875 N.Y.S.2d 822, 2008-52334, People v.

Oleksiyiv
Page 822
Page 1133(A)
875 N.Y.S.2d 822
21 Misc.3d 1133(A)
The People of the State of New York,
v.
Ihor Oleksiyiv, Defendant.
2007NA000079
2008-52334
New York District Court, First District, Nassau
November 20, 2008
Editorial Note:
This case is not published in a printed volume and its disposition appears in a table in the
reporter.
COUNSEL
Hon. Kathleen Rice, Nassau County District Attorney
Attorneys for Defendant: Raiser & Kenniff, P.C.
OPINION
Andrew M. Engel, J.
The Defendant is charged with driving while intoxicated and driving on the wrong side of the
road, pursuant to VTL 1192(3) and 1120(a), respectively.
The Defendant's initial omnibus motion was granted to the extent of directing a hearing be
held to determine whether the Defendant's alleged statements were involuntarily made within the
meaning of CPL 60.45, whether the arresting officer lacked reasonable cause to believe the
Defendant was operating his vehicle in violation of any subdivision of VTL 1192, and whether
any tangible evidence and testimony of any police officers pertaining to their observations of the
Defendant should be suppressed, pursuant to Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684
(1961)and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979). Before that hearing was
held, and following Defendant's motion to reargue, an order was issued expanding the scope of
the hearing to include "whether the Defendant actually consented to having his blood drawn, and if
not, whether it was drawn within two hours of his arrest." (Order 11/28/07, p. 3) On October 30,
2008 the matter was referred to this court (Engel, J.) to conduct a hearing in accordance with
these orders, which hearing was held on that date.
At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search
and seizure, along with statements allegedly obtained as a result thereof, the People have the
burden of going forward, in the first instance, to establish the legality of the police conduct. People
v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d
334 (1978); People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 A.D.3d
866, 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 N.Y.3d 927, 827 N.Y.S.2d 696 (2006) Once
the prosecution has met this burden, the defendant has the ultimate burden to establish the

illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28
N.Y.2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 N.Y.2d 640, 382 N.Y.S.2d 5
(1976); People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161 (2nd Dept. 1963) The burden is
also on the People to prove, beyond a reasonable doubt, that the statements in question were
voluntarily made before their admission into evidence on the People's case in chief at trial. People
v. Huntely, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965); People v. Valeruis, 31 N.Y.2d 51, 334
N.Y.S.2d 871 (1972); People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625 (1977).
The People attempt to meet their burden through the testimony of Sgt. Daniel Portmore, a
Patrol Supervisor on the Highway Patrol of the Nassau County Police Department and P.O. Jerry
Cooksey, an officer with the Highway Patrol of the Nassau County Police Department. The
Defendant did not call any witnesses. After listening to and observing the demeanor of Sgt.
Portmore and P.O. Cooksey, the court finds their testimony to be credible and makes the following
findings of fact:
On January 1, 2007 Sgt. Portmore was working the 6:30 p.m. to 6:30 a.m. tour, which began
on December 31, 2006. While on patrol he was alone in an unmarked car and in uniform. At
approximately 2:50 a.m. on January 1, 2007 Sgt. Portmore was heading eastbound on Hempstead
Turnpike, in East Meadow, New York, when he observed the car immediately in front of him, a
white Nissan Ultima, make a left hand turn heading northbound on Merrick Avenue, fully in the
lane furthest to the left, for what would otherwise accommodate southbound traffic. Sgt. Portmore
turned in behind the vehicle and activated his lights and siren in an attempt to get the vehicle to
either stop or move to the correct side of the road. The Nissan initially traveled on the wrong side
of the road for approximately two hundred (200') feet and continued for another three hundred
(300') to four hundred (400') feet as it pulled over into the northbound lanes, and then came to a
stop alongside the northbound curb.
Sgt. Portmore pulled his vehicle behind the Nissan, and approached the driver's side on foot.
The driver, who Sgt. Portmore identified as the Defendant, rolled down his window, at which point
the Sargent smelled alcohol coming from the car. Sgt. Portmore also observed the Defendant to
have glassy, red and watery eyes. Sgt. Portmore asked the Defendant if he realized that he was
driving on the wrong side of the road. The Defendant did not respond. Sgt. Portmore then asked
the Defendant if he had had anything to drink, to which the Defendant responded that he was
coming from a party in Uniondale and stated, "I had a couple can't you let me go?" Sgt. Portmore
observed the Defendant's speech to be slurred and also noted that the Defendant, who stated that
he was born in the Ukraine, spoke with a heavy accent, but had no difficulty speaking or
understanding English. The Sargent asked the Defendant for his license and registration, and
observed the Defendant remove his license from his wallet without trouble, but have difficulty
pulling his registration out of the plastic folder in which it was held. The Defendant was then asked
out of his car and was told that Standardized Field Sobriety Tests ("SFST's") were going to be
administered. As the Defendant exited his vehicle and walked to the sidewalk he was observed to
stagger and be unsteady on his feet. Sgt. Portmore then performed SFSTs, as well as a finger to
nose test, which were positive for a number of clues indicating intoxication. Sgt Portmore also
administered a portable breath test, during which there was a problem getting the Defendant to

blow properly, with the Defendant giving only "short puffs, but from which a reading of .19 was
obtained.
Based on the manner in which the Defendant had been operating his vehicle, the
Defendant's demeanor, the odor of alcohol from the Defendant's breath, the Defendant's
bloodshot and glassy eyes, poor dexterity in retrieving his registration, and poor balance, as well
as the results of the SFSTs, Sgt. Portmore was of the opinion that the Defendant was intoxicated.
The Sargent then placed the Defendant under arrest and prepared to take him to Central Testing
for a chemical test.
Officer Cooksey arrived at Merrick Avenue in East Meadow at approximately 3:15 a.m. The
Defendant had already been placed under arrest and was sitting in Sgt. Portmore's vehicle. When
Officer Cooksey first saw the Defendant he observed that the Defendant had glassy, bloodshot
eyes, slurred speech and was unsteady on his feet. Officer Cooksey took the Defendant from Sgt.
Portmore's vehicle to his own vehicle and transported the Defendant to Central Testing.
Approximately twenty (20) minutes after arriving at Central Testing, at around 4:35 a.m.,
Officer Cooksey asked the Defendant to submit to a chemical breath test and read the warnings
contained in form PDCN 38 to the Defendant, without deviation. The Defendant indicated his
consent to the breath test by first signing his name in the space provided for the word "consent or
refuse," and then writing "consent" and signing his name in the appropriate space. A breath
technician then took the Defendant into a back room, out of the sight of Officer Cooksey, for
testing. Shortly thereafter, the Defendant was returned to Officer Cooksey, who was advised that
the Defendant gave an insufficient sample and that the Defendant would have to be taken to the
hospital for a chemical blood test, whereupon, at around 5:15 a.m., Officer Cooksey transported
the Defendant to the Nassau University Medical Center ("NUMC").
Offficer Cooksey met another highway patrol officer, with a blood kit, at NUMC; and, at 6:00
a.m. Officer Cooksey again read the Defendant the warnings contained on form PDCN 38, without
deviation, in English only, as follows:
You are requested to submit to a chemical test of your breath blood to determine whether or
not you are intoxicated or your ability is impaired by the consumption of alcohol. The results of
such test may be used for or against you in court. You may refuse to permit a test to be taken,
however, refusal to submit to chemical test, or any portion thereof, will result in the immediate
suspension and subsequent revocation of your license or driving privilege whether or not you are
found guilty of the charge for which you were arrested. In addition, if you refuse to submit to a
chemical test, or any portion thereof, your refusal can be introduced in evidence against you at
any trial, proceeding, or hearing resulting from this arrest. You may notify a physician of your
choosing to administer a chemical test in addition to the test you are now being requested to
submit to. Will you submit to a breath blood?"
After these warnings were read the Defendant requested to speak to an attorney. The
Defendant was given a telephone and he placed his call, only to receive an answering machine. At
approximately 6:05 a.m. the Defendant gave his consent to the blood test by, again, first signing
his name in the space provided for the word "consent or refuse," and then writing "consent" and
signing his name in the appropriate space. At this time there was medical staff and three (3) police

officers in the area.

REASONABLE SUSPICION AND PROBABLE CAUSE
"A police officer is authorized to stop a motor vehicle on a public highway when the officer
observes or reasonably suspects a violation of the Vehicle and Traffic Law (citations omitted)."
People v. Schroeder, 229 A.D.2d 917, 645 N.Y.S.2d 217 (4th Dept.1996) See also: Liebel v.
Jackson, 261 A.D.2d 474, 690 N.Y.S.2d 94 (2nd Dept.1999); People v. Riggio, 202 A.D.2d 609,
609 N.Y.S.2d 257 (2nd Dept. 1994) Sgt. Portmore's observation of the Defendant operating his
vehicle northbound in the southbound lane of Merrick Avenue for more than two (200') feet
provided the Sargent with a sufficient basis for stopping the Defendant's vehicle.
Following this lawful stop, the manner in which the Defendant's vehicle was operated, his
slurred speech, his unsteady gait, the odor of alcohol, the Defendant's glassy and bloodshot eyes,
his admission that he had been drinking and his inability to perform various SFSTs provided Sgt.
Portmore with probable cause to believe that the Defendant had been driving while intoxicated.
See: People v. Ball, 141 A.D.2d 743, 529 N.Y.S.2d 840 (2nd Dept.1988); People v. Troche, 162
A.D.2d 483, 556 N.Y.S.2d 403 (2nd Dept.1990); People v. Schmitt, 262 A.D.2d 588, 692 N.Y.S.2d
656 (2nd Dept.1999)
VOLUNTARINESS OF STATEMENTS
It is well established that a temporary roadside detention pursuant to a routine traffic stop is
not custodial in nature. People v. Myers, 1 A.D.3d 382, 766 N.Y.S.2d 581 (2nd Dept. 2003) lv.
den. 1 N.Y.3d 631, 777 N.Y.S.2d 30 (2004); People v. Parris, 26 A.D.3d 393, 809 N.Y.S.2d 176
(2nd Dept. 2006) lv. den. 6 N.Y.3d 851, 816 N.Y.S.2d 757 (2006); People v. Gutierrez, 13 A.D.3d
268, 787 N.Y.S.2d 266 (1st Dept. 2004) It is equally well established that after stopping a vehicle
for an alleged Vehicle and Traffic Law violation a police officer may conduct a reasonable initial
interrogation attendant to a roadside investigation. People v. Harris, 186 A.D.2d 148, 587 N.Y.S.2d
425 (2nd Dept.1992); People v. Kearney, 288 A.D.2d 398, 733 N.Y.S.2d 460 (2nd Dept. 2001)
That is what occurred in this matter.
The Defendant's alleged statement, that he was coming from a party in Uniondale and "I had
a couple can't you let me go?" was voluntarily made in response to a proper roadside
investigation. There was no testimony offered, however, concerning the second statement
allegedly made by the Defendant at Central Testing, as disclosed on the People's 710.30 notice.
Accordingly, this latter statement is suppressed.
CHEMICAL BLOOD TEST
Vehicle and Traffic Law 1194, provides, in pertinent part:
2. Chemical tests. (a) When authorized. Any person who operates a motor vehicle in this
state shall be deemed to have given consent to a chemical test of one or more of the following:
breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of
the blood provided that such test is administered by or at the direction of a police officer with
respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at
the direction of a police officer:
(1) having reasonable grounds to believe such person to have been operating in violation of
any subdivision of section eleven hundred ninety-two of this article and within two hours after such

person has been placed under arrest for any such violation; ..., (b) Report of refusal. (1) If: (A)
such person having been placed under arrest; ... and having thereafter been requested to submit
to such chemical test and having been informed that the person's license or permit to drive and
any non-resident operating privilege shall be immediately suspended and subsequently
revoked,..., shall be revoked for refusal to submit to such chemical test or any portion thereof,
whether or not the person is found guilty of the charge for which such person is arrested or
detained, refuses to submit to such chemical test or any portion thereof, ..., the test shall not be
given and a written report of such refusal shall be immediately made by the police officer before
whom such refusal was made.
(f) Evidence. Evidence of a refusal to submit to such chemical test or any portion thereof
shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of
section eleven hundred ninety-two of this article but only upon a showing that the person was
given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that
the person persisted in the refusal.
Relying principally on People v. Brol, 81 A.D.2d 739, 438 N.Y.S.2d 424 (4th Dept. 1981), the
Defendant argues, in part, that the results of the chemical blood test, having been administered
more than two (2) hours after his arrest, are inadmissable. The Defendant's reliance on Brol, id., is
misplaced. While the court in Brol, id. set forth a bright line evidentiary rule holding that "[u]nless
the test is taken within the two-hour limit, [See: VTL 1194] ..., the results are not competent
evidence and may not be received in evidence against the operator (citations omitted)[,]" that
decision has been overruled, sub silentio, by the Court of Appeals and subsequent Fourth
Department decisions.
In People v. Atkins, 85 N.Y.2d 1007, 1009, 630 N.Y.S.2d 965, 966 (1995) the Court of
Appeals recognized that "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 any chemical test administered after that period regardless of the nature of the driver's
consent, is unpersuasive." Harkening back to People v. Ward, 307 N.Y. 73, 120 N.E.2d 211
(1954), which drew a distinction between driver's who were deemed to have consented to a
chemical test and those who voluntarily agree to take the test, the court held, "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." People v.
Atkins, supra . at 1009, 630 N.Y.S.2d 965, 966 (1995) In People v. Zawacki, 244 A.D.2d 954, 665
N.Y.S.2d 172 (4th Dept.1997), citing Atkins, supra ., the Fourth Department altered its holding in
Brol, supra ., recognizing "that the two-hour limit is inapplicable to chemical tests administered
pursuant to defendant's actual consent (citation omitted)." The Fourth Department reiterated this
holding in People v. Hoffman, 283 A.D.2d 928, 725 N.Y.S.2d 494 (4th Dept. 2001) It is worth
noting that here in the Second Department, nine (9) years before the Court of Appeals' decision in
Atkins, supra ., the Appellate Division held "The requirement that the blood sample be obtained
within two hours after arrest, ..., is relevant only with regard to blood samples obtained in cases
where no express consent has been given." People v. Mills, 124 A.D.2d 600, 601, 507 N.Y.S.2d
743, 744 (2nd Dept.1986) This holding has been reiterated time and again in this department.

See: People v. Dixon, 149 A.D.2d 75, 543 N.Y.S.2d 993 (2nd Dept. 1989); People v. Stelmach,
191 A.D.2d 733, 595 N.Y.S.2d 509 (2nd Dept.1993); People v. Casimiro, 308 A.D.2d 456, 764
N.Y.S.2d 198 (2nd Dept. 2003 app.den. 1 N.Y.3d 539, 775 N.Y.S.2d 244 (2003)
The Defendant argues that his consent to the chemical blood test was not knowingly and
voluntarily given. Specifically, the Defendant argues that refusing to submit to a chemical test to be
administered more than two (2) hours after one's arrest will not result in a license suspension or
revocation pursuant to VTL 1194 and that Officer Cooksey's reading the warnings regarding
license suspension and revocation for refusing to submit to the chemical blood test to the
Defendant was erroneous and coercive. The court does not agree.
In People v. Morales, 161 Misc.2d 128, 130, 611 N.Y.S.2d 980, 981 (Crim.Ct. Queens
Co.1994) the court noted that "Subdivision (2)(c) of this statute [VTL 1194] enumerates the
issues which are the subject of an administrative hearing to determine whether a driver's license
should be revoked after a refusal to take a chemical test." The court then went on to hold that
"[r]evocation does not require an affirmative finding that the chemical test was offered within two
hours of the driver's arrest." People v. Morales, supra . at 130, 611 N.Y.S.2d 980, 981 (Crim.Ct.
Queens Co.1994) Similarly, in People v. Coludro, 166 Misc.2d 662, 667 634 N.Y.S.2d 964, 968
(N.Y.City Crim.Ct.,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)." It
logically follows that if evidence of a defendant's refusal is admissible, although the warnings of
suspension and revocation were given more than two (2) hours after a defendant's arrest and his
refusal was likewise more than two (2) hours thereafter, then the reading of those warnings after
the expiration of two (2) hours is not coercive. Consistent with this finding is the fact that VTL
1194(2)(f), which provides for the evidentiary use of a defendant's refusal, makes no mention of a
time limitation, two (2) hours or otherwise, and only requires "a showing that the person was given
sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the
person persisted in the refusal." As noted in People v. Ward, 176 Misc.2d 398, 673 N.Y.S.2d 297
(Sup.Ct. Richmond Co.1998), to find otherwise would render "[t]he offer of the chemical test
sanctioned by Atkins ... a mere gesture."
Based upon the foregoing, it is the finding of this court that the Defendant knowingly and
voluntarily consented to the chemical blood test performed. This finding, however, should in now
way be taken as a determination by this court of the reliability of a chemical test administered
more than two (2) hours after the Defendant's arrest. "Even though a BAC test administered after
two hours may be admissible under Atkins, the scientific relevancy of the test may still be
challenged ...." People v. Holbrook, 20 Misc.3d 920, 864 N.Y.S.2d 726 (Sup.Ct. Bronx Co. 2008)
As noted in People v. Victory, 166 Misc.2d 549, 551, 631 N.Y.S.2d 805, 807 (Crim.Ct. Kings
Co.1995), "[t]he Two Hour Rule ... creates a presumption that the BAC test results are admissible.
Absent such a rule the prosecutor would need to establish by expert testimony the scientific
relevancy of the test in every drunk driving prosecution." Where the test is administered in excess
of two (2) hours after the Defendant's arrest, or the performance of a breath test pursuant to VTL
1194(1)(b), no such presumption of reliability exists. "Consent to taking a test which may lead to
unscientific results should not make the test results competent or relevant." People v. Victory, id.

at, 631 N.Y.S.2d 805, (Crim.Ct. Kings Co.1995)

In the matter sub judice, unlike People v. Holbrook, supra ., the hearing did not address the
question of the reliability of the chemical blood test performed on the Defendant more than two (2)
hours after his arrest; nor did the People have any reason to believe that such testimony would be
necessary at the hearing. As previously indicated, this hearing was limited to the issue of "whether
the Defendant actually consented to having his blood drawn, and if not, whether it was drawn
within two hours of his arrest." (Order 11/28/07, p. 3) Having found that the Defendant consented
to the chemical blood test, the fact that the test was performed in excess of tow (2) hours after his
arrest, shall not, per se, result in the suppression of the test results. This ruling, however, is
without prejudice to the Defendant raising the issue of the tests reliability in the trial part.
This constitutes the decision and order of the court.