People v. Ellis

LARRY M. HIMELEIN, J.

Defendant, who has been indicted for vehicular manslaughter, driving while intoxicated (DWI), and related offenses, has moved to suppress statements she made to the police, a photographic identification of her, and evidence of the alcohol content of her blood. A hearing was held before this court on October 3, 2001. Timothy Cashimere and Michael Vitello of the Olean Police Department, Jeanne Jackson, John Ensell and John Probst of the State Police, Thomas Graves, a respiratory therapist at Olean General Hospital, and Amy Foster, a bartender at Randy's Up the River, were all called as witnesses. The parties have also submitted memoranda. The court generally credits the testimony and makes the following findings of fact and conclusions of law.

At approximately 9:00 P.M. on December 12, 1999, a car traveling on the River Road in the Town of Olean sheared a Amy Foster was tending bar at Randy's on December 12, 1999. Between 7:30 and 8:00 P.M., a young couple came in and the female ordered a draft beer and paid for it. Foster spoke to the couple for a "couple minutes" and then went back to the kitchen. When Ms. Foster returned to the bar, the couple had left. On December 16th, Ms. Foster identified a single photograph of defendant, shown to her by Investigator Jackson, as the woman who had been in the bar the night of the accident.

Defendant moved to suppress her statements to the police, the identification by Amy Foster, and the results of the analysis of her blood. Defendant alleged that the statements were involuntary and made without the proper warnings. She also alleged that she was suffering from a severe diabetic condition and other injuries that affected her mental abilities. With respect to the identification, defendant alleged that it was suggestive and tainted because only defendant's photograph was shown to Ms. Foster. The People opposed the statement and identification hearings on the grounds that the moving papers were "insufficient in law and fact" to warrant a hearing and further, that there was no factual showing of an entitlement to a hearing. However, CPL 710.60 (3) (b) provides that no factual allegations are necessary to support a motion to suppress a statement or an identification, although defendant clearly made a number of factual claims. Notably, the People's response alleges no facts in opposition to those asserted by defendant (see, People v Gruden, 42 NY2d 214). Concerning the motion to suppress evidence of the analysis of defendant's blood, defendant's allegations are clearly on the thin side. All that is asserted is that blood was taken from defendant and that it "may have been illegally obtained without the proper warning or under illegal circumstances." The People's response similarly alleges no facts relating to the drawing of defendant's blood but merely contends that defendant's papers are insufficient to justify a hearing. That contention was also made at the start of the hearing and in the People's posthearing memorandum. Even if a defendant's factual allegations are insufficient, the court is not obligated to deny a suppression motion. CPL 710.60 (3) provides only that the court may summarily deny the motion if the factual claims are insufficient to support suppression of the evidence. Moreover, where a Huntley or Wade hearing has been directed and a Mapp motion involves the same facts and witnesses, the Court of Appeals instructs that the better procedure may be to hold a Mapp hearing at the same time, despite any perceived pleading deficiencies (see, People v Mendoza, 82 NY2d 415, 429). For a number of reasons, this court declines to summarily deny the motion to suppress the blood test results. While defendant's allegations are sparse, there is a claim that blood was drawn without a proper warning. Further, the circumstances surrounding the accident might have made it difficult to make factual assertions. Defendant had been involved in a fatal motor vehicle accident, had been partially submerged in the freezing waters of the Allegany River, was allegedly intoxicated and had blood drawn only after being seriously injured and taken by ambulance to the hospital. Additionally, Huntley-Wade hearings had been directed and it was appropriate to conduct a Mapp hearing that involved the same incident and the same witnesses. Finally, the People made no factual contentions of their own.

warning was also suppressed. People v Dillin (150 Misc 2d 311) and People v Hochheimer (119 Misc 2d 344), cited by the District Attorney, both involved arrested defendants and held only that the statutorily mandated warnings are not unconstitutionally coercive. Because the law and the consequences were misrepresented to defendant, the People failed to meet their burden of demonstrating the legality of the police conduct in the first instance. Because of that failure, the burden never shifted to defendant to overcome the People's proof.

The court declines the People's invitation to deny defendant's motion to suppress the blood alcohol results for the claimed lack of factual allegations. The motion to suppress those results is granted. The motion to suppress the statements made by defendant is denied. The motion to suppress the identification testimony is also denied.