*1 497 1208, [68 NE3d 478] NYS3d Respondent, v Jose York, State of New Appellant. Aviles, 2016; Argued October decided November *2 OF POINTS COUNSEL Fried, Frank, Harris, Jacobson, LLP, Shriver & New York counsel), B. Livshits and The Bronx CAleksandr Defend- (V. counsel), appellant. ers, Bronx Marika Meis *3 (Stanley Kaplan Attorney, Clark, D.

Darcel District Bronx R. Nancy counsel), respondent. D. Killian of for (Natalie Kraner, LLP, York J. Sandler New Lowenstein counsel), Amy and Steven Llanes of S. Catherine Weiss Taylor, Brooklyn, Make York, the Road Make Road New York, amicus curiae. New *4 OF THE COURT

OPINION J. Garcia, (NYPD) Department New York Police does not The physical language administer coordination tests when a bar- administering communicating prevents rier officer from the non-English speaking suspect. test to a Defendant instructions challenges policy, arguing protec- this that his Jose Aviles process rights tion and due were violated because he was language denied a coordination test on the basis of a barrier. Appellate disagree, order Term We and hold that of the should be affirmed.

L Background Factual striking Defendant was arrested after a marked New York City police entering emergency vehicle was traffic with its lights According arresting on. officer, to defendant had “a strong speech,” breath,” odor of alcohol his “slurred and was “swaying unsteady and on his feet.” At the scene of ac- following cident, defendant made the statement the arrest- ing ago, officer: “I had a few Coronas about 15 minutes about 3 Coronas.” brought arrested,

After he was defendant was an Intoxi- Testing (IDTU), cated Driver Unit where he consented to a breathalyzer nearly test, test. The which was administered three accident, hours after the resulted in a blood-alcohol reading reading content of .06—a below the .08 minimum (Vehicle required per for § se violation and Traffic Law [2]). given physical Defendant was not coordination test. Report Instead, the IDTU Technician Test contains a handwrit- crossing portion ten line report, out the “Coordination Test” entry as well as a handwritten that reads: coord “No given,” “Language ultimately test Barrier.” Defendant was charged driving impaired driving with while while (Vehicle § intoxicated [1], and Traffic Law 1192 Defendant moved to dismiss misdemeanor information ground rights on the the NYPD violated his under Equal Protection and Due Process Clauses the Federal and by failing physical State Constitutions offer a coordination Specifically, test on the basis of a barrier. defendant argued English-speaking person that, “while an arrested driving ordinarily under the influence of alcohol would receive” summarily op- test, coordination defendant “was denied this portunity speaks.”1 People op- he posed, contending equal protec- that defendant was not denied process rights tion, and that defendant’s due were not implicated by the NYPD’s not to offer a decision coordination inability speak test based on defendant’s or understand English. *5 persons English 1. The proficient” dissent’s discussion of who are “limited and, event,

or any inappli- “LEP”was not raised court before trial consistently cable to this The case. trial court found—and defendant has “speaks only Spanish, English.” maintained—that he and not holding granted that the motion, defendant’s Criminal Court speaks defendant—merely provide he to “failure exculpatory potentially only Spanish—with . . access to . warranting rights constitutional denial of his is a evidence Specifically, that “the failure determined the court dismissal.” a case constitutes test in this the coordination administer to protection” process under both due denial of State Constitu the New York States Constitution United holding Appellate that a similar reversed, Term tion. The by Ap recently rejected challenge had been constitutional (People 126[A], 2015 NY pellate Aviles, 47 Misc 3d v Division citing People Dept [App 50347[U] Slip Op 2015], v Term, 1st 2013]). Dept [1st Salazar, 112 AD3d 5 (25 appeal granted Judge defendant Court A of this leave [2015]). We affirm. NY3d

hH ¡I—I Equal Protection the United States Amendment of the Fourteenth Pursuant deny any person “[n]o within . . . Constitution, State shall (US equal protection jurisdiction Const, of the laws” its 1). provides for § Constitution York XIV, Amend New (NY § safeguards equal protection I, 11; equivalent Const, art [2006]). 338, 362 Robles, 7 NY3d see Hernandez v primarily Alleged equal protection evaluated violations are scrutiny” using a “rational basis” standard or either a “strict suspect disadvantages governmental a action Where review. right, must the conduct be a fundamental or burdens class only upheld scrutiny,” subjected if the and will be to “strict justification compelling government the ac can establish (Regents 265, 299-300 Bakke, v 438 US Univ. Cal. tion “facially discrimi can constitute neutral conduct While equal protection, against suspect in violation class nation” “requires plaintiff an intent show that a a claim such (Soberal-Perez suspect Heckler, v class” discriminate 1983]). suspect [2d class or 41-42 Cir Where F2d government implicated, right action is not fundamental governmental legitimate only rationally to a related need purpose be (id. premised equal protection claim is

Here, defendant’s offering physical coordina the notion that the NYPD’s English discrimina- to intentional amounts tion tests *6 ethnicity origin. tion on the basis of or national But strict scrutiny inapplicable is claim, defendant’s as he has not challenged policy singles demonstrated that the out members suspect class, of a nor has he shown intentional discrimination. Hispanics group suspect While as an ethnic constitute a class (Keyes [1973]), 1, v School Dist. Denver, No. 413 US policy facially the NYPD at is issue neutral and not based on ethnicity, origin. policy or race, Rather, national is based solely suspect’s ability speak English, on a and understand (Soberal- by implicate suspect which, itself, does not class Perez, 717 F2d at Nor has defendant demonstrated ethnicity. intentional discrimination based on his To the contrary, the record demonstrates that the officer’s decision not solely to conduct a coordination test was based on a determina- language ethnicity— tion that a barrier—not defendant’s prevented administering the officer from the test. language “serve[s]

The dissent that, contends where as a proxy origin, ethnicity, race,” for national a defendant could suspect establish intentional discrimination class 509-511). scrutiny (dissenting op sufficient to invoke strict agree. validity upholding sure, We To be facial the NYPD preclude challenges applied does all not to the as particular where, to a instance, defendant for the defendant ethnicity, was denied a coordination test on basis of his opposed any language But barrier. that is not the case before presents us. The instant case no evidence such intentional similarly compelling or discrimination other circumstances. any Nor is there indication that was defendant’s surrogate” ethnicity “pretext “treated as a for his or was a mere (Hernandez racial York, discrimination” v New 500 US consistently Rather, 371-372 defendant has maintained non-English speaker, summarily that, as a he “was denied this opportunity speaks” (emphasis because of he added). supports The record the notion that the decision not language-based purely administer a coordination test was a ethnicity, race, determination—not a determination based origin. Accordingly, or review, national rather rational basis scrutiny, protection applies than strict to defendant’s claim. challenged policy rational withstands basis review. public

Both the NYPD and the have a substantial interest ensuring clarity reliability tests, of coordination and the the results. reliability to the is crucial

the instructions tests are that coordination the record makes clear Indeed, in complet- “motor skills not to assess a suspect’s designed “capac- evaluate the tasks,” suspect’s but also to ing specific tests are But coordination follow instructions.” to . . . ity translation; are they via for administration ill-suited uniquely 30 lines of instructions—and lengthy—containing generally explanation demonstration require contemporaneous *7 instructions, can- The translation the tasks to be performed. translator, the officer administering a as not be delegated and and must be training experience, requisite must have the in to ac- instructions order understand the translated able to Moreover, the given analyze suspect’s responses. curately tests, an requiring of coordination nature time-sensitive an trained appropriately officer to seek out administering (see results in a that affects the delay could result translator Missouri v McNeely, 569 US —, —, 133 S Ct ^[2013] human natural metabolic that, body’s “as a result of the [noting in to dis- begins the alcohol level blood person’s processes, absorbed and continues fully once the alcohol is sipate eliminated”]). Indeed, the value of alcohol is decline until time, passage tests diminishes with the coordination physical where entirely meaningless eventually and test results become can instructions be delay. “simply Nor they prolonged follow clar- require “specific a video as the tests through tape,” recited therefore policy and interaction.” NYPD in instructions ity or erroneous avoiding delayed furthers rationally goals due to a barrier. language results inter- has a substantial addition, undoubtedly

In the NYPD burdens financial and administrative heavy est avoiding officers multilingual quali- translation services or of employing in the myriad languages administer coordination tests fied to record, New York State in this state. According spoken dialects. and countless languages 168 distinct speak residents instructions to all the administration of translated Requiring an impose statewide would driving suspects intoxicated on the impact” have a “crippling exorbitant cost that would The dissent’s contention that State, detailed in the record. and protocols place access “the NYPD has York City’s the needs of New resources available to address 507) at is (dissenting op diverse communities” linguistically the realities of physical the record and by ignores unsupported instructions tests, precise which require coordination prompt identify administration.2 Nor does the dissent which particular languages are “most often demand” such that 513). required (dissenting op translation services should be at by purportedly Each of the rationales established “thin” 5) (dissenting op independently record legitimate government supplies at n by interest that is furthered the NYPD policy. City’s Of course, “New York commitment to access to justice regardless worthy status” is a laudable and goal (dissenting op City’s “recognition at And the undoubtedly needs of its diverse communities” is embodied in reports, policies the various executive letters, branch cited 510-512). by (dissenting op the dissent But we do not policies, measure constitutional violations these nor do they give equal protection somehow rise to an violation. Under analysis, our established constitutional we conclude that challenged rationally NYPD related to a number of legitimate governmental purposes.3

Accordingly, because the NYPD withstands rational equal protection review, basis rejected. defendant’s claim must be

I—II—I h-H Due Process person “[n]o Under the United States Constitution, shall be deprived liberty, property, process life, . . . of or without due (US V). provides law” Const Amend The New York Constitution (NY 6) protections § “[w]e for similar Const, I, art and have at protective times found our Due Process Clause to be more rights counterpart” (Hernandez, than its federal 7 NY3d at 362). process concept is, course, Due a flexible that calls for procedural protections particular such as the situation (Mathews [1976]). Eldridge, demands v 424 319, US 334 “Determining process any whether additional is due in exempts 2. The dissent preservation opts defendant from the rule and judicial “publicly-available “take notice” of documents” in order to bolster arguments that defendant appeal (dissenting asserts for the first time on op 5). n 512 We decline to do the same. analysis 3. The City. dissent limits its to the context of New York But our pronouncements statewide, constitutional apply including to areas with dramatically resources, practices, populations, different law enforcement 7). “linguistic (dissenting op needs” analysis at 513 n The dissent’s would call question investigatory into employed by tools law enforcement statewide. balancing requires particular proceeding the interests sought protected” to be the individual interest State citing (People [1995], Mathews, Ramos, 678, 684 v 85 NY2d 424 US at him that the NYPD’s failure to offer

Defendant contends based on a barrier violated his a coordination test rights process under the federal and state constitutions. due duty police matter, have no to assist However, as an initial establishing gathering evidence or a defense a defendant (People Finnegan, [1995]). 53, 58 Nor does a defend v 85 NY2d investiga right police perform to have the a certain ant have a may yield help step simply because it information tive (Arizona Youngblood, 51, [1988]; 488 US 58-59 ful to him v People Hayes, And, while defend v 17 NY3d 51-52 process right qualified due to a ants have a constitutional during judicial proceedings (People interpreter Ramos, v [1970]), right implicated during is not NY2d same investigation suspected driving; pre-arrest intoxicated discretionary, the administration of coordination tests—a gather investigative technique designed to evidence of intoxica judicial, quasi-judicial, proceed not a or administrative tion—is ing. any implicated event, above, state In as discussed are The State has a clear interest interests substantial. avoiding prohibitively expensive adminis- cumbersome requested providing trative and fiscal burdens of transla- strong ensuring interest tion services. The State also has accuracy physical tests, coordination and the use of through qualified interpreters translated instructions—either through multilingual compromise or officers—could the test’s reliability. involved, state interests de- Given the substantial rejected. process fendant’s due claim must be *9 IV Appellate Accordingly, the Term should be af- the order of firmed. (dissenting). Defendant Jose Aviles claims the J. Rivera, (NYPD) Department violated his federal and

New York Police process rights protection and due when it denied state solely language physical test on his him a coordination based policy offering the of the skills. The defend NYPD everyone persons except those who are coordination test to perceived non-proficient English1 grounds to be in on the reliability it ensures the and test to do otherwise is administratively impracticable repre- and burdensome. These inadequate policy potentially sentations are a overcome places position certain in a individuals better than others to charges, especially defend criminal when NYPD protocols place has access and resources available City’s linguistically to address the needs of New York diverse City’s communities. Given New York commitment to access to justice regardless of status, refusal NYPD’s equally administer a test all coordination defend- violates equal protection rights. ant’s federal and state For these reasons, I dissent.

L charged operating was with while Defendant a motor vehicle drugs under the influence of alcohol or of violation Vehicle (1) (3). § and Traffic Law 1192 Defendant was arrested police pulling precinct after he as defendant drove with collided vehicle out aof According arresting down street. to the speech officer, defendant of alcohol, slurred, smelled his was unsteady Upon and he was his feet. his arrest defendant (IDTU) Testing was taken Intoxicated Driver Unit at the breathalyzer Bronx,2 45th Precinct in the where he took a test (BAC) which .06, indicated blood alcohol content of which legal per was below the minimum for a se violation. Ordinarily, op- the IDTU would have offered defendant portunity physical provided test, to take a coordination as purposes clarity uniformity, adopted parties’ 1. For I have description persons proficient” “non-English denied the coordination test as (LEP). proficient” English Equal or “limited Access to Human Services provision City’s Rights person of New York Human defines a Law LEP as “an being, evidently, individual who identifies or is as unable to communicate meaningfully agency personnel agency English with or contractor (Administrative primary language” City [the individual’s] not Code of of NY [o]). Though majority being § 8-1002 characterizes defendant not as prius speaks LEP individual because of the nisi court’s determination that he “only Spanish, 1), English” (majority op clearly and not 501 n at defendant City’s understanding falls within New York a LEP individual. constitutionality 2. The issue Court before the is the of the unofficial NYPD to withhold the coordination test from LEP individuals at New unique City, York are York IDTUs. These IDTUs to New as the officers municipalities sobriety in all other in the state conduct roadside. Ac- tests NYPD, cordingly, expectations the use the IDTUs creates different processing NYPD officers have additional resources to them available for the Accordingly, my analysis of drunk limit to the ID- drivers. I NYPD TUs. *10 508 (Guide). The coordination test DWI Patrol Guide

the NYPD requires simple complete recit- tasks: a series to an arrestee straight-up standing with ing person’s address, and name turning steps walking eyes for nine and heel-to-toe closed, standing leg, pointing starting point, one on back to the walk writing finger, their tip and an index of the nose with to the will signature Guide, an officer to the address. Pursuant or asking the arrestee to typically the tasks before demonstrate on complete the test based Here, was denied them. defendant cursorily identified as administrator what the test the basis of “language barrier.” a accusatory instrument to dismiss the

Defendant moved grounds federal and state violated his that NYPD the protection failing rights by process to offer the test due and arguing People opposed language. motion, The based on his avoiding possible legitimate interest has both NYPD by withholding from non- coordination test confusion English speakers process have a due that defendant cannot

and investigatory procedure. in an interest past prius it had addressed that in the court stated The nisi by permitting language-based counsel to defense claims similar People’s adminis- on the failure to witnesses cross-examine regard- charge providing an adverse inference and ter the test ing police However, in this the test. failure to administer concluding granted de- motion, that where case, the court very the coordination test low,”denial of BAC was “so fendant’s “merely only Spanish” speaks his constitu- violated he potentially by failing provide rights him with access to tional exculpatory under these The noted that evidence. court likely to have of fact ... “the trier circumstances memorializing seeing heightened the de- video interest fendant’s abilities.” Department, Appellate on the basis Term, reversed First (112 [2013]), People after the nisi AD3d 5 decided Salazar v People granted

prius motion and before defendant’s court challenges rejected appealed, constitutional which similar and administering the coordination test the NYPD’s English (People 126[A], 2015 NY Aviles, v 47 Misc 3d [2015]). granted Judge [U] Slip Op de A of this Court (People appeal Aviles, v 25 NY3d leave to fendant

IL challenges to NYPD’s constitutional renews his Defendant policy, is nondiscrimina- reassert that the and the tory it would be burdensome unfeasible *11 English. equal administer other than in test Defendant’s protection People’s deny- claim has merit basis for ing him the no test has rational on the basis facts of this case. equal protection guarantees, both

Under federal and state government disadvantages suspect action that a class or right subject scrutiny a burdens upheld only fundamental is to strict and compelling justification if there is a for the action (Johnson v 499, US California, [2005]; 543 505 Matter of [2001]). facially Novello, 418, Aliessa v 96 NY2d 431 A neutral policy subject scrutiny government’s also is to strict if the act disparate impact suspect long has a on a class, so (Washington discrimination Davis, is intentional v 229, 426 US [1976]). government subject 239 Otherwise, action is to the requires review, rational basis standard of which that the ac rationally legitimate governmental purpose tion be related ato (Board Trustees Garrett, 356, Univ. Ala. v 531 US 367 [2001]; Cuomo, see also Maresca v 64 NY2d 242

Here, defendant claims that he was discriminated suspect policy based on a classification because the NYPD categorizes language, arrestees based on which defendant proxy origin, recognized claims serves as a suspect for his national a equal protec- classification under and both federal state jurisprudence. response, tion In maintain that the person any test is neutral its face because a national origin English may who understands take the test. (717 [2d

In v 1983], Soberal-Perez Heckler Cir F2d cert [1984]), denied 466 US 929 in decided the Second Circuit “[1] anguage, by identify itself, stated that not does members of suspect challenge Depart- a class.” That case involved a sending agency ment of Health and Human Services English. applied forms in The court rational hold- review, basis ing Department legitimate providing that the a had interest English government its forms because the its conducts English affairs in and “those who wish to become naturalized (id. 42). English” United States citizens must learn to read However, decision, since Soberal-Perez our nation’s understanding language plays of the role in our multiethnic society involving In York, has evolved. Hernandez v case New prosecutor’s peremptory challenges Spanish- a speaking prospective to Latino

jurors, Supreme the United States Court recognized may “[i]t groups be, that well for certain ethnic and proficiency particular language, communities, in a

in some surrogate like as (500 race under treated color, skin should be an protection analysis” US 352, 371 ^[1991] [cita- omitted]). persons that affects all who Indeed, a tions regard particular given language speak to the “without surrounding may individuals, events circumstances” (id. pretext at 371- for racial discrimination” found “to be a be language may recognizing judiciary not alone ethnicity, origin, proxy and race. The as a for national serve acknowledged a has link between executive also branch discrimination and issued Executive Order (Clinton) (“Improving August 11, Access to 13166 on No. *12 Proficiency”) English to for Persons with Limited Services Rights statutory compliance title with Civil Act VTs ensure origin against prohibition discrimination based on national (42 2000d). federally programs §USC To achieve its funded federally federally goal improve “to access to conducted and as- persons programs who, for a result and activities of sisted (65 proficiency” English origin, in their national are limited 2000]), [Aug. requires Reg Executive 50,121 16, Fed Order agencies guidance to draft documents on how those federal operate programs in a manner that is consistent with both will Department regulatory of Justice’s instruc- title VI and the tions. Department provided guidance of has on Execu-

The Justice helped municipalities comply 13166, Order to with tive regulations (e.g. implementing of the At- title VI and its Office torney General, Federal Government’s Renewed Commitment Language Obligations Executive Order 13166 to Access Under Rights Department [Feb. 17, Justice, of Civil Divi- 2011]; US Planning Language for sion, Access Assessment and Tool Feder- 2011]). Federally Programs [May ally Conducted and Assisted Department clear of has made that criminal Justice custody persons police suspects are entitled to and other police protections during (Department VI encounters with title Recipients Justice, Assistance of Federal Financial Guidance Origin Regarding Title VI National Prohibition English Affecting Persons, Limited Proficient Discrimination 2002]). [June Reg 41,455, It has further 41,459 67 Fed subject recipients title VI must directed that of federal funds meaningful steps to ensure access their take “reasonable

511 [limited programs by English proficient] persons” and activities (id.).3 interrelationship language,

The limited view the ethnic- ity, origin and national as articulated in Soberal-Perez does not represent today’s appreciation nuanced of how historically justice groups affects access to based on national origin. eye reality, anWith to this continued the Court should safeguard against English-only policies the use of “[t]he group manipulate language dominant cultural can aas groups tongue device for exclusion disfavored whose mother (Kiyoko English” Knapp, Language is not Kamio Minorities: Forgotten Immigr Victims Discrimination?, LJ Geo 752-753

Notably, compliance legal with mandates as a means for multilingual society treatment all of members of our can through government’s technological be realized use of linguis- advances and increased human resources that address simultaneously especially tic needs and contain costs. This is City, population English true New York where the of limited (New speakers nearly people City Mayor’s two million York Immigrant Maps). Affairs, Office of Constituent & Facts In recognition of the needs of its diverse communities and of its legal obligations, New York has issued an executive order directing agencies provide language compli- its services in (NY City with VI ance title Executive Order No.

[July [“Citywide Policy 2008] Language 22, on Access to Ensure Delivery City the Effective Services”]; of see York also New Mayor’s Operations, Language Office of Services Access Initia- https://wwwl.nyc.gov/site/operations/projects/language- tive, access-services.page). developed Language NYPD also Access procedures govern Plan and issued internal that law enforce- provision persons English ment service who are not fluent in context, In Equal Employment 3. the title VII the Opportunity Commis- (EEOC) acknowledged sion has language the interconnectedness origin, language policies discriminatory national and that neutral can mask disparate such, broadly animus and guidelines treatment. As the EEOC origin “linguistic define national discrimination to include characteristics of a (29 origin group” purposes for national title VII enforcement CFR 1606.1). employers primary language “[t]he The EEOC further advises (id. origin of an individual is an often essential national characteristic” [a]). Relatedly, recently ap- § 1606.7 the Southern District New has York plied interpretation English-only policy the EEOC’s to hold that an in the origin workplace prohibition violated title VU’s on national discrimination USA, (Equal Opportunity Empl. Sephora LLC, Supp v 419 Commn. F 2d 408 2005]). [SD NY 512

(New 14, Access Plan Language [June York Police Department, 2012], http://www.nyc.gov/html/nypd/downloads/pdf/ cached at http:// public_information/lap_June_2012.pdf, New www.nycourts.gov/reporter/webdocs/lap_June_2012.pdf; Guide, 212-90, Procedure No. Police Patrol Department York Proficient English with Limited for Interaction Guidelines 2013]). 16, official Ac- Language NYPD’s [Oct. Persons [LEP] a multi-language officers either use Plan encourages cess known Line”4 to handle “Language as most service telephonic needs, or that are certi- to contact officers of its interpretation which Program, Initiative Language fied NYPD’s through (Language in critical Access languages trains NYPD officers 4-5). Guide of- prompts at NYPD’s Patrol Comparatively, Plan self-identify bilingual as ficers to on other officers who rely (Guidelines English Limited Proficient for Interaction with l).5 Persons [LEP] services applies

This application deliberate where, consent to administer IDTU, for example, (see People a video in by Spanish test is obtained breathalyzer how of Salazar, v 5, [explaining [1st 2013] 112 7-8 Dept AD3d an using consent to administer breath test ficers obtain Rosario, v 445, 2d People video]; 136 Misc 447-448 interpretive [same]). Similarly, NYPD has Ct, County 1987] Bronx [Crim officers deliver the instruc bilingual relied on previously (see Salazar, test breathalyzer tions on how to take the AD3d at private company provides on-demand Language 4. Line is a day. through telephone, People in need

interpretation interpretation hours a interpreter, immediately an who can call to connect with people speak more who do conversation between two or not facilitate a Solutions, Interpreting, https:// language (Language Line Phone same 2016]). [last Nov. www.languageline.com/interpreting/phone accessed thin, any appeal is and the failed to submit 5. record Yet, defense counsel submit- information about NYPD’s resources. Plan, serving Language guide for LEP Access NYPD’s field ted NYPD’s individuals, documents, Court supporting all of which the is and other (see Crosson, judicial v 95 NY2d permitted to take notice Affronti support Thus, majority’s no contention that there is record false, equipped to interact with LEP individuals is the claim that NYPD *14 publicly-available that both intends to and documents indicate NYPD these doing capable so. is of majority’s assertion, preserved claim Contrary defendant his that to the policy denying language test on is unconstitutional of the based NYPD’s Therefore, interpretative it capable providing services. is because NYPD is regarding wholly prudent public both proper and to consider all documents 720). (see City’s Affronti, linguistic 95 NY2d at NYPD’s and the resources City’s Given New York commitment to access and policy NYPD, the resources available to the the here does not survive even rational Furthermore, basis review. the NYPD policy rationally legitimate governmental is not related to purpose separate by denying for the reason that defendant the opportunity People gather test, NYPD an forfeits for the People If, evidence of intoxication. claim, as the the ultimate goal safety roadways, policy tois ensure the of our the falls short.6 People

Nevertheless, the maintain that the is ratio- nally ensuring reliability related to its interest in the According People, only coordination test. to the the test can be by specially rely administered trained officer who cannot on any type interpreter service to communicate the test instruc- accuracy tions to the arrestee. The of this assertion is neither People present obvious, intuitive nor and the failed to evidence support way in of their claim that there is no other to maintain integrity they deploy the test, the or that are unable to test languages administrators in fluent most often in demand.7 troubling More is that the source of this information about difficulty administering in the coordination test contained prosecutor’s prius in a affirmation, submitted to the nisi court opposition People in provided to defendant’s motion to dismiss. The support

no evidence to the contention that majority goal 6. The withholding contends that in NYPD’s the test is “avoiding delayed (majority or erroneous results due to a barrier” op assertion, at Contrary rationally this the NYPD does not any legitimate goal, further as NYPD has the available means for immediate interpretive delay and accurate services that would eliminate both the testing potential majority’s goal and the for error. The claim that the NYPD unsupported by is to avoid detrimental results is no factual or scientific basis the record because there is propounded by for such a claim. 7. I need languages, despite majority’s not define the most demand suggestion (majority op 505), governmental otherwise at because there is City consensus in New York population’s linguistic about its needs. NYPD’s Language Korean, languages” Chinese, Access Plan its Spanish, identifies “baseline (New Creole, Department, Haitian Russian and Italian York Police 2012]). Language City Access Plan 10 [June The New York Human Rights city provided Law mandates all services and documents be (Administrative 8-1004). languages” 8-1003, same g]; “covered Code 8-1002 §§ requires City’s Executive Order also all New York services be (NY provided in languages these six Executive Order No. 120 of 2008 [July [“Citywide Policy Language 2008] Access to Ensure the Effective Services”]). Delivery City Thus, government city has identified those languages spoken. most *15 this administer, instead ask to but test is difficult

coordination majority’s Despite uncritical the their claims. to credit Court they People’s acceptance administer cannot the mantra English, decline the we must in other than a this test People’s Indeed, where to them their word. invitation take rights stake, are at our review constitutional defendant’s especially punctili- People’s reasons should be and the ous. unpersuasive People’s arguments the also are

The serving Language LEP individu- Plan for own Access NYPD’s provides result, a close examination a different als physical claim. The coordina- test belies the the coordination manipulation and or no mechanical technical involves tion test physical telling person depends certain the to make explain why People same mecha- fail to the The movements. English language other than instruct in a available to nisms breathalyzer rights can- to the test and the use related on the employed purposes of the coordination modified for not be or test are far for the coordination Indeed, test. the instructions perform simple required to to consent those obtain more than comprised breathalyzer test. The coordination test is the easily e.g. translated, that can be declarative statements short, (toque your forefinger” your con nariz derecha), el nose su “touch with (camine dedo), straight en linea or “walk in a line” (levante derecha). People’s pierna your right leg” The la “raise argument common sense.8 contradicts already does far more address fact is that NYPD bilingual offi- where access field, the barriers challenges, Despite interpreter is cer or an less controlled. policy requires to make efforts to officers the official NYPD recognition of “the LEP out of with individuals communicate importance communication between effective and accurate (Language community they employees Ac- serve” its difficult to administer majority’s characterization of this test as 8. The However, Attorney. of an Assistant District on an affirmation based experienced administrator who has evidence from an failed to submit either firsthand concerning testimony complexity expert linguistic knowledge test’s or about the solely provided by the test need for instruction English. be evidence, People’s “proof” is but such Absent administrator shell. disregarding Yet, majority adopts People’s argument while variety test in a manner it can use to administer this has a of tools NYPD that does rights. not defendant’s constitutional violate 2).9 Accordingly, legitimate Plan at cess NYPD does not have maintaining interest its current and its denial of the rights equal protection test to defendant violated his under the law.10

(—I n —I beyond justice system It is cavil that the criminal cannot procedures advance disadvantage that benefit certain individuals but majority approves system Yet,

others. justice English speakers given potentially in which are access to exculpatory cases, evidence DWI while the same beneficial process English language is denied to those whose skills are origin. limited due to their national Such diminished treat- ment under the law unconstitutional and counter to our unacceptable especially sensibilities of fairness. It is where the equality means to ensure are within reach. explained, Appel-

For the I reasons have I would reverse the accusatory late Term and dismiss the Therefore, instrument. I dissent. Judge Judges Chief Pigott, DiFiore Abdus-Salaam Judge opinion concur; dissents in an in which Stein Rivera

Judge Fahey concurs. Order affirmed. long failing 9. The NYPD has been on notice address disparate impact regulations,

needs is a violation of VI title based on national origin. Department In report of Justice issued a it which compliance report informed NYPD that it full VI. was not in with title departed frequently indicated that officers from NYPD’s internal when interacting provide with LEP individuals because NYPD did not sufficient responded by updating Language translation services. NYPD its Plan. Access 10. Since defendant equal protection has established meritorious chal- lenge, I process have no occasion to address his due claim.