when he complies with the law. The only state of mind that anyone can glean from compliance with the statutory framework is just that- compliance with the statutory framework. To then penalize Mr. Palencia at trial for his compliance with the law is simply absurd. Section 1194(1)(b) provides: Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the manner set forth in subdivision two of this section. A subject involved in an auto accident or suspected of driving while intoxicated is not given a choice to provide a breath sample using a portable testing device- he is compelled to- refusal of which can result in a criminal offense. People v. Leontiev, 956 N.Y.S.2d 832 (Nassau Dist. Ct. 33 2012). In contrast, a subject is presented with a choice to provide a breath sample using a stationary device which he can elect to refuse. When he refuses, the Court instructs the jury that they may infer that the defendant refused to submit to a chemical test because he feared that the test would disclose evidence of the presence of alcohol in violation of law. The People claimed and the Court agreed that the result of the portable breath test is necessary to establish Mr. Palencia’s state of mind. However, the Court had previously ruled that the jury would be permitted to learn about Mr. Palencia’s state of mind as outlined in the refusal charge encompassed in the pattern jury instructions rendering any additional testimony about Mr. Palencia’s state of mind cumulative, unnecessary and highly prejudicial. The People further argued that Mr. Palencia agreed to provide a breath sample for the portable breath test and only when he learned that it was positive did he become uncooperative. For this theory to prevail, the People must again rest on an unsupported assumption. They must assume 34 that Mr. Palencia believed, albeit incorrectly, that the results of the portable breath tests cannot be used against him while the results from the AlcoTest 9510 can; somehow acutely apprised of the use and admissibility of the results of the stationary devices as opposed to the portable ones. IV. The weight of the evidence proves that the refusal warnings were not administered in a clear and unequivocal language. The statutory requirements that a defendant is given a sufficient, clear and unequivocal explanation of the consequences of refusing to take a chemical test and that he makes a persistent refusal to take the test, require that he have a basic level of understanding of the language in which the warnings are given. In regards to the sufficiency of the aforementioned warning, the Court has held, “the determination of the standard for clear and unequivocal language is viewed in the eyes of the person who is being told the warnings not the person administering them.” See People v. Reynolds, 133 A.D.2d 499, 501 (3d Dept.), lv. denied, 70 N.Y.2d 803 (1987); Matter of Carey v. Melton, 64 A.D.2d 983 (2d Dept. 1978). Therefore, the 35 question of whether the warnings were clear and unequivocal is decided on the defendant’s understanding of them, not on the objective standard of whether the police officer read the warnings verbatim from the statute. People v. Lynch, 762 N.Y.S.2d 474 (NY City Crim. Ct. 2003). The People bear the burden of showing that sufficient and accurate warnings were given and that the language given was objectively clear and unequivocal. People v Niedzwiecki, 487 N.Y.S.2d 694 (NY City Crim. Ct. 1985). Further, Courts have required that refusal warnings be administered to non-English speaking defendants in their native language lest such warnings not satisfy the clear and unequivocal language requirement of V.T.L. 1194(2)(f). Id.; People v. Camagos, 611 N.Y.S.2d 426 (NY City Crim. Ct. 1993); People v. Hak An, 748 N.Y.S.2d 854 (NY City Crim. Ct. 2002). Trooper Wallace conceded that Mr. Palencia had a difficult time communicating with and understanding him. (T. 224, 355; H. 49, 76-77). In Niedzwiecki, the Court noted that the “Vehicle and Traffic Law § 1194(2) is couched in terms familiar to most law enforcement officials, legislators, 36 prosecutors, attorneys and judges. However, this court believes that the choices and ramifications flowing therefrom were by no means clearly understandable to the defendant, particularly since he was not proficient in English.” Id. at 920. The same is true in the instant case and warrants a suppression of the “refusal.” In other cases other defendants even had the benefit of the Spanish version of the chemical test request portion of the Alcohol Influence Form, watching and listening to a videotape in Spanish about the consequences of a refusal or the assistance of a Spanish-speaking officer or department member. Camagos, supra; Hak An, supra; People v. Morel-Gomez, 943 N.Y.S.2d 793 (Sup. Ct. Bronx County 2011). Mr. Palencia was not even afforded this opportunity, yet the People gained the benefit of the refusal inference. It is also important to note that the refusal warnings were administered in one minute or less in English to a suspect who does not speak English at the side of the roadway approximately one hour before 37 the test was administered at the station. Trooper Wallace’s admission and the weight of the evidence make it clear that Mr. Palencia had difficulty understanding the Officer. The uncontroverted evidence is that Mr. Palencia did not understand basic pedigree questions Trooper Wallace posed to him. Trooper Wallace conceded that he tried to clarify but Mr. Palencia did not understand what he was saying. (H. 77). Logic and common sense dictates that if Mr. Palencia did not understand basic questions posed to him in English he could not conceivably comprehend a far more complicated English communication contained in the refusal warnings. In light of the aforementioned admissions by Trooper Wallace his conduct becomes more egregious given his further admission that a Spanish-version of the warnings were readily available. (H. 104-105). 38 V. The hearing and trial evidence does not establish a persistent refusal to submit to a breathalyzer. TEST 343 TEST 344 Breath Analysis Breath Analysis %BAC TIME %BAC TIME Diagnostic…….PASS….....6:38 am Diagnostic…….PASS…....6:54 am Air Blank……..0.00………6:39 am Air Blank…..…0.00……...6:54 am Ext Std IR….…0.09………6:40 am Ext Std IR….…0.09………6:54 am Ext Std EC…...0.09……....6:40 am Ext Std EC……0.09….…..6:54 am Air Blank…..-.---…………6:52 am Air Blank……..0.00……...6:58 am Subject IR….-.---………....6:53 am Subject IR….-.---………...6:59 am Subject EC….-.---………...6:53 am Subject EC….-.---………..6:59 am Air Blank….-.---………..--:---- Air Blank….-.---………..--:---- Ext Std IR….-.---………..--:---- Ext Std IR….-.---………..--:---- Ext Std EC….-.---………..--:---- Ext Std EC….-.---………..--:---- Air Blank….-.---………..--:---- Air Blank….-.---………..--:---- Diagnostic…….PASS……6.53 am Diagnostic…….PASS……6.59 am Reportable Value: Reportable Value: Test Not Completed Refusal Test 343 began at 6:38 a.m. and conducted a self-check until 6:52 a.m. Test 344 began at 6:54 a.m. and conducted a self-check until 6:58 a.m. Mr. Palencia could not have supplied a sample of his breath during these times. Accordingly, he was never given an opportunity to even take the test. Trooper Cangiano testified that at 6:58 a.m. on Test 344 at the “air blank” marker, all testing had ended at that point precluding Mr. Palencia from submitting a sample of his breath. (T.438). She further testified that Trooper Wallace stopped Test 343 prematurely during the purging phase when the 39 instrument was ejecting the known alcohol. (T. 454-455, 459). Nowhere in the above timeline is it possible that Mr. Palencia was given five opportunities to provide a breath sample and refused to do so. The evidence does not even support the conclusion that he was ever given an opportunity to blow into the AlcoTest 9510 even once. When asked, “Is there an opportunity for the subject to blow into the machine between the diagnostic and the air blank?” Trooper Wallace answered, “Into the instrument, no.” (T. 381). When asked again, “There’s no opportunity for any subject to blow into the instrument between the diagnostic and the air blank, correct?” Trooper Wallace responded, “That’s correct.” (T. 381). In direct contradiction, he testified that Mr. Palencia blew into the instrument between 6:40 and 6:53 before the air blank and purging phase were completed. (T. 384). In an attempt to reconcile his testimony perhaps one could conclude that Mr. 40 Palencia was blowing into the instrument before the air blank registered a “0.00” reading. However this is not the case as Trooper Wallace testified that he was in control holding the hose and the mouthpiece before he gave Mr. Palencia an alleged five attempts to submit a breath sample. (T. 180-181). Based on the foregoing, the weight of the evidence does not support the conclusion that Mr. Palencia persistently refused a chemical test. CONCLUSION Wherefore it is respectfully requested that this court vacate the conviction, grant the appellant a new trial or give any other relief this Court may deem necessary and proper. 41 Certification of Compliance I, Camille Russell, an attorney duly admitted to practice law in the State of New York, do hereby certify (in accordance with 22 NYCRR 670.10.3(f)) that this brief was prepared on a computer using Palatino Linotype, a proportionally spaced typeface with a point size of 14 and with double line spacing and that the total number of words in the brief and headings is 7,742. This word count was determined using the "Word Count" tool of Microsoft Word. Dated: April 16, 2014 Westbury, NY _________________ Camille Russell, Esq.