People v. MartePeople v. Marte
Lipman & Booth, LLC, New York (Christopher Booth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karl Z. Deuble of counsel), for respondent.
Judgment, Supreme Cоurt, New York County (James M. Burke, J.), rendered August 8, 2018, as amended October 4, 2018, convicting defendant, after a jury trial, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a prison term of 90 days, with 5 years’ probation, affirmed.
At issue on this appeal is whether the trial court providently exercised its discretion in denying, as untimely, defendant‘s midtrial motion to suppress the results of an Intoxilyzer breath test on the ground of lack of valid consent to take the test. We find that the court properly exercised its discretion because defendant never moved to suppress on this ground, expressly declined to raise this claim at a pretrial suppression hearing dealing with other issues, and provided no basis for finding
Defendant was charged with two counts of operating a motor vehicle while under the influence of alcohol — one for “driving while intoxicated; per se” (see
On June 19, 2018, a pretrial suppression hearing was held. The People elicited testimony from Office Daniel Lall that on March 20, 2017 at approximately 6:45 p.m., while using his radar gun, Lall measured the speed of the car that defendant was driving at 70 mph, which was 20 miles over the posted speed limit. Lall drove after the car and stopped it within a quarter mile. Lall approached thе driver‘s side door, told defendant why he stopped him, and asked to see defendant‘s driver‘s license and registration. Defendant complied with Lall‘s request. Lall smelled an odor of alcohol, and noticed that defendant had bloodshot eyes, a flushed face, and slightly slurred speech. Lall asked defendant if he had been drinking and defendant replied that he had had two beers. Believing that defendant was intoxicated, Lall requested backup from his supervisor, Sergeant Yeninas.
When Yeninas arrived, he asked defendant if he had had anything to drink. Defendant said that he “had nothing to drink,” but he later admitted that he had had two beers. The officers asked defendant to step out of the car. Defendant looked unsteady on his feet and said that he had trouble walking because he recently had surgery on his thighs. Lall placed defendant undеr arrest, and transported defendant to the police precinct for an Intoxilyzer breath test.
The court denied defendant‘s pretrial suppression motion, finding that Lall had probable cause to stop defendant‘s car because defendant was driving 70 mph, which was 20 miles over the speed limit. The court ruled that defendant‘s statement that he had had two beers and Lall‘s observations regarding defendant‘s сondition gave Lall probable cause to arrest defendant for driving while intoxicated. Thus, the court declined to suppress any evidence that the police obtained as a result of the arrest.
The jury trial commenced on June 22, 2018. After the parties gave opening statements and the testimony of the People‘s first
The trial court providently found that the motion to suppress the result of the Intoxilyzer breath test was untimely. The dissent‘s reliance on a series of trial level cases granting review of untimely motions is misplaced. We agree that trial courts have discretion to hear and decide such motions pursuant to
A defendant may move to suppress the results of a chemical test administered pursuant to
The record indicates that when counsel made the omnibus motion, dated September 12, 2017, defendant was well aware of the facts underlying the administration of the Intoxilyzer breath test and, for reasons that are not apparent, chose not to file a motion on that ground.
Defendant‘s reliance on People v Odum (31 NY3d 344 (2018)) is misplaced. Odum goes to the validity of the Intoxilyzer breath test, not the timeliness of the suppression motion. Nor does it provide an excuse for counsel‘s inexplicable failure, after being asked by the court whethеr defendant intended to advance suppression claims regarding the events relating to the Intoxilyzer test, to expand the scope of the pretrial suppression to include arguments based on Odum.
Defendant contends that his untimeliness was excusable because Odum, which he characterizes as “essentially new authority,” was decided just 47 days before the suppression hearing. Of course, in the first instance, this “timing” provides no excuse for counsel‘s failure to seek expansion of the scope of the suppression hearing to include an argument based on Odum, which he did not do.
Further, while an intervening marked change in the law may arguably provide a reason for a court to exercise its discretion to allow an otherwise untimely motion, Odum does not represent a seed change in the law. Indeed, in People v Rosa (112 AD3d 551 (1st Dept 2013)), lv denied 22 NY3d 1202 (2014), which defense counsel here relied on in announcing at trial that he would seek to challenge the validity of defendant‘s “deemed” consent, we held that “[b]ecause more than two hours had passed since defendant‘s arrest, the officer who administered the breathalyzer test should not have advised defendant that if he refused to take the test, his driver‘s license would be suspended and the refusal could be used against him in court” (id. at 552). While we ultimately found that defendant actually consented to the test, our reasoning on the “deemed consent” issue was in essence the same as the Odum Court. The dissent attributes counsel‘s failure to make a timely motion as inadequate
Furthermore, the validity of defendant‘s consent to the test was an issue to be determined by the court before trial, not an issue that dеfendant was entitled to litigate during trial without previously making a suppression motion. Defendant‘s reliance on People v Plevy (52 NY2d 58 (1980)) does not support an alternate outcome as it would effectively negate
Finally, the dissent‘s reliance on People v Weaver (112 AD2d 782 (4th Dept 1985)) is misdirected. In fact, Weaver holds that the standard for reversal is abuse of discretion and that decisions on untimely motions are discretionary determinations. Similar to Weaver, we too find that, in the interest of justice, there is “no abuse of discretion herе” (id.). For these reasons, the conviction should be affirmed.
All concur except Renwick, J.P. who dissents in a memorandum as follows:
RENWICK, J.P., dissenting
I dissent because I believe the court improperly rejected as untimely defendant‘s mid-trial motion to suppress the results of an Intoxilyzer test. Relying primarily upon People v Odum (31 NY3d 344 [2018]), defendant argued that the Intoxilyzer results must be suppressed because the test was administered more than two hours after defendant‘s arrest, rendering defendant‘s consent to conduсt the test involuntary as a result of inaccurate warnings. Generally, a motion to suppress evidence may be summarily denied for failure to act in a timely fashion1 (see e.g. People v Mason, 157 AD3d 439, 440 (1st Dept 2018), lv denied 31 NY3d 985 (2018)). However, a court is not foreclosed from hearing an untimely motion where good cause and the interests of justice require their resolution (see
This case met the good cause and interests of justice standard. Had a timely motion been made, it is likely that defendant would have prevailed on his motion to suppress the results of the Intoxilyzer. Indeed, it appears from the current record
Pursuant to
The Court of Appeals in People v Atkins (85 NY2d 1007 [1995]) held that a chemical test administered two hours after
In People v Odum (31 NY3d at 344), the Court of Appeals implicitly overruled those cases and provided clarification on the applicability of the “two-hour rule” in cases where a motorist is not incapacitated and is given refusal warnings after two hours. In People v Odum, the defendant was arrested on multiple charges, including DWI. More than two hours after his arrest, police аsked him to submit to a breathalyzer test. When defendant said no, he was given “refusal warnings” under
Here, the majority finds that, irrespective of the merits of the motion, the trial court providently exercised its discretion in denying, as untimely, defendant‘s motion to suppress the
In my view, the “good cause and interest of justice” standard was met in this case. The underlying premise of the statutory scheme governing pretrial motions and relief is to avoid trial delay based on last-minute defense motions made solely to delay. Unlike cases where waiver has been found, on this record, there was no delay tactic employed in not making the suppression motion. Instead, counsel‘s failure to timely move to suppress the results of the Intoxilyzer test is attributable to his misunderstanding of the applicable law. A defendant who fails to act in a timely fashion in serving or filing a pretrial motion should be entitled to relief where, as here, the consequences of such defendant‘s tardiness would affect the fairness of the truth-finding process of the trial (see Amadeo, 188 Misc 2d 187; People v Coleman, 114 Misc 2d 685, 687 (Sup Co, Kings County 1982)). Once defense counsel became aware of the applicable two-hour rule and learned of People v Odum (31 NY3d at 344), he sought to rectify his mistake by moving to suppress. As the majority admits, there was no сonceivable explanation for why the proposed challenge of the voluntariness of the Intoxilyzer test was not raised in defendant‘s otherwise timely omnibus motion.
The majority, however, reasons that the timing of the Odum
It is this significant issue that the majority dismisses as an “argument . . . not advanced and not properly before [this Court.]” Of course, the issue is not before this Court because the same counsel who failed to challenge the voluntariness of the Intoxilyzer test, in the otherwise timely omnibus motion, is the sаme counsel who represents defendant on this appeal. An appellate court, however, is empowered to consider the trial record retrospectively to determine whether an injustice has occurred, or substantial rights of a defendant have been impaired (People v La Belle, 18 NY2d 405, 409 (1966); People v Helfant, 249 NY 419 (1928)).
That is exactly the situation before this Court. If waiver of suppression of the Intoxilyzer test is found, as the majority urges, and a сonviction affirmed, the failure to make any timely written motion, on the voluntariness of the Intoxilyzer test, would give rise to a postconviction claim of inadequate assistance of counsel and a possible reversal via a
For the foregoing reasons, I would find that the court below should have addressed the merits of defendant‘s untimely motion challenging the voluntariness of the Intoxilyzer test. However, the remedy that defendant requests — reversing the conviction, granting the suppression motion, and dismissing the indictment — is not appropriate (People v Giles, 73 NY2d 666, 671 (1990)). Instead, I would remand the proceedings to the trial court to conduct a hearing on the issue of the voluntariness of the Intoxilyzer test.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: August 5, 2021