People v. MartePeople v. Marte
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 that he could not, with due diligence, have been previously aware of the issue, or that he had good cause for not raising it earlier. We respectfully disagree with the dissent because it goes to the merits and not the timeliness of this motion.
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 stopрed it within a quarter mile. Lall approached the 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 recеntly had surgery on his thighs. Lall placed defendant under 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
The jury trial commenced on June 22, 2018. After the parties gave opening statements and the testimony of the People‘s first two witnesses, defense counsel, for the first time, raised that he intended to contest the voluntariness of defendant‘s consent to the Intoxilyzer breath test. The motion was summarily denied. On June 26, 2018, defendant was convicted by the jury of one count of operating a motor vehicle under the influence of alcohol, for driving with a blood content of at least .08% (
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 CPL 255.20. However, on this record, for all the rеasons that follow, the trial court did not abuse its discretion (see e.g. People v Dosamentes, 180 AD3d 518, 519 (1st Dept 2020), lv denied 35 NY3d 993 (2020); People v Mason, 157 AD3d 439, 439-440 (1st Dept 2018), lv denied 31 NY3d 985 (2018); People v Marengo, 287 AD2d 279 (1st Dept 2001), lv denied 97 NY2d 684 (2001); People v Talmadge, 186 AD3d 1780, 1784 (3d Dept 2020); People v Jackson, 48 AD3d 891, 893 (3d Dept 2008), lv denied 10 NY3d 841 (2008); People v Killings, 191 AD2d 586, 587 (2d Dept 1993), lv denied 81 NY2d 1075 (1993); People v Franklin, 127 AD2d 685, 685-686 (2d Dept 1987)).
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
On October 17, 2017, the court granted a Dunaway/Huntley hearing. At the suppression hearing held on June 19, 2018, no evidence was presented regarding the administration of the Intoxilyzer breath test. In its оrder, the trial court noted that at this hearing it had asked defense counsel whether defendant was raising any suppression claims regarding events surrounding the Intoxilyzer breath test, and counsel indicated that he “did not want to challenge that at the hearing stage.” The court further noted that the prosecutor had sought to play the video to establish that defendant voluntarily took the Intoxilyzer breath test. However, beсause defense counsel had indicated to the trial court that he “did not want to broach th[at] topic,” the court did not permit the People to present evidence concerning the voluntariness of the test.
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 сourt whether 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 assistance of counsel. This argument is not advanced on appeal and is not properly before us.
Furthermore, the validity of defendant‘s consent to the test was an
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 thatdecisions on untimely motions are discretionary determinations. Similar to Weaver, we too find that, in the interest of justice, there is “no abuse of discretion here” (id.). For these reasons, the conviction should be affirmed.
All cоncur 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 conduct the test invоluntary 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 that defendant expressly consented to the test only after the expiration of the two-hour period and after being warned, inaccurately, about the consequences of failing to do so. On appeal, however, the People argue that the test was, in fact, “administered” within two hours because the police officer began the required pre-testing protocols at 8:45 p.m., less than two hours after defendant‘s arrest at 7:05 p.m. In the People‘s view, “in determining when, exactly, the test is ‘administered’ for the purposes of Vehiсle and Traffic Law (VTL) § 1194(2)(a)(1), it is reasonable to use the time when the testing process begins.” The People offer no authority for this interpretation, and it is inconsistent with the plain language of paragraph (2) of subdivision 2 of § 1194, which appears to be clear that in order for the test results to be admissible
Pursuant to
The Court of Appeals in People v Atkins (85 NY2d 1007 [1995]) held that a chemical test administered two hours after a driver‘s arrest is admissible where a defendant expressly and voluntarily consents to such chemical test. The Court, however, did not define “voluntary consent.” As a result, courts, in applying Atkins, narrowly applied the two-hour limitation only to defendants who are incapable of consent (see e.g. People v Rosa, 112 AD3d 551 [1st Dept 2013], lv denied 22 NY3d 1202 [2014] [defendant‘s consent to chemical test two hours after his after arrest was voluntary notwithstanding improper refusal warning]; People v Robinson, 82 AD3d 1269 [2d Dept 2011], lv denied 17 NY3d 800 [2011] [refusal to submit outside of two hours properly admitted into evidence]; People v Olmo, 56 Misc 3d 969, 973 [Crim Ct, Bronx County 2017] [two-hour limitation only applies to unconscious or incapacitated drivers].
In People v Odum (31 NY3d at 344), the Court of Appeals implicitly overruled those cases and provided clarification on the applicаbility 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
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 results of the Intoxilyzer test, on the ground of involuntary consent, because “defendant was aware of the test issue and has not demonstrated a good cause for failing to raise it within the 45-day period.” Thus, the majority argues, counsel‘s “inexplicable” failure to move was sufficient to deny the untimely motion. However, the discretion to entertain an untimely motion, on “good cause and interest of justice,” is not limited to cases where there was no opportunity to learn facts which might possibly have formed the bаsis of a suppression motion. Instead, the statutory provision was designed to provide fairness and constitutionality by not foreclosing motions if good cause and interest of justice require their resolution (see People v Amadeo, 188 Misc 2d 187 [Sup Ct, Queens County 2001]; People v Perry, 128 Misc 2d 430 [Sup Ct, NY County 1985]). Accordingly, courts have held that a defendant who for no apparent reason failed to act within the time parameters of CPL 255.20 may still be entitled to relief if the consequences of his/her tardiness will affect the accuracy and fairness of the truth finding process at trial (see e.g. People v Fox, 17 Misc 3d 281 [Sup Ct, Kings County 2007]; Amadeo, 188 Misc 2d 187; People v Gonzales, 148 Misc 2d 973 [County Ct, Westchester County 1990]; People v Wassen, 150 Misc 2d 662 [Crim Ct NY County 1991]; People v Coleman, 114 Misc 2d 685 [Sup Ct, Kings County 1982]).
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 conceivable 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 decision (47 days before the suppression hearing) doеs not excuse the untimeliness of defendant‘s motion because Odum did not represent a “seed change in the law.” According to the majority, the reasoning in this Court‘s decision, four years before Odum, in People v Rosa (112 AD3d at 551), on the involuntariness issue was, in essence, the same as in the Odum Court. This view misses the point. Based on Odum and Rosa, it is abundantly clear that counsel‘s failure to make a timely motion to suppress the Intoxilyzer test on voluntariness grounds was plainly and simply based on a misunderstanding of thе applicable law (namely that defendant‘s consent to the Intoxilyzer tests was involuntary, based on the fact that the defendant was improperly warned, more than two hours after his arrest, that his refusal to submit to the test would result in the suspension and revocation of his license and that the refusal may be used against him).
It is this significant issue that the majority dismisses as an “argument . . . not advanced and not properly before [this Cоurt.]” 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 same 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, оr 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
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