People v. Membrino

No such evidence was introduced in the instant case. People v O'Connor (supra) is particularly instructive. The O'Connor court noted that, "It has been recognized that the definition of `operation' for purposes of Vehicle and Traffic Law § 1192 is broader than the ordinary definition of driving. It includes the act of `[using] the mechanism of the automobile for the purpose of putting the automobile in motion even though [the vehicle does not move]'." (Supra, at 1174-1175, citing Matter of Prudhomme v Hults, 27 AD2d 234 [3d Dept 1967].) Importantly, the New York Court of Appeals, in People v Alamo (34 NY2d 453, 458 [1974]), citing Prudhomme, observed, "An established line of authority in New York and elsewhere holds that * * * operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion." Consistent with these findings, the New York Criminal Jury Instructions permit the jury to infer operation based on evidence of a person sitting behind the wheel of a stationary motor vehicle with the engine running. (2 CJI[NY]2d VTL 1192, at 1010-1011.) The O'Connor court concluded, however, "Where there exists a logical, credible explanation such an inference can be defeated." (Supra, at 1075.) No such explanation was offered in the instant case. While defendant may, of course, offer such proof at trial, the uncontroverted evidence demonstrates that there was reasonable cause to arrest the defendant for the crimes charged and the arrest was lawful. That being so, there is no basis to suppress either the refusal or the statement as the tainted fruits of an illegal arrest. The defendant contends that the statements made in response to the roadside inquiry conducted by the officer must be suppressed as the inquiry was not preceded by Miranda warnings. The evidence, however, does not indicate that the defendant was in custody prior to being questioned. While the officer did state that the defendant was not free to leave, there is no indication that intent was ever communicated to the defendant either verbally or implicitly by the officer's conduct. The standard to be applied is what a reasonable person, innocent of the crime, would have believed had that person been in the defendant's position. (People v Dorsey, 118 AD2d 653 [2d Dept 1986].) Here, the officers did not approach the defendant with their guns drawn, there was no suggestion of threats or of physical or constructive restraint, and the detention was brief. The subjective intent of the officer to detain an individual is irrelevant, except insofar as it is conveyed to the individual. (People v Joy, 114 AD2d 517 [2d Dept 1985].) Further, it is clearly established that a roadside inquiry, such as the one in the instant case, does not require the rendition of Miranda warnings before a preliminary inquiry may ensue. (Berkemer v McCarty, 468 US 420 [1984]; People v Hasenflue, 252 AD2d 829, 830 [3d Dept 1998].) Finally, the evidence is clear that the defendant was adequately advised of the consequences of refusing to submit to a breathalyzer exam, particularly with respect to the fact that such refusal would result in certain suspension or revocation of his driving license and/or privileges to drive, and that such refusal could be used against him at trial or a subsequent hearing or proceeding. Defendant's refusal was unequivocal. Defendant's motion to suppress the refusal based on inadequate warnings is therefore denied. [1] A Spanish interpreter was present and interpreted for the defendant. [2] In O'Connor (supra), the defendant pumped the accelerator pedal for the purpose of helping the car's owner, who was using a screwdriver, to start the car. In De Santis (supra), the defendant started the engine solely for the purpose of heating the car. Notably, in Khan (supra) no evidence was presented by the defense, suggesting that reliance on O'Connor and De Santis were misplaced.