The People, Appellant,v.Donald Odum, Respondent.BriefN.Y.March 27, 2018Argued by STANLEY R, KAPLAN (15 Minutes) APL-2017-00128 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - DONALD ODUM, Defendant-Respondent. APPELLANT’S REPLY BRIEF DARCEL D. CLARK District Attorney Bronx County Attorney for Appellant Bronx, New York 10451 (718) 838-7129 FAX (718) 590-6523 NANCY D. KILLIAN STANLEY R. KAPLAN Assistant District Attorneys of Counsel October 2, 2017 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES 1STATEMENT 2THE FACTS ARGUMENT POINT DEFENDANT’S ARGUMENT IS UNAVAILING SINCE IT IS PREDICATED UPON AN ERRONEOUS PERCEPTION OF THE “TWO-HOUR” RULE 3 7CONCLUSION TABLE OF AUTHORITIES STATE CASES People v. Atkins. 85 N.Y.2d 1007 (1995) 4,5 People v. Kates. 53 N.Y.2d 591 (1982) 4 People v. Odum, 54 Misc.3d 128(A) (App. Term, 1st Dept. 2016) 3,4 People v. Olmo. 56 Misc.3d 969 (Criminal Ct., Bronx Co. 2017) 3-4 People v. Robinson. 82 A.D.3d 1269 (2nd Dept. 2011) 9 n.5, 12,21,27 People v. Rosa. 112 A.D.3d 551 (2013) 5-6 STATUTES VTL § 1194(2)(a) 3-5 OTHER AUTHORITY Joseph McCormack & Timothy C. Stone, Clarifying the Admissibility of DWI Chemical Test Refusals in New York: The “Two-Hour Rule” Does Not Apply. 82 St. Johns L. Rev. 675 (2008) 2 COURT OF APPEALS STATE OF NEW YORK X THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DONALD ODUM, Defendant-Respondent. •X APPELLANT’S REPLY BRIEF STATEMENT This brief is in reply to the respondent’s brief submitted by counsel on behalf of defendant-respondent Donald Odum. THE FACTS The facts are contained in appellant’s original appellate brief to this Court at pages three to eleven. 2 ARGUMENT POINT DEFENDANT’S ARGUMENT IS UNAVAILING SINCE IT IS PREDICATED UPON AN ERRONEOUS PERCEPTION OF THE PURPOSE OF THE “TWO-HOUR RULE.” The nub of defendant’s response is that defendant could not have voluntarily consented to the breathalyzer test because he was given refusal warnings outside the two-hour period of consent in VTL § 1194(2)(a). This argument is devoid of merit because it founded on a misperception of the purpose of the “two-hour rule.” In the recent decision People v. Olmo. 56 Misc.3d 969 (Criminal Ct., Bronx Co. 2017), the court was confronted with a claim identical to that presented here.1 Rejecting that the “two-hour rule” was dispositive as to the propriety of administering refusal warnings, the court noted that “under the current statutory scheme, the two-hour rule only applies when a chemical test is performed upon a person who is incapable of consenting,” id., at 972, citing People v. Robinson. 82 A.D.3d 1269 (2nd Dept. 2011). The court added, “More specifically, as acknowledged by the Court of Appeals, the legislature distinguishes between 1 Appellant notes that at the time of this reply brief, there is a pending motion for reargument of the Olmo decision. 3 conscious drivers and unconscious or incapacitated drivers,” id., citing People v. Kates. 53 N.Y.2d591 (1982). The court in Olmo then quoted from a law review article (cited in our original brief to this Court), by Joseph McCormack & Timothy C. Stone, “Clarifying the Admissibility of DWI Chemical Test Refusals in New York. The ‘Two-Hour Rule’ Does Not Apply,” 82 St. John’s L. Rev. 675, 676-77 (2008). The article stated, The only remnant of the two-hour rule, and, in fact, the only time that the word “two hours” even appear in [Vehicle and Traffic Law] section 1194, is in section 1194(2)(a). The statute is thus very straightforward. When the deemed consent provision of section 1194 applies, a chemical test analysis must be conducted within two hours of the driver’s arrest. Failure to do so renders such evidence inadmissible at trial. This two- hour prescription exists nowhere else in the statute, dictating that its scope was likewise meant to be limited to that provision. The court in Olmo then discussed this Court’s decision in People v. Atkins. 85 N.Y.2d 1007 (1995), observing that this Court “clearly held that the two-hour time limitation contained in Vehicle and Traffic Law 1194(2)(a) has no application where a defendant expressly and voluntarily consents to the administration of a blood test. [Citation omitted.]” The court continued, “Indeed, the Court of Appeals 4 held in Atkins that the ‘Defendant’s contention that the two-hour limitation in section 1194(2)(a) was intended by the Legislature to be an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver’s consent, is unpersuasive.’ Id. at 1009.” Olmo. 56 Misc.3d at 972-73. The court concluded as to this point, As it is clear that the only proscribed application to of the two-hour rule is limited strictly to the deemed consent subsection of section 1194, which applies only to unconscious or incapacitated drivers, any argument that the refusal warnings are inappropriate if given to a defendant capable of consent after two hours of arrest is misguided. The notion that it is improper for the police to administer refusal warnings after two hours, and that giving such warnings renders an otherwise voluntary consent to submit to a chemical test involuntary, blatantly contradicts both well settled law by the Court of Appeals and the intent of the legislature in its construction of Vehicle and Traffic Law § 1194 as interpreted by the Court of Appeals in Atkins and Kates. Olmo. 56 Misc.3d at 973. In Olmo. there was no showing that defendant was incapable of consenting, and, accordingly, the two-hour rule did not apply. Id-, at 973. The same circumstance is present in the instant case. Significantly, the court in Olmo rejected the Appellate Term’s holding in Odum and its reliance upon People v. 5 Rosa. 112 A.D.551 (1st Dept. 2013). Olmo. 56 Misc.3d at 973-74. For the Olmo court, Rosa was dicta and, based upon the reasoning provided in Robinson. 82 A.D.3d at 1270, that where a person capable of consent nonetheless refuses, evidence of that refusal is admissible into evidence regardless of whether the refusal was made more than two hours after arrest, there was no discernible rationale to the Odum decision. Olmo. 57 N.Y.2d at 973-74. 6 CONCLUSION THE DECISION AND ORDER OF THE APPELLATE TERM, FIRST DEPARTMENT, SHOULD BE REVERSED. Respectfully submitted, DARCEL D. CLARK District Attorney Bronx County Attorney for Appellant By: 4- *, 1 Nancy D. Killian By: Stanley R. Kaplan NANCY D. KILLIAN STANLEY R. KAPLAN Assistant District Attorneys of Counsel OCTOBER 2, 2017 7