The People, Appellant,v.Donald Odum, Respondent.BriefN.Y.March 27, 2018APL-2017-00128 Argued by STANLEY R. KAPLAN (15 Minutes) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - DONALD ODUM, Defendant-Respondent. A P P E L L A N T S B R I E F NANCY D. KILLIAN STANLEY R. KAPLAN Assistant District Attorneys of Counsel July 12, 2017 DARCEL D. CLARK District Attorney Bronx County Attorney for Appellant Bronx, New York 10451 (718) 838-7129 FAX (718) 590-6523 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i STATEMENT 1 QUESTIONS PRESENTED 2 THE FACTS The Accusatory Instrument 3 The Pre-Trial Hearing 3 The People's Case 3 The Defense 7 The Oral Argument 7 The Decision and Order 9 The Motion to Re-argue 10 The Decision on Re-argument 14 The Appeal to the Appellate Term, First Department 16 ARGUMENT POINT THE APPELLATE TERM WRONGLY FOLLOWED PEOPLE V. ROSA. 112 A.D.2d 551 (1st DEPT.2013) IN DETERMINING THAT ADMONITIONS GIVEN TO DEFENDANT AFTER HIS INITIAL REFUSAL, MADE MORE THAN TWO HOURS AFTER ARREST, RENDERED HIS ULTIMATE CONSENT TO THE BREATHALYZER TEST COERCIVE AND, THEREFORE, INADMISSIBLE, WHERE THE LAW IN ROSA. AND, BY EXTENSION, THE PRESENT CASE AS TO LICENSE SUSPENSION IS OUTDATED. FURTHER, THE APPELLATE TERM ERRONEOUSLY FOUND THAT THE REFUSAL WARNING THAT EVIDENCE OF REFUSAL COULD BE ADMISSIBLE AT TRIAL WAS IMPROPER 18 CONCLUSION 32 TABLE OF AUTHORITIES STATE CASES People v. Atkins. 85 N.Y.2d 1007 (1995) passim People v. Brol. 81 A.D.2d 739 (4th Dept. 1981) 23, 24 People v. Luis Carrasquillo._Misc.3d_, 2017 NY SLIP OP (BX CNTY CRIM CT, 3/13/17) 19, 20, 27 People v. Coludro. 166 Misc.2d 662 (Crim. Ct., N.Y. Co. 1995) 25 People v. Dillon. 150 Misc.2d 311 (Crim. Ct., N.Y. Co. 1991) 11 People v. Ellis. 190 Misc.2d 98 (County Ct., Cattaraugus Co. 2001), aff d, 309 A.D.2d 1314(4th Dept. 2003) 17, 21 People v. Harvin. 40 Misc.3d 921(Crim. Ct., Kings Co. 2013) . 20, 22, 23, 27, 28 People v. Kennv. 9 Misc.3d 1104(A) (Crim. Ct., Richmond Co. 2005) 25 People v. Lewis. 25 Misc.3d 1209(A) (Crim. Ct., Kings Co. 2009) 26 People v. McClam. 47 Misc.3d 1204(A) (Dist. Ct., Nassau Co, First District(2015) 25 People v. Morales. 161 Misc.2d 128 (Crim. Ct., Kings Co. 1994) . . . . 22-23, 26 People v. Morris. 8 Misc.3d 360 (Crim. Ct., Richmond Co. 2005) 25 People v. Odum. 54 Misc.3d 128(A) (App. Term, 1st Dept. 2016) passim People v. Robinson. 82 A.D.3d 1269 (2nd Dept. 2011) 9 n.5, 12, 21, 27 People v. Rodriguez. 26 Misc.3d 238 (Supreme Ct., Bronx Co. 2009) 9 n.5, 21, 26, 27 People v. Rosa, 112 A.D.3d 551 f2013t passim People v. Skardinski. 24 A.D.3d 1205 (4th Dept. 2005) 174 21 People v. Slater. 166 A.D.2d 828 (3rd Dept. 1990) 11 People v. Smith. 18 N.Y.3d 544 (20121 24 People v. Thomas. 46 N.Y.2d 100 0978 ) 11, 29 People v. Victory. 166 Misc.2d 549 (Crim. Ct Kings Co. 1995) 25 People v. Ward. 176 Misc.2d 398 (Supreme Ct,Richmond Co. 1998) 25 People v. Zawaki. 244 A.D.2d 954 (4th Dept. 1997) 24 STATUTES CPL § 170.30 8 n.4 CPL 470.05(2) 31 VTL § 70(5) 22 VTL § 1194(2) 26 VTL § 1194(2)(a) 10, 24 VTL § 1194(2)(b) 10 VTL § 1194(2)(f) 12 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) 23 N.Y. Dept. Motor Vehs. Counsel s Office, Time Limitations for Chemical Test Refusals. Opinion No. 1-12, June 29, 2012) 8, 9, 13, 19, 28 iii 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 BRIEF STATEMENT By permission of The Honorable Eugene M. Fahey, a Judge of this Court, granted June 13, 2017, the People of the State of New York appeal from an order of the Appellate Term, First Department, entered December 30, 2016, People v. Odum. 54 Misc.3d 128(A) (App. Term, 1st Dept. 2016), affirming a written decision and order of the Criminal Court, Bronx County (Whiten, J.), dated June 30, 2015, adopting the findings and conclusions of law of J.H.O. David Stadtmauer, dated June 19, 2015, suppressing the results of the breathalyzer test, and from a written decision and order of the Criminal Court, Bronx County (Whiten, J.), dated December 3, 2015, in which the court adhered to its ruling of June 30, 2015. Defendant is currently at liberty. QUESTION PRESENTED Whether the Appellate Term, First Department, erred in relying upon People v. Rosa. 112 A.D.2d 551 (App. Div., 1st Dept. 2013), in concluding that refusal warnings given to defendant more than two hours after arrest were improper and that defendant s consent to the breathalyzer test was, therefore, the result of coercion and the results of that test were inadmissible. 2 THE FACTS The Accusatory Instrument By a Criminal Court instrument filed on October 19, 2014 (Docket Number 2014BX056060), defendant was charged with Reckless Endangerment in the Second Degree (Penal Law § 120.20), Reckless Driving (VTL § 1212]), and Operating a Motor Vehicle While Under the Influence of Alcohol (VTL § 1192 [3][2][1]) (A. 5-6).1 The Pre-Trial Hearing An omnibus suppression hearing was held on May 28 and June 3, 2015, before the Honorable David Stadtmauer, a Judicial Hearing Officer in the Criminal Court. The following facts were adduced at the hearing: The People s Case On October 18, 2014, at approximately 3:00 a.m., at 139th Street and Morris Avenue in the Bronx, Police Officer Erica Cobo of PSA 7 Precinct, with her partner, Sergeant Bautista, was in uniform and in a marked patrol van on a tour of 1 Numbers preceded by A. refer to the pages of appellant s appendix; those preceded by H. refer to the pages of the pre-trial hearing. 3 duty when she observed a double-parked car (Cobo: H. 4, 6-9, 42; A. 28, 30-33, 64), Officer Cobo drove the van up to the car. The driver said he was about to leave the location but told the officer that she might want to direct her attention to a group of people across the street (Cobo: H. 9-10; A. 33-34). Officer Cobo and the sergeant got out of the van and walked over to the group, where members of that group stated that a man driving a Cadillac Escalade had just hit their car a few minutes earlier (Cobo: H. 10, 43-45; A. 34, 67-69). When Officer Cobo asked the direction of the vehicle that hit their car, they pointed north on Third Avenue. The officer and sergeant went back to their van and drove in the direction given them (Cobo: H. 11; A. 35). At East 150th Street and Westchester Avenue in the Bronx, they saw a police vehicle next to a white Escalade and another, smaller, car (Cobo: H. 11, 14; A. 35, 38). The officer at the scene told Officer Cobo that defendant, who was the driver of the Escalade, and the driver of the other car had gotten into an altercation (Cobo: H. 13, 14, 53; A. 37, 38, 77). Officer Cobo approached the driver s side of the Escalade. Defendant was sitting behind the wheel. She asked defendant how he was doing. When defendant responded, I’m fine, Officer Cobo could detect the odor of alcohol on his breath (Cobo: H. 14-15, 63, 64; A. 28-29, 87, 88). Since the interior of the vehicle was at a high level and the officer could not see 4 inside, she asked defendant to step out (Cobo: H. 15-16, 63; A. 39-40, 87). When the car door opened, she saw a white cup in the center console (Cobo: H. 68; A. 92). As defendant got out of the car, she noticed that he was unsteady on his feet and that his eyes were bloodshot and watery and he had a strong odor of alcohol (Cobo: H. 16, 20, 64, 66, 70, 71; A. 40, 44, 88, 90, 94, 95). Based upon her observations of defendant, Officer Cobo concluded he was under the influence of alcohol (Cobo: H. 31-32; A. 55-56). While she spoke with defendant, a witness from the group she had spoken with approached and told her that defendant was the person who had hit their parked car (Cobo: H. 16, 19, 20, 58, 66; A. 40, 43, 44, 82, 90). At 3:12 a.m., defendant was placed in handcuffs and escorted to the police van. While seated in the van, Officer Cobo asked him where he had come from. Defendant responded initially that he was coming from Harlem, then changed his answer and said from the Bronx (Cobo: H. 21-23; A. 45-47). At that juncture, the sergeant approached the van; she held a white styrofoam cup, which appeared to be the same cup Officer Cobo had seen in defendant s car, and, opening the lid, asked Officer Cobo to smell the contents. Officer Cobo found that the smell was of alcohol. The sergeant asked her if that smell was the same as that emanating from defendant, and she answered yes. The sergeant then told her to take 5 defendant to the 45 Precinct for IDTU testing (Cobo: H. 23-24, 74, 75; A. 47-48, 98, 99). At the precinct, Officer Cobo informed defendant of his Miranda rights (Cobo: H. 25, 33-34; A. 49, 57-58). Defendant answered affirmatively that he understood each right (Cobo: H. 34; A. 58). After the warnings were given, she asked defendant where he was coming from, if he was the driver of the car, and if he had consumed alcohol (Cobo: H. 35; A. 59). Defendant said that he started from New Jersey and was going to the Bronx and that he was the driver of the car (Cobo: H. 36; A. 60). He denied having anything to drink that night and, when she asked him what he had to eat, said Popeye s Chicken (Cobo: H. 37; 61; A. 61, 85). Subsequently, the highway officer asked defendant if he wanted to take a breathalyzer test (Cobo: H. 24-25; A. 48-49). Initially, defendant responded no but, after the officer asked him again, said, I ll take the test (Cobo: H. 27-28; A. 51-52).2 Defendant provided the breath sample at 5:50 a.m. (Cobo: H. 30-31; A. 54-55). Defendant’s blood alcohol was .09 (Cobo: H. 31; A. 55). In addition, 2 Although it does not appear in the transcript, in the video of the IDTU testing, which was played at the hearing (H. 32; A. 56), after defendant initially refused, the police warned him that if he refused his license would be suspended and the refusal would be used against him as evidence in court. 6 defendant agreed to take a coordination test (Cobo: H. 31; A. 55). The testing was recorded on videotape (Cobo: H. 26, 31; A.50, 55; People s Exhibit One in Evidence: H. 27; A. 51).3 The Defense Defendant did not present evidence. The Oral Argument The court heard oral argument on June 3, 2015. Defense counsel noted that there is no hard-and-fast rule regarding the “ two-hour rule” but it was within a court’s discretion to suppress where there is a violation of that rule and the defendant did not expressly and voluntarily consent to the breathalyzer test after the lapse of two hours (Transcript of June 3, 2015, at 3-4; A. 110-11). Counsel cited to People v. Rosa. 112 A.D.3d 551 (2013), and noted that the First Department held in that case that where more than two hours had passed since the arrest, the officer administering the breathalyzer test should not have advised the defendant that, if he refused to take the test, his driver’s license would be 3 A copy of the videotape will be provided to this Court and to The Bronx Defenders, counsel for defendant in the proceedings below. 7 that although in Rosa, the court found that under the circumstances, the defendant s consent to the breathalyzer test was voluntary because he had agreed to take the test before the officer administered the breathalyzer warnings, the situation was different in the present case because the test took place more than two hours after his arrest and defendant refused to take the test. Counsel argued that the videotape of the IDTU proceedings showed that it was only after defendant was given inappropriate warnings by the officer that defendant consented (Transcript, at 4-6; A. 111-13).4 Counsel argued that the refusal should be suppressed because the consent was given after the warnings and that the contents of the breathalyzer should be suppressed because defendant did not give voluntary consent (id., at 7; A. 114).5 The prosecutor responded that Rosa concerned events that occurred in 2009 and that there have been evolutions that have “ removed the taint of the warnings (Transcript, at 28; A. 135). The prosecutor referred to a legal memorandum from the Counsel’s Office of the New York Department of Motor 4 The videotape was played again for the court (Transcript, at 6; A. 113). 5 The People are omitting the defense arguments concerning suppression of identification testimony under CPL § 170.30, the suppression of physical evidence, the observations of police, and the breathalyzer result as stemming from an illegal arrest since the denial of suppression relevant to those arguments is not the subject of this appeal. Accordingly, the People are also omitting the People s response to these defense arguments. 8 Vehicles [hereinafter, DMV ] in 2012 entitled, Time Limitations for Chemical Test Refusals, which asserted that warnings administered after two hours were proper because the DMV would suspend licenses where a refusal was attained outside of the two hours (Transcript, at 28; A. 138). Consequently, the warnings given were true because if defendant did determine to refuse, his license would be suspended and the refusal could be used against him in court (id.). When asked by the court if it would not be bound by the First Department ruling in Rosa, the prosecutor responded that Rosa was not analogous to the present case because in 2009, there was no protocol to suspend a license for a refusal after two hours but, in 2012, there was such protocol in the DMV. The prosecutor noted that the memorandum from Counsel s Office made reference to People v. Atkins. 85 N.Y.2d 1007 (1995), as the basis for finding that the DMV had the power to suspend a license where a refusal was made after two hours (Transcript, at 30-31; A. 137-38). The prosecutor further argued that the warnings were not coercive because it was within the power of the DMV to suspend the license for refusal (Transcript, at 32; A. 139).6 6 The defense submitted a post-hearing memorandum, dated July 8, 2015, reiterating the oral argument (A. 150-55). 9 The Decision and Order On June 30, 2015, the court below adopted the factual findings and legal conclusions of J.H.O. Stadtmauer, who granted suppression as to evidence of the refusal of the breathalyzer and the contents of the breathalyzer (Decision, at A. 145). Regarding the breathalyzer, J.H.O. Stadtmauer found that suppression of the refusal evidence was warranted on the ground that the refusal occurred more than two hours after the arrest, citing Rosa. 112 A.D.3d 551 (A. 158). The J.H.O. noted that Rosa was in contrast to a holding in the Second Department, which found that a refusal made more than two hours after arrest was admissible in evidence (A. 158).7 The Motion to Re-argue In a motion dated September 2, 2015, the People sought re-argument of the court s ruling. The prosecutor argued that the court misapplied the law by relying upon dicta in Rosa. 112 A.D.3d 551, rather than following Atkins. 85 N.Y.2d 1007, as to the admissibility of a chemical test analysis conducted after two hours from arrest. Accordingly, defendant’s decision to take the breathalyzer test more 7 The decision erroneously refers to People v. Rodriguez. 26 Misc.3d 238 (Supreme Ct., Bronx Co. 2009); the J.H.O. evidently meant to cite People v. Robinson. 82 A.D.3d 1269 (2nd Dept. 2011). 10 than two hours after arrest was admissible where he expressly and voluntarily consented (Collins Re-argument Memorandum, at 4; A. 163). The prosecutor observed that in Atkins, this Court determined that where the accused operator of the vehicle expressly and voluntarily consents to the testing, the two-hour requirement in Vehicle and Traffic Law [hereinafter, VTL ] § 1194(2)(a) is inapplicable, citing Atkins. 85 N.Y.2d at 1008 (Memorandum, at 5; A. 164). The prosecutor noted that in the instant case, defendant gave a breath sample after two hours from arrest but because he expressly and voluntarily consented, the contents of the breathalyzer test are admissible. The only issue, therefore, for the court would be whether he gave voluntary consent (id., at 5; A. 164). The prosecutor argued that consent was not coerced because the police gave breathalyzer warnings. Under VTL § 1194(2)(b), if the defendant refuses to consent to the test, the police officer must request that the defendant submit to the test and advise him or her of the consequences of refusal. The prosecutor cited and quoted People v. Thomas. 46 N.Y.2d 100, 109 (1978), to demonstrate that there was no impairment of a constitutional right by presenting to the defendant a choice between submitting to a chemical test or facing the consequences of refusal. Further, the prosecutor cited and quoted People v. Dillin. 150 Misc.2d 311, 314 (Crim.Ct., N.Y. Co. 1991), for support that the statutory provisions requiring a motorist to submit to the administration of a chemical test or suffer adverse consequences were consistent with constitutional rights. The prosecutor argued that these decisions expressly acknowledge that the VTL warnings were designed to induce submission to the test, but that since driving is a privilege and not a right, the warnings do not encroach on any constitutional or statutory right (Memorandum, at 6; A. 165). The prosecutor added that the inducement provided by the warning that refusal could result in license revocation does not eviscerate the voluntariness of the consent. The prosecutor cited to People v. Slater. 166 A.D.2d 828 (3rd Dept. 1990), in which the Third Department found consent to a blood test voluntary even after the defendant had refused numerous times and the arresting officer threatened to get a court order to compel the sample, to show that, here, the actions by the arresting officer were far less intrusive (Memorandum, at 7; A. 166). The prosecutor argued that People v. Rosa. 112 A.D.3d 551 (1st Dept. 2013), was not controlling. The assertion that the officer should not have advised the defendant in that case that refusal of his license would be suspended, and that the refusal could be used against him in court, was dicta, unnecessary to the decision, which upheld the vehicular assault conviction. The prosecutor told the court that the focus of Rosa was not on the refusal warnings but on the sufficiency of 12 evidence of serious physical injury to the victim, and whether a pre-trial hearing concerning the reliability of the breathalyzer test should have been ordered (Memorandum, at 8; A. 167). The prosecutor noted that the Second Department decision in People v. Robinson. 82 A.D.3d 1269 (2nd Dept. 2011), is directly on point. The Second Department in Robinson, interpreting this Court s decision in Atkins, held that evidence of a refusal is admissible as competent evidence when the evidence is outside the two-hour window (Memorandum, at 9; A. 168). The prosecutor quoted Robinson. 82 A.D.3d at 1269, that the applicable standard is that the People make a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and the person persisted in the refusal (Memorandum, at 9; A. 168). The prosecutor added that Robinson made clear that VTL § 1194(2)(f), the section pertaining to refusal, does not include any time limit (Memorandum, at 9; A. 168). The prosecutor then argued that even if the court were to find that the comment in Rosa was not dicta. Rosa is factually distinguishable. The prosecutor noted that the defendant in that case was arrested in 2009. He told the court that since that date, in 2012, the DMV Counsel s Office definitively stated in an opinion that refusals outside the two-hour window are competent evidence subject to the same requirements of other voluntary tests under Atkins, citing N.Y. Dept. 13 Motor Vehs Counsel s Office, Time Limitations for Chemical Test Refusals, Opinion No. 1-12, June 29, 2012 (provided as Exhibit Two to the motion for re¬ argument) (Memorandum, at 9; A. 168; Exhibit Two: A. 178-79). The prosecutor informed the court that the memorandum from Counsel’s Office provides that the DMV, in light of Atkins, would view a motorist as deemed to have refused even if the refusal occurred more than two hours after arrest, and that, after June 29, 2012, would move forward with license revocation proceedings. The prosecutor noted that, here, since defendant was arrested on October 18, 2014, the highway officer was obligated to inform him that refusal would be used against him at trial and that his license would be suspended if he refused the test (Memorandum, at 9; A. 168). Defendant’s consent was not coerced because he was not pressured to forfeit any constitutional or statutory rights and the warnings given him were accurate as to the consequences of refusal to submit to a chemical test analysis (Memorandum, at 10; A. 169). In papers dated October 23, 2015, the defense responded to the motion for re-argument. Defense counsel argued that the People were asking the court to ignore the clear law in Rosa. 112 A.D.3d 551 (Memorandum of Melissa Lee, Esq., at 4-5; A. 183-84). Further, counsel argued that Rosa does not contradict Atkins but provides guidance as to what constitutes voluntary consent once two hours had 14 passed (Lee Memorandum, at 5-6; A. 184-85). Counsel added that an opinion issued by the Counsel s Office of the DMV is not controlling law (id., at 7; A. 186). The Decision on Re-argiinient In a written decision and order dated December 3, 2015, the court adhered to the previous ruling. The court noted its disagreement that the language in Rosa is dicta (Decision, at 2; A. 209). It found that the decision in Atkins, that the two- hour limitation in VTL 1194(2)(a) has no application where there is voluntary consent to take a breathalyzer test, was distinguishable on its facts (Decision, at 2- 3; A. 209-10). For the court, Rosa was applicable where a defendant is given warnings that could wrongly induce consent. The court found that the People failed to meet their burden of establishing that defendant expressly and voluntarily consented, and found that the videotape showed that defendant initially refused but then consented when he was given inappropriate warnings (Decision, at 4-5; A. 211-12). 15 The Appeal to the Appellate Term- First Department On appeal to the Appellate Term, First Department, the People argued that the nisi prius court erroneously accepted the findings and legal conclusion of the J.H.O., who had suppressed evidence of the result of the breathalyzer test, where the holding in People v. Rosa. 112 A.D.3d 551 (1st Dept. 2013), was outdated as to impropriety of the refusal warning that refusal would result in license suspension, and incorrect as to the warning that a refusal could be used against a defendant at trial, where this Court s case law logically provides the ground for admission of refusal evidence where the refusal is made more that two hours after arrest. In a decision and order entered December 30, 2016, the Appellate Term, First Department affirmed the ruling suppressing the breathalyzer test results. Citing and quoting People v. Rosa. 112 A.D.3d 551, 552 (1st Dept. 2013), the Appellate Term stated, Because more than two hours had passed since defendant’s arrest, the officer who administered the breathalyzer test should not have advised defendant if he refused to take the test, his driver’s license would be suspended and the refusal could be used against him in court.’ (Decision, at 1-2; A. 3-4). The Appellate Term concluded, Inasmuch as defendant agreed to take the test only after the officer gave the ‘inappropriate warnings’ [citing Rosa. 112 A.D.3d at 552], the court properly found that defendant’s consent was involuntary [citing 16 People v. Skardinski. 24 A.D.3d 1205 (4th Dept. 2005), and People v. Ellis. 190 Misc.2d 98 (County Ct., Cattaraugus Co. 2001), aff d. 309 A.D.2d 1314 (4th Dept. 2003)]. (Decision, at 2; A. 4). 17 ARGUMENT POINT THE APPELLATE TERM WRONGLY FOLLOWED PEOPLE V. ROSA. 112 A.D.2d 551 (1st DEPT.2013) IN DETERMINING THAT ADMONITIONS GIVEN TO DEFENDANT AFTER HIS INITIAL REFUSAL, MADE MORE THAN TWO HOURS AFTER ARREST, RENDERED HIS U L T I M A T E C O N S E N T T O T H E BREATHALYZER TEST COERCIVE AND, THEREFORE, INADMISSIBLE, WHERE THE LAW IN ROSA. AND, BY EXTENSION, THE PRESENT CASE AS TO LICENSE SUSPENSION IS OUTDATED. FURTHER, THE APPELLATE TERM ERRONEOUSLY FOUND THAT THE REFUSAL WARNING THAT EVIDENCE OF REFUSAL COULD BE ADMISSIBLE AT TRIAL WAS IMPROPER. The decision of the Appellate Term is plainly wrong in its following of People v. Rosa. 115 A.D.3d 551 (1st Dept. 2013). The rationale undergirding the erroneous ruling is that when the defendant initially refused to take the breathalyzer test more than two hours after arrest, the police gave inappropriate warnings by admonishing defendant that (1) a refusal would lead to suspension of his license and (2) the refusal could be used against him in court. The essential problem as to the first component of the decision, the inappropriateness of warning the defendant that his license could be suspended, is 18 that it is predicated on outdated law. The People informed the J.H.O., the Criminal Court judge, and the Appellate Term that at the time of defendant s arrest in 2014, the DMV had already as of 2012 changed its regulations and, in accordance with this Court s ruling in People v. Atkins. 85 N.Y.2d 1007 (1995), authorized suspension of licenses where a defendant persisted in his or her refusal of the breathalyzer test after two hours have elapsed. See N.Y. Dept. Motor Vehs. Counsel’s Office, Time Limitations for Chemical Test Refusals. Opinion No. 1-12, June 29, 2012), which asserted that warnings administered after two hours were proper because the DMV would suspend licenses where a refusal was attained outside of the two hours (Transcript, at 28; A. 135; Exhibit Two to the People’s Motion for Reargument: A. 178-79); https://dmv.ny.gov/org/about-dmv/opinions- dmvs-counsel. The arrest in Rosa occurred in 2009, when the DMV had the policy of not suspending licenses for refusals made after two hours from arrest. Unfortunately, the courts below ignored the change in procedure, which surely rendered the first admonition concerning the suspension of license appropriate since it was predicated on truth and not a lie. The antiquated rulings in Rosa and the present case were noted by Bronx Criminal Court Judge Steven Homstein in his decision in People v. Luis Carrasquillo. Misc 3d , 2017 NY SLIP OP (BX CNTY CRIM CT, 3/13/17) (A. 213). In Carrasquillo. Judge 19 Hornstein was confronted with the claims that refusal to take a breathalyzer test should be suppressed if police ask the defendant to take such test more than two hours after arrest and that license suspension warnings provided more than two hours after an arrest for DWI constitute coercion and negate consent to the breathalyzer test. As to the issue concerning warnings, Judge Hornstein rejected the defendant s reliance upon Rosa and Odum, finding that Rosa was decided in 2013 based upon the prevailing Department of Motor Vehicles...regulation in 2011 (or earlier) which provided, in pertinent part, that a refusal to take a breath test offered more than two hours after an arrest would not result in an immediate license suspension ( see People v. Harvin, 40 Misc.3d 921 [Crim Ct, Kings County 2013]). DMV, however, changed the relevant regulations in 2012 due, in part, to the holding in People v. Atkins, [85 N.Y.2d 1007 (1995)] ( see id., see also Opinions of Department of Motor Vehicles Counsel at https://dmv.ny.gov/org/about-dmv/opinions-dmvs- counsel). The Odum court relying in part on Rosa, found defendant s consent to a breath test there to be involuntary solely because the officer gave inappropriate warnings (see Odum, 54 Misc.3d at 1). Simply put, the Rosa decision is outdated and the Odum court decision was incorrectly decided. Given the DMV regulatory changes, the warnings provided to defendant in the instant matter were in fact correct statements of the possible consequences to his license if he refused to take a breath test. Giving such warnings more than two hours after his arrest thus does not constitute impermissible coercion. Carrasquillo. at 6-7, n.2 (A. 218-19). 20 The cases cited by the Appellate Term in support of its ruling, People v. Skardinski. 24 A.D.3d 1205 (4th Dept. 2005), and People v. Ellis. 190 Misc.2d 98 (County Ct., Cattaraugus Co. 2001), aff d. 309 A.D.2d 1314 (4th Dept. 2003), are readily distinguishable. The warnings given to those defendants, who were very physically compromised by . their injuries, were inappropriate, inter alia, because they had not been arrested, not because warnings were given more than two hours after arrest. The second allegedly inappropriate warning is that evidence of the refusal may be used against the defendant in court. Here, there is a clear split between the First and Second Departments. In the J.H.O. s findings of fact and conclusions of law, he noted, The People seek to introduce evidence of the refusal at trial. In the light of the uncontradicted evidence that the refusal occurred more than two hours after arrest, suppression of the refusal is warranted [citing Rosa. 112 AD3d 551] (A. 148). He added, substituting People v. Rodriguez. 26 Misc3d 238 for People v. Robinson. 82 A.D.3d 1269 (2nd Dept. 2011), “ This is in contrast to the second dept, holding in People v. Rodriguez. 26 Misc.3d 238 (March, 2011) that a refusal ...is admissible into evidence regardless of whether the refusal is made more than two hours after arrest. (A. 148). This confusing state of affairs needs to be rectified. 21 The concept endorsed by the Appellate Term, First Department, with attribution to Rosa, is that more than two hours after arrest a defendant may not be admonished about a refusal and, although not fully developed in discussion by the Appellate Term, that the defendant may not be told that the refusal could be used against him or her in court. There is no basis for this ruling. The two-hour rule is simply not relevant. In review of the ruling of the court below, it is advisable to examine the history and purpose of the two hour rule.” Originally, the rule was in section 70(5) of the Vehicle and Traffic Law. In 1941, the Legislature provided that results of a chemical test for blood alcohol would be admissible at trial, without the need for expert testimony, if the test was taken within two hours of arrest. Its purpose was “ to ensure that the relevance of post-arrest evidence of intoxication while allowing for the practical challenges involved in arranging to test the driver.” People v. Harvin. 40 Misc.3d 921, 923 (Crim. Ct., Kings Co. 2013), citing Atkins. 85 N.Y.2d at 1010. In its statutory position, it served as a rule “ of an evidentiary nature.” Harvin. 40 Misc.3d at 923, quoting People v. Morales. 161 Misc.2d 128, 130 (Crim. Ct., Kings Co. 1994). Then, in 1970, the Legislature moved the two-hour limitation from the evidentiary provision in 70(5) to section 1194, which is considered the “ deemed 22 consent provision. Harvin. 40 Misc.3d at 923, citing Morales. 161 Misc.2d at 130-31. Under deemed consent, a driver is deemed to have given consent to a blood alcohol test under the direction of law enforcement. Harvin. 40 Misc.3d at 923, citing 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, 676-77 (2008). The change in statutory placement, in which the rule was altered from a statutory rule of evidence, to a guidepost as to when a defendant would no longer be deemed to have given tacit consent to a chemical test, has significant meaning. It is no longer an inflexible evidentiary rule but a means to gauge when consent by an intoxicated driver is valid-i.e.. when a defendant gives express and voluntary consent. With this change in placement to a different statutory section, courts have grappled with the proper scope of the two-hour rule and its application to evidence received after two hours from arrest. In particular, there have been differing rulings as to the whether the two-hour rule applies to refusal where the person was given sufficient warning and the person persisted in the refusal. Harvin. 40 Misc.3d at 924. One response was that given in People v. Brol. 81 A.D.2d 739, 740 (4th Dept. 1981), which, based upon its view that the two-hour requirement was an evidentiary rule applying to the entire statute, held that evidence of a blood test 23 must be taken within two hours or the results are not competent evidence. As a corollary, the court held that evidence of a refusal in section 1194(2)(f) is similarly governed by the two-hour rule, and that since a chemical test after two hours would be incompetent evidence, so too, the refusal to take a test could not be received in evidence. In 1995, however, Atkins undermined inflexibility as to the two-hour requirement for consent to a chemical test as set forth in VTL § 1194(2)(a) and, in effect, overruled Brol: 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 a chemical test administered after the period regardless of the nature of the driver’s consent, is unpersuasive. 85 N.Y.2d at 1005. This Court added that the two-hour limitation contained in Vehicle and Traffic Law 1194(2)(a) has no application...where...defendant expressly and voluntarily consented to administration of the blood test. 85 N.Y.2d at 1009. See also People v. Smith. 18 N.Y.3d 544, 548 n.l (2012) (“ Although time is of the essence in obtaining chemical test evidence, if a defendant agrees to take the test, there is no per se statutory bar on admission of the results if the test was administered more than two hours after defendant's arrest [citing Atkins] ): People v. Zawaki. 244 A.D.2d 954 (4th Dept. 1997) (“ the two- 24 hour rule is inapplicable to chemical tests administered pursuant to defendant s actual consent ). While some courts have given a narrow interpretation of Atkins because of a concern for the reliability of chemical testing after two hours, People v. Victory. 166 Misc.2d 549, 562 (Crim. Ct., Kings Co. 1995); People v. Kennv. 9 Misc.3d 1104(A) (Crim. Ct., Richmond Co. 2005), another court diverged from Atkins on the issue of refusals and found that the two-hour rule in section 1194 (2) remained evidentiary and procedural and that the two-hour rule should be applied generally within two hours of arrest, essentially following Brol rather than Atkins. People v. Morris. 8 Misc.3d 360, 365-66 (Crim. Ct., Richmond Co. 2005). There is a body of case law, however, that recognizes that if consent can be given after the lapse of two hours, and the test results admissible, then, accordingly, so too should a refusal to take a test offered after two hours. Since Atkins permits the evidentiary use of the results of a chemical test taken after two hours from arrest has elapsed, to find that a refusal made after arrest was inadmissible would render “ [t]he offer of the chemical test sanctioned by Atkins...a mere gesture.” People v. Ward. 176 Misc.2d 398, 403 (Supreme Ct., Richmond Co. 1998), quoted in People v. McClam. 47 Misc.3d 1204(A) at *10 (Dist. Ct., Nassau Co., First District 2015). Similarly, in People v. Coludro. 166 Misc.2d 25 662, 667 (Crim. Ct., N.Y. Co, 1995), the court held that the defendant s refusal should not be suppressed merely because the refusal occurred more than two hours after arrest [citation omitted]. Further, in People v. Rodriguez. 26 Misc.3d 238 (Supreme Ct., Bronx Co. 2009), the court rejected the defense argument that evidence of a refusal to take a breathalyzer test was inadmissible because the test was offered more that two hours after arrest. The court observed that since, in light of Atkins, there is no basis to conclude breathalyzer tests are invalid where administered more than two hours after arrest, citing People v. Lewis. 25 Misc.3d 1209(A) (Crim. Ct., Kings Co. 2009), there is no logical basis to conclude that evidence of a refusal offered more than two hours is invalid: If chemical test results offered more than two hours after the stop are admissible when a defendant expressly consents to it, then evidence of a refusal to take it after more than two hours should be admissible as well, particularly since Vehicle and Traffic Law § 1194(2) makes no reference to any time limit ( see People v. Morales, 161 Misc.2d 128 [Crim. Ct., Kings County 1994, Garnett, J.]). To hold otherwise would permit a defendant who was properly offered an opportunity to expressly consent to a chemical test to benefit from refusing. More significantly, it would essentially render the refusal warnings noted in Vehicle and Traffic Law § 1194(2) meaningless and the Atkins ruling superfluous. 26 Rodriguez. 26 Misc.3d at 241-42 (emphasis added). The Second Department in Robinson. 82 A.D.3d 1269, made clear that, after Atkins, there was no ground to deny admissibility of refusal made after two hours: There is no merit to the defendant s contention that evidence of his refusal to submit to a blood test, which occurred more than two hours after arrest, was improperly admitted into evidence. Where as here, the person is capable, but refuses to consent, evidence of that refusal as governed by Vehicle and Traffic Law § 1194(2)(f), is admissible into evidence regardless of whether the refusal is made more than two hours after arrest [citations omitted]. In People v. Luis Carrasquillo. cited above, Judge Hornstein discussed the two-hour rule in relation to evidence of a refusal: To the extent the issue before the Court is whether defendant voluntarily agreed to take a breath test, and the People are not arguing any of the evidence presented constitutes deemed consent,” the two-hour rule is irrelevant (see People v. Atkins, 85 NY2d 1007 [1995]. It thus follows that if defendant refuses to consent to a breath test more than two hours after the arrest, the “ two- hour” rule is similarly irrelevant {see People v. Rodriguez, 26 Misc.3d 238, 242 [Sup Ct, Bronx County 2009] [citing Atkins, supra, and reasoning, [i]f chemical test results obtained more than two hours after the stop are admissible when a defendant expressly consents to it, then evidence of a refusal to take it after more than two hours should be admissible as well” ]; see also People v. Harvin, 40 Misc.3d 921 (Crim Ct, Kings County 2013]). 27 Carrasquillo. at 6 (A. 218). Clearly, there is ample case law that supports the People s contention that the warning concerning the use of evidence of a refusal at trial was appropriate. The decision in Rosa, which makes no discussion of this case law, or offers any rationale for its disapproval of the administration of warnings after two hours, should not be considered a controlling, correct statement of the law. In addition, as has been discussed, there is a reason that the Appellate Division could have found warnings inappropriate in a case emanating from 2009. In Harvin. 40 Misc.3d 921, the court reviewed the case law that found evidence of refusals admissible after two hours from arrest, and noted, as did the prosecutor below, that as of June 2012, the DMV abandoned its long-standing position that evidence of a driver s refusal to take a chemical test was inadmissible at DMV hearings if the refusal occurred more than two hours after the driver’s arrest, citing N.Y. Dept. Motor Vehs Counsel’s Office, Time Limitations for Chemical Test Refusals, Opinion No. 1-12, June 29, 2012. The court in Harvin. 40 Misc.2d at 928, quoted a section of the opinion, in which the DMV, reviewing the case law, stated, In light of these recent and well-reasoned holdings that the two-hour rule is inapplicable to refusals, it the Department’s view that a motorist who refuses to submit to a chemical test more than two hours after the time of arrest is deemed to have refused [and therefore will have 28 his license suspended], assuming that the other statutory elements of a refusal (i.e., reasonable grounds, arrest, warning and refusal) are established at the hearing. Consequently, as argued below, the Appellate Division in Rosa faced a situation in which the officers in 2009 were not authorized to give a warning because there was no basis for suspending a driver s license where the refusal occurred more than two hours after arrest. Here, the highway officer did not issue an idle, empty threat. Since the DMV was prepared as of July 2012 to suspend a license for refusal, it was incumbent upon the police to inform defendant of the consequences of refusal pursuant to VTL § 1194(2)(f). Under VTL § 1194(2)(b), if the defendant refuses to consent to the test, the police officer must request that the defendant submit to the test and advise him or her of the consequences of refusal. The prosecutor properly cited and quoted People v. Thomas. 46 N.Y.2d 100, 109 (1978), to the nisi prius court to demonstrate that there was no impairment of a constitutional right by presenting to the defendant a choice between submitting to a chemical test or facing the consequences of refusal (Memorandum, at 6). See also Smith. 18 N.Y.3d at 551 ( All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, defendant declined to take a chemical test despite having been clearly 29 warned of the consequences of refusal. ). The prosecutor correctly argued that the VTL warnings were designed to induce submission to the test, but that since driving is a privilege and not a right, the warnings do not encroach on any constitutional or statutory right (Memorandum, at 6). Under the law as interpreted by the Appellate Term, a defendant could refuse to take a breathalyzer test more than two hours after arrest without any awareness of the ramifications of that refusal. Accordingly, since the administered warning was legally proper, it would not have coerced consent, but, rather, have given legitimate inducement for the driver to give consent, which is the purpose of the admonishment. Moreover, defendant agreed to take a coordination test (H. 31; A. 55), which indicated his overall willingness to take the tests offered. As a result, there was no basis for the court below to deny admission of evidence of the results of the breathalyzer test. Without a decision from this Court, this issue may be shrouded in uncertainty for years to come. It is not an academic issue but one that is likely to repeat itself in numerous prosecutions in the First Department. Moreover, the issue of whether consent to a breathalyzer test after receiving refusal warnings more than two hours after arrest is valid is a fully preserved question of law. The arguments of the prosecution, the ruling of the judicial hearing officer adopted by 30 the Criminal Court judge, the People s motion to reargue, and the decision on that motion, where the court, after discussion, adhered to its prior decision, all focus on whether the refusal warnings given by police more than two hours after arrest were improper and a defendant’s determination to consent to a breathalyzer test after the warnings were administered is inherently involuntary. As to whether evidence of refusal is admissible, the decision of the judicial hearing officer, noting the split between the First and Second Departments, preserves that issue since the ruling denying that evidence was made in response to the motion made by the defense. CPL § 470.05(2). 31 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: £) Nancy D. Killian By: /f* Stanley R. Kaplan NANCY D. KILLIAN STANLEY R. KAPLAN Assistant District Attorneys of Counsel JULY 12, 2017 32