On November 1, 2022, the court held a combined Huntley/Johnson/Refusal/Dunaway suppression hearing. At the hearing, and in briefing submitted afterwards, the defense argues that various evidence must be excluded from trial. They make three arguments. First, that the People failed to establish the police lawfully stopped Mr. Mohabir’s car and arrested him, so the court must suppress the fruits of that conduct. Second, that Mr. Mohabir made statements involuntarily, so the court must suppress those statements. And third, that the police did not comply with V.T.L. §1194, so the court must suppress Mr. Mohabir’s refusal to submit to a chemical test. For the following reasons, the motions are denied. FINDINGS OF FACT At the hearing, the People called one witness to testify, Officer James Loizos of the New York Police Department. The parties also introduced body-worn camera video footage from the scene of the car stop and video footage from the 102nd Precinct. The court finds that Officer Loizos was generally credible, and credits the specific facts found below. Officer Loizos has worked for the NYPD for over nine years and is currently assigned to highway patrol in Queens. He enforces driving-while-intoxicated (“DWI”) laws and has observed intoxicated people before in that capacity. He has also encountered intoxicated people during his regular patrol. In determining whether a person is intoxicated, he looks for signs like bloodshot, watery eyes; an odor of alcohol; slurred speech; and swaying. On November 14, 2021, Officer Loizos was conducting DWI enforcement on highways in Queens. He was working with his partner named Officer Gleason. The two officers were in an unmarked vehicle and in uniform. At around 1:30 a.m. on that day, Officer Loizos was traveling east on Grand Central Parkway in Queens. From three car-lengths behind, he observed a grey Hyundai sedan in the center lane. The sedan repeatedly swerved back and forth from the center lane to the right lane, crossing over the broken white lines, without using its turn-signal. It also rode between the lanes over the broken white lines. The car was not traveling above the speed limit, but it was braking erratically — the car would speed up, then suddenly brake and slow down without discernable reason. As a result, Officer Loizos activated his turret lights and, on a loudspeaker, instructed the vehicle to pull over. Officer Loizos acknowledges that drivers may fail to maintain their lane for many reasons. One reason is impairment from alcohol. But other reasons could include cell-phone use, exhaustion, or the use of a GPS device. In the past, he has stopped drivers for not maintaining their lane and found that they were not impaired by drugs or alcohol. After Officer Loizos instructed the Hyundai to pull over, it did. The car pulled over onto an area that was narrow and tight. It navigated the maneuver safely. Officer Loizos and his partner approached the vehicle from the passenger side. Inside the vehicle, he observed Mr. Mohabir in the driver’s seat. Mr. Mohabir was holding a lit cigarette. No one else was in the vehicle. The passenger-side window was rolled down. Officer Loizos asked Mr. Mohabir for his driver’s license. Mr. Mohabir appeared a little disoriented because he took some time to pull the license out of his wallet. Officer Loizos also observed Mr. Mohabir to have bloodshot and watery eyes, and he could smell alcohol coming from the vehicle. He asked Mr. Mohabir if he had been drinking, and Mr. Mohabir said no. Officer Loizos then asked Mr. Mohabir to step out of the vehicle. He did so because he wanted to determine Mr. Mohabir’s level of intoxication. He directed Mr. Mohabir to walk alongside the car to the rear and then to wait at the guardrail. When Mr. Mohabir stepped out, Officer Loizos observed that the odor of alcohol was emanating from his breath. Officer Loizos’ body-worn camera shows that Mr. Mohabir walked to the guardrail without issue. Officer Loizos believed that Mr. Mohabir was intoxicated and requested that he submit to a preliminary breath test. Mr. Mohabir refused. Officer Loizos then arrested Mr. Mohabir and transported him to the 102nd Precinct to conduct further testing. That occurred at 1:47 a.m. Mr. Mohabir was cooperative. The further testing included the Intoxicated Driver Testing Unit (“IDTU”) battery of tests. That battery normally includes two kinds of tests: first, a chemical breath test using an Intoxilyzer 9000; and second, Standardized Field Sobriety Tests (“SFSTs”), which consist of a nystagmus eye exam, a walk-and-turn test, and a one-leg-stand test. At around 2:37 a.m., at the 102nd Precinct, Officer Gleason asked Mr. Mohabir if he would take the chemical test. Mr. Mohabir said no. Officer Gleason then warned Mr. Mohabir of the consequences of his refusal. Specifically, he said that “[i]f you refuse to submit to a chemical test, or any portion thereof, it will result in the immediate suspension and subsequent revocation of your license or operating privilege whether or not you are convicted of the charge for which you were arrested.” He added, “[i]f you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest.” Officer Gleason again asked Mr. Mohabir if he would submit to the chemical test. Mr. Mohabir again said no. Officer Gleason then attempted to conduct the SFSTs, but Mr. Mohabir refused to take those tests, as well. Officer Gleason then read Mr. Mohabir the standard Miranda warnings and Mr. Mohabir waived his Miranda rights. After that, Officer Gleason asked Mr. Mohabir a series of questions to which Mr. Mohabir responded with various answers. During the interrogation, Mr. Mohabir stood up and asked to use the bathroom. The police told him to sit down and said that he could use the bathroom when they were done. On cross-examination, Officer Loizos admitted that he did not have an independent recollection of some details. Indeed, he admitted that “most” of his testimony about Mr. Mohabir’s alleged watery eyes, slurred speech, and unsteadiness were based off his “documentation” from the arrest. He noted that he is trained in filling out arrest-related paperwork and doing so truthfully, accurately, and completely. He explained that because the arrest was “a year ago,” he was “going off documentation at this point.” He did, however, have an independent recollection of smelling alcohol. CONCLUSIONS OF LAW I. Johnson/Dunaway At a Johnson/Dunaway hearing, the People “bear the burden of going forward to establish the legality of police conduct in the first instance.” (People v. Harris, 192 AD3d 151, 157-58 [2d Dep't 2020]). “If the People establish the legality of the police conduct by credible evidence, the defendant bears the burden of establishing that the arrest was not based on probable cause or that the police conduct was otherwise illegal.” (Id. [internal quotation marks omitted]). “Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible.” (Id. [internal quotation marks omitted]). “Credibility is a many faceted concept…requiring a careful assessment of a number of subtle factors before testimony can be labeled as believable or unbelievable.” (People v. Wise, 46 NY2d 321, 325 [1978]). “While it may be accurate to say that no one factor predominates, there are two fundamental considerations in evaluating whether a particular witness is speaking the truth: the honesty of the witness and [their] ability to recall details.” (Id.). The defense first argues that crediting Officer Loizos’ testimony would deny Mr. Mohabir his constitutional right to confront the witnesses against him. (Def. Mem. of Law at 3). They note that the constitutional confrontation right “mandates that a criminal defendant be permitted to meaningfully cross-examine the witnesses.” (Id. at 7). They argue that because Officer Loizos based his testimony off his paperwork, and not “first-hand observations,” that he could not be meaningfully cross-examined. (Id.). The People counter that the constitutional confrontation right was satisfied because “Officer Loizos was present in court to testify and was subject to a long line of cross-examination questioning by the Defense.” (Pr. Mem. of Law at 7). Both parties assume that the right of confrontation applies to suppression hearings, but that is not the law. “[T]he right to confrontation is a trial right available against witnesses at trial.” (People v. Mayes, 19 Misc 3d 48, 51 [App. Term, 2d Dep't 2008]). As a result, it does not apply here, outside of a trial, in a pretrial suppression hearing. (People v. Mitchell, 124 AD3d 912, 914 [2d Dep't 2015] [no constitutional right to confrontation in a pretrial suppression hearing]; People v. Lee, 169 AD3d 404, 404-05 [1st Dep't 2019] [same]; People v. Brink, 31 AD3d 1139, 1140 [4th Dep't 2006] [same]; see also People v. Leon, 10 NY3d 122, 126 [2008] [no constitutional right to confrontation at sentencing]; but see Shaakirrah R. Sanders, Unbranding Confrontation As Only A Trial Right, 65 Hastings L.J. 1257 [2014]). Therefore, there is no applicable confrontation issue here. The defense next argues that the court should refuse to credit Officer Loizos as a matter of law. They argue that a fundamental precept of in-court testimony is that a witness “testify to a matter only if the witness has personal knowledge of the matter.” (Def. Mem. of Law at 6). They explain that “personal knowledge” is “knowledge based on the exercise of the witness’s own senses.” (Id.). They conclude that if a witness “does not have an independent memory of events,” then that witness fails to testify from personal knowledge and cannot be credited. (Id. at 6-7). The People respond that the mere fact that Officer Loizos based some — and, as he noted, not all — of his testimony off his own paperwork does not mean his testimony cannot be credible as a matter of law. (Pr. Mem. of Law at 7-8). They argue that a witness refreshing his recollection with paperwork before his testimony is functionally equivalent to doing so during his testimony. (Id.). The defense’s argument here has been raised before the Appellate Division on several occasions, and those courts have never endorsed it. (See, e.g., People v. Reyes, 136 AD3d 443, 443 [1st Dep't 2016]; People v. Gonzlez, 292 AD2d 394, 394-95 [2d Dep't 2002]; People v. Norris, 273 AD3d 482, 482 [2d Dep't 2000]). This court follows appellate law, and so it declines to adopt that argument, as well. Finally, the defense argues that, even if the court credits Officer Loizos’ testimony, the People still failed to establish probable cause to stop Mr. Mohabir’s vehicle and arrest him. There is little debate between the parties about the stop in this case. An automobile stop is lawful only when based on “probable cause that a driver has committed a traffic violation”; on “reasonable suspicion that the driver or occupants have committed, are committing, or are about to commit a crime”; or on “nonarbitrary, nondiscriminatory, uniform highway traffic procedures.” (People v. Hinshaw, 35 NY3d 427, 430 [2020] [internal quotation marks omitted]). Here, the People established that Officer Loizos lawfully stopped Mr. Mohabir’s vehicle because he saw it repeatedly swerve back and forth from the center lane to the right lane, and cross over the broken white lines, without using its turn-signal. He also saw it ride between the lanes over the broken white lines. This was probable cause of a traffic infraction. (E.g., V.T.L. §1163[d]; see also People v. Hao Lin, 56 Misc 3d 140[A], at *1 [App. Term, 2d Dep't 2017]). The question of probable cause to arrest is closer. In determining whether an officer has probable cause to make a DWI arrest, the standard is whether “it is more probable than not that the defendant is actually impaired.” (People v. Vandover, 20 NY3d 235 [2012]). “Conduct equally compatible with guilt or innocence will not suffice.” (Id. at 235 [internal quotation marks omitted]). The People meet their burden where they elicit credible testimony that, before the arrest, the officer observed the accused to have “bloodshot, watery eyes” and “dimensions of actual physical coordination impairment.” (See People v. Gullo, 51 Misc 3d 150[A], at *1 [App. Term, 2d Dep't 2016] [finding that sufficient to establish "reasonable cause"]). However, the People fail to meet their burden where the record does not establish “actual impairment.” (People v. Vandover, 31 Misc 3d 131[A], at *1 [App. Term. 2d Dep't 2011]). As a result, where there are “no signs of mental or motor impairment,” an “odor of an alcoholic beverage, an admission of the consumption of alcoholic beverages six hours earlier, glassy bloodshot eyes and a fatigued demeanor are insufficient to establish probable cause for impairment.” (Id.). Here, there is some evidence of actual impairment. The People elicited testimony that Mr. Mohabir repeatedly swerved back and forth from the center lane to the right lane, and crossed over the broken white lines, without using his turn-signal; rode between the lanes over the broken white lines; and was braking erratically. Officer Loizos’ body-worn camera shows that Mr. Mohabir’s reactions and movements appeared delayed when he asked Mr. Mohabir for a driver’s license. However, there is also some evidence in the record suggesting that Mr. Mohabir was not impaired. When Officer Loizos turned on his turret lights, Mr. Mohabir safely navigated his car to a tight position on the narrow shoulder of the Grand Central Parkway. And Officer Loizos’ body-worn camera appears to depict that when directed to step out of the car and walk to the guardrail, Mr. Mohabir appeared to do so without problem. There is evidence of alcohol consumption in the record. Officer Loizos credibly testified that he smelled alcohol coming from the vehicle and from Mr. Mohabir’s breath. And the body-worn camera shows that Mr. Mohabir’s eyes were glassy, bloodshot, and watery. Ultimately, because the officer’s observations of swerving and erratic braking indicate actual impairment, and there is indication of alcohol consumption, the court concludes that there was probable cause to arrest Mr. Mohabir. (See People v. Bici, 32 Misc 3d 136[A], at *1 [App. Term, 2d Dep't 2011]). Of course, probable cause is a minimal standard, one that only, in effect, determines whether this case should go forward to trial. The ultimate question of whether the People can establish proof beyond a reasonable doubt will be one for the jury. The Johnson/Dunaway motions are denied. II. Huntley In arguing that some of Mr. Mohabir’s statements were made involuntarily, the defense argues only that during the interrogation, “Mr. Mohabir became increasingly unwilling to answer questions,” asked “to go to the bathroom,” and when he attempted to stand up to do so, was “instead told by police to sit down.” (Def. Mem. of Law at 14-15). The officers told him that he could use the bathroom when they were done. This interaction took place after Mr. Mohabir received Miranda warnings and waived his Miranda rights, explicitly agreeing to answer questions. The defense makes no specific argument that the warnings or waiver were not sufficient. Reviewing “all of the surrounding circumstances,” the People have proven beyond a reasonable doubt that the statements were voluntary. (E.g., People v. Collins, 106 AD3d 1544, 1545 [3d Dep't 2013]; People v. Ruger, 279 AD2d 795, 796 [3d Dep't 2001]). The Huntley motion is denied. III. Refusal The record establishes that Mr. Mohabir’s refusal to submit to a chemical test was not elicited in violation of V.T.L. §1194. That law requires that for the People to admit evidence of a refusal to submit to a chemical test in a DWI case, they must make a predicate showing: that “the [accused] person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal” and that “the person persisted in the refusal.” (V.T.L. §1194[f]). The People have done so, and the defense raises no serious question about it. Accordingly, the motion to suppress the refusal as violating V.T.L. §1194 is denied. The foregoing constitutes the orders and decisions of the court. Dated: January 3, 2023
