View NYPD’s Verified Answer here.

View NYPD’s Memorandum in Support of their Answer here.

Their response essentially argues that the breathalyzer records can’t be obtained through the Freedom of Information Law, because they can’t be obtained in a criminal case.  Apparently, no one has a right to see these documents except for the NYPD technicians who make them.

The NYPD argues that turning over these documents would “interfere with the criminal courts’ ability to manage the pre-trial discovery in thousands of cases.”  How the voluntary (or compelled) disclosure would interfere is left to the readers imagination.  The NYPD does, however, support part of that statement- that there are thousands of open DWI cases in NYC.  The NYPD attaches affirmations from every District Attorney’s Office in NYC.

View the affirmation from the Bronx District Attorney’s Office here.

View the affirmation from the Brooklyn District Attorney’s Office here.

View the affirmation from the Manhattan District Attorney’s Office here.

View the affirmation from the Queens District Attorney’s Office here.

View the affirmation from the Staten Island District Attorney’s Office here.

All this begs the question… What are they hiding?

Unfortunately for the NYPD, the Law Offices of Adam Perlmutter doesn’t back down from a fight.  We will continue pressing this litigation until we find whatever they’re fighting so hard to conceal.

View our Reply to the Verified Answer here.

The NYPD has indicated that they will likely begin to turn over these documents before the next Court appearance, scheduled on April 18th.  We look forward to finally being able to examine and share these records.  The production and publication of these records will add a new level of transparency to DWI prosecutions, and, hopefully, motivate the NYPD to higher standards.

Both the Petition and Memo are viewable below.  We have omitted the exhibits filed with our petition, but feel free to contact us for copies of any of the materials.

View the Verified Petition here

View the Memorandum of Law here

We started this process during the summer of 2012 by sending a FOIL letter to the NYPD asking for the information.  The letter went certified mail so we could track that it got received by the police department.  After a few weeks (longer than permitted under the law), the NYPD responded that it would not produce the materials.  We then submitted a letter seeking an administrative appeal of the decision to not provide any information.  Under the law, we are required to “exhaust” our administrative appeals before going to court.  The NYPD responded (again later than permitted under the law) that it would not produce the information because: (1) it touched on ongoing investigations; (2) would show investigative techniques; (3) would be unfair to other defendants because it would give us a competitive advantage; and (4) would disclose intra-agency deliberations.  In short, the NYPD threw every excuse at us other than the actual kitchen sink.

At this point, we have just completed drafting an Article 78 petition to sue the NYPD for the information.  We have prepared an exhaustive application and memorandum of law that we believe will show the NYPD’s actions to be unreasonable.  When successful, which we fully expect to be, we plan to post all of the calibration, repair and maintenance records on our website for public access.

The information that we are seeking should not be secret.  In fact, other states like Florida and Washington, routinely post the material on their official law enforcement agency websites.  While New York pretends to be a bastion of progressivism, it has one of the most regressive breath testing programs in the entire country.  Worse still, we believe that it does not want to have public disclosure about the breath machines used (particularly in New York City) because it will show that the machines regularly go out of operation for no reason and are returned to service with no record of repair or explanation.  If a doctor told you that a loved one had cancer but the machine used for diagnosis goes out of service occasionally for no reason, and is returned to service without repair, you would want a second opinion with a test done on a reliable machine.  We believe that the same routine happens in New York City and that the public has a right to know about it.  The NYPD thinks otherwise.

We will keep you posted on our progress . . .

It is against this backdrop that a recent decision by the United States Court of Appeals for the Second Circuit stands out.  In the case, United States v. Murphy, N.D.N.Y. Case No. 11-cr-2978, the panel upheld the suppression of 21 kilograms of cocaine by Kansas State Police Troopers in Kansas.  The U.S. Attorney’s Office for the Norther District of New York prosecuted the case because the couriers entered New York from Canada.  The trial court suppressed the evidence because the Honorable United States District Judge David N. Hurd found that the reflection of police lights on the suspects’ car did not fit with police testimony about how the car got stopped (“seized”) in the first place.  The Circuit Court upheld Judge Hurd’s finding that the officer’s testimony was “incredible ‘in light of the overwhelming physical evidence demonstrating that Trooper Stahl could not have actually observed Webster fail to signal.’” See United States v. Murphy,  778 F. Supp. 2d 237, 245 (N.D.N.Y. 2011).  It also found that Judge Hurd did not clearly err in finding that the “conducted an unjustified traffic stop of the Honda by activating the patrol car’s ‘front and/or top emergency lights.’”  Instead, the Court found that it could not disagree with the District Court “ (1) [another officer's] testimony, which the District Court credited, that [trooper's] flashing lights forced [the other officer] to stop the Honda, (2) the videotape confirming the reflection of white flashing lights on the Honda’s rear bumper shortly after it pulled over, (3) [the trooper's] testimony that his patrol car’s front emergency lights caused the reflection, and (4) [the trooper's] near-contemporaneous descriptions of the encounter as a ‘traffic stop’ in his audio narrative and related paperwork.”  ”‘[W]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).

This case reached the right result because Judge Hurd took the time to carefully analyze its contents and compare them to the testimony.  His diligence is exemplary of the level of work conducted by judges throughout the New York federal and state court bench.  Applying proper standard of review to the law and the facts, Circuit Court Judges Calabresi, Lynch, and Lohier came to the right result.  But the real question is where do we go from here?  The case highlights that video technology advances the interests of justice.  Whether it is “watching the watchers” and suppressing because the police crossed the line, or obtaining a conviction because the police acted properly.  Lawmakers in New York need to understand that the pursuit of justice is advanced, and public confidence in the system is enhanced, by thoroughly utilizing video technology to record and document the criminal justice process.  It may be for better or worse in the short term.  People may feel that it unfair for Michael Murphy to skate bye despite the 21 kilograms of cocaine in his car.  But once the watchers know they are being watched by an engaged and concerned public, the quality and truthfulness of police work will improve and confidence police activity along with it.

The decision also has some interesting about the confusing “Kansas Two-Step” Miranda procedure that the Circuit Court also found crossed the line.

Here is a copy of the full text of the decision:

United States of America, Appellant v. Michael Murphy, a/k/a Sealed Defendant, #1, Michael Webster, a/k/a Sealed Defendant, #2, Defendants-Appellees, 11-2978-cr

Before: Calabresi, Lynch, and Lohier, CJ.

Decided: December 4, 2012

For Appellant: Brenda K. Sannes, Daniel C. Gardner, Assistant United States Attorneys, on the brief, William C. Pericak, Assistant United States Attorney, for Richard S. Hartunian, United States Attorney Northern District of New York, Albany, N.Y.

For Defendant-Appellee: Michael Murphy, Kevin A. Luibrand, Esq., Albany, N.Y.

For Defendant-Appellee Michael Webster: Molly Corbett, James Egan, Assistant Federal Public Defenders, on the brief, Timothy E. Austin, Assistant Federal Public Defender, for Lisa A. Peebles, Acting Federal Public Defender, Albany, N.Y.  The Government appeals from an order of the United States District Court for the Northern District of New York (Hurd, J.), suppressing cocaine and other physical evidence uncovered during a search of the defendants’ car, as well as post-arrest statements made by the defendants. The District Court found that the defendants’ car was illegally stopped, that the consent to search the car was tainted by the illegal stop, and that the defendants did not waive their Miranda rights when they made the post-arrest statements. We AFFIRM.

RAYMOND J. LOHIER, CJJ.

In 2010 a Kansas Highway Patrol (“KHP”) trooper stopped a car along a highway in Kansas and discovered cocaine and other evidence after one of the defendants in the car, Michael Webster, consented to a search. Both defendants were arrested, eventually made inculpatory post-arrest statements, and were indicted. After a hearing, the United States District Court for the Northern District of New York (Hurd, J.) issued an order suppressing both the physical evidence seized during the car search and the defendants’ post-arrest statements on the grounds that the trooper had illegally stopped the car, the subsequent consent to search the car was tainted by the illegal stop, the defendants were not properly informed of their rights under Miranda v. Arizona, 384 U.S. 436 (1966), and neither defendant waived those rights.

Relying principally on a videotape recording of the encounter, the Government appeals from the District Court’s order, arguing that the defendants’ car was never “seized” within the meaning of the Fourth Amendment and, alternatively, that the subsequent consent to search was untainted by the initial seizure. It also maintains that the Miranda warnings given to the defendants were valid. For the reasons that follow, we affirm.

BACKGROUND

A. Factual Background

The following facts are taken from the District Court’s findings of fact and the record developed during the suppression hearing, including the videotape and audiotape recordings that were introduced as evidence.

1. The MVR Equipment

In June 2010, KHP Trooper David Stahl stopped a car driven by Webster, with defendant Michael Murphy as a passenger. Much but not all of the episode was recorded by a mobile video/audio recording (“MVR”) unit installed between the front windshield and dashboard of Trooper Stahl’s patrol car.¹ MVR units continuously capture and record footage to a DVD whenever a recording is started. There are various ways to start a recording: (1) activation of the patrol car’s emergency lights or emergency siren, (2) activation of the trooper’s wireless microphone, or (3) a collision involving the patrol car. MVR units are configured also to provide automatic “pre-event recording,” so that “whenever an auto-record even[t]…happens, the footage actually recorded to the DVD will include what happened for approximately thirty seconds before the event that triggered the automatic recording.”² Although a trooper can stop the MVR recording by turning off the patrol car’s emergency lights, sirens, and wireless microphone, the parties agree that a trooper can also manually stop the MVR’s recording function while leaving the patrol car’s emergency lights on.

2. The Seizure and Search of the Car

On the day of the stop, Trooper Stahl put ruse drug checkpoint signs on the eastbound side of Interstate 70 (“I-70″) in Kansas, so that they were visible to cars approaching exit 322 (“the Exit”). He then parked his patrol car in a turnaround lane connecting I-70′s eastbound and westbound lanes. From this position, Stahl could see the eastbound traffic approaching the Exit through his rearview mirror.

During the suppression hearing, Trooper Stahl provided contradictory testimony about what he did after pulling into the turnaround lane. He first testified that he “turned [his] back lights on so that traffic coming along, when they see the signs, they see my lights up ahead” (emphasis added). He later testified that he turned on his front emergency lights as he pulled into the turnaround. In any event, the DVD from the MVR unit in Stahl’s patrol car contains a 19-second “pre-event” segment that was automatically recorded because Stahl activated his emergency lights after pulling into the turnaround. Stahl explained that he manually turned off the MVR unit after activating his emergency lights to avoid wasting film while he waited in the turnaround.

Shortly after parking in the turnaround, Trooper Stahl saw the defendants’ car slow as it approached the ruse signs traveling eastbound, exit I-70 by the eastbound exit ramp, and then turn and begin driving up the opposite, westbound entrance ramp to the highway. Stahl followed the defendants’ car onto the westbound ramp, at which point the car stopped on the side of the ramp.

Precisely why the defendants’ car stopped when it did remains the subject of heated dispute. Webster testified that he stopped the car because he “noticed the lights on the [patrol car's] front grill[e] were flashing, and [he] believe[d] the lights on the top of the vehicle were flashing.” In contrast, Trooper Stahl testified that Webster stopped voluntarily and that the patrol car’s rear emergency lights (which would not have been visible to Webster), rather than its front emergency lights, were activated.

During the roughly fifteen minutes after the car stopped, Trooper Stahl asked the defendants for proof of identification and other documents and asked the KHP to conduct record checks of the defendants, which revealed that over 52 pounds of marijuana were seized nine months earlier from a car in which Murphy was a passenger. In addition, according to Stahl, Webster appeared “tense and nervous” throughout the stop. Stahl also smelled fresh paint — a possible sign, he testified, that the car had recently been modified to conceal drugs. Moreover, Murphy provided contradictory information regarding the defendants’ travel route, variously suggesting that they had traveled from Los Angeles and from Las Vegas.

The videotape recording of the stop, which we have reviewed, begins with the defendants’ car, a Honda, already stopped on the entrance ramp, and Trooper Stahl’s patrol car parked behind it. Reflections of white flashing lights are visible in the rear bumper of the Honda. Stahl is seated in the patrol car, apparently awaiting the KHP record checks, while the defendants remain in the Honda. While waiting, Stahl recorded an audio narrative of the events leading to that point, during which he clearly states that he “[s]topped this vehicle at I-70.” Stahl testified that he initiated this recording by activating the MVR with his belt microphone when he returned to his patrol car after obtaining the defendants’ identification and other papers.³

After the record checks were completed, Trooper Stahl walked to the passenger side of the Honda, returned the defendants’ papers, placed his hands on the car door, and told Webster that he was “just going to give [him] a warning on the [failure to] signal.” Webster asked Stahl about getting gasoline, and Stahl answered that a gasoline station was 13 miles away. Stahl then took one step away from the Honda and began to turn toward his patrol car; but, after not more than two seconds, he leaned back into the Honda and asked the defendants if they would mind answering “a few other questions,” explaining that there had been “a lot of problems with illegal narcotics” in the area. The defendants denied having drugs, but Webster consented to a search of the Honda.

We note that on the videotape, Trooper Stahl remained standing by the passenger-side car door from the time he approached the Honda to return the defendants’ paperwork until he obtained Webster’s consent for the search. Throughout, he kept his hands on the passenger-side door except for the second or so when he turned toward the patrol car. At the hearing, Stahl called his maneuver “the Kansas Two-Step,” which, consistent with the videotape depiction of what occurred, he described as follows: “You break contact, give them their information back, tell them they are free to leave” and then immediately “come back” to continue questioning them. He explained that troopers are trained to break contact with the car momentarily “[b]ecause by law [drivers] have to feel free to leave to give consent to search.”

After obtaining Webster’s consent, Trooper Stahl asked the defendants to get out of the Honda. Stahl and another officer, who had by then joined him, quickly found a false compartment in the trunk. The defendants were arrested and forced to sit on the side of the entrance ramp near the front of the Honda; they waited there, handcuffed, while the officers continued their search of the compartment, which eventually yielded twenty-one kilograms of cocaine, multiple cellular phones, and other evidence.

3. The Miranda Warnings

Approximately forty-five minutes after placing the defendants under arrest, Trooper Stahl gave them the following warnings:

Okay, just so you guys understand, you have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford an attorney one will be presented for you by the court. You can decide at anytime to give up these rights, and not talk to us, okay. You understand that?

Murphy responded “I understand” and, when asked if he was willing to talk, said that Stahl could “go ahead and ask me a question, if I can answer it I will.” Webster, by contrast, never indicated that he understood or even heard Stahl’s warnings. Nonetheless, both defendants responded to Stahl’s subsequent questions by denying knowledge of the compartment or the cocaine. Both defendants later made additional statements to a different officer after they were transported to a police station.⁴

B. Procedural History

The defendants were charged with conspiring to distribute over five kilograms of cocaine, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(A). Before trial, they moved to suppress the cocaine as well as the statements they made to the police. They argued that (1) their car was unlawfully stopped without cause, (2) their consent to the car search was involuntary because it was tainted by the prior unlawful stop, and (3) Trooper Stahl’s Miranda warnings were improper and invalid.

After a two-day suppression hearing, the District Court granted the motions to suppress. First, it found that “the Honda…was seized when Trooper Stahl activated his front and/or top emergency lights and Webster pulled over in response to those lights.” United States v. Murphy, 778 F. Supp. 2d 237, 260 (N.D.N.Y. 2011).⁵ Second, it refused to credit Stahl’s testimony that he had observed the Honda commit a traffic violation, and it ultimately concluded that the Government had “offered no…objectively reasonable basis to justify the stop.” Id. at 255. Third, it found that the defendants’ subsequent consent to search remained tainted by the initial unlawful seizure. Id. at 256-57. As for the post-arrest statements, the District Court concluded that neither defendant had knowingly waived his Miranda rights. Id. at 258-59.

The Government appealed.

DISCUSSION

In evaluating the grant of a motion to suppress evidence, “we review the district court’s factual findings for clear error and its conclusions of law de novo.” United States v. Awadallah, 349 F.3d 42, 71 (2d Cir. 2003) (quotation marks omitted). “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. When, as here, credibility determinations are at issue, we give particularly strong deference to a district court finding.” United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (citations, quotation marks, and alteration omitted). Where a defendant’s motion to suppress is granted, we review the evidence in the light most favorable to the defendant. See Awadallah, 349 F.3d at 71; see also United States v. Moore, 670 F.3d 222, 226 (2d Cir. 2012) (the record should be viewed in the light most favorable to the government only “[w]hen reviewing a district court’s decision in the government’s favor on a motion to suppress” (emphasis added)).

With these general principles of review in mind, we conclude that (1) the District Court’s finding that Trooper Stahl stopped and thereby seized the Honda was not clearly erroneous, (2) the taint of the unlawful seizure had not dissipated at the time Webster consented to the search of the car, and (3) the District Court did not err in concluding that neither defendant waived his Miranda rights.

A. The Unlawful Seizure of the Honda

The Government submits that the District Court erred in finding that Trooper Stahl stopped (and therefore “seized”) the Honda when he activated his front and/or top emergency lights. Both sides rely on evidence in the form of the MVR videotape recordings, as well as testimony or affidavits from Webster, Stahl, and others.

During the suppression hearing, Trooper Stahl testified, and the Government argued, that he pulled out of the turnaround to intercept the defendants’ car because he observed it exit without signaling, in violation of a Kansas law that requires drivers to signal within a hundred feet of a lane change or turn. Webster testified, however, that he signaled as he approached the exit. The District Court resolved this factual dispute in favor of the defendants, finding Stahl’s testimony incredible “in light of the overwhelming physical evidence demonstrating that Trooper Stahl could not have actually observed Webster fail to signal.” Murphy, 778 F. Supp. 2d at 245. The Government has not pursued this argument on appeal, and we are left to accept that Stahl had no legal basis to conduct a traffic stop.

Instead, on appeal, the Government contends that Trooper Stahl did not actually conduct a traffic stop and that the defendants’ car stopped voluntarily, without prompting from the patrol car. Although the MVR did not capture the moment the Honda actually stopped, based on our review of the record evidence we cannot say that the District Court clearly erred in finding that Stahl conducted an unjustified traffic stop of the Honda by activating the patrol car’s “front and/or top emergency lights.” Indeed, we would be hard pressed to do so given (1) Webster’s testimony, which the District Court credited, that Stahl’s flashing lights forced him to stop the Honda, (2) the videotape confirming the reflection of white flashing lights on the Honda’s rear bumper shortly after it pulled over, (3) Stahl’s testimony that his patrol car’s front emergency lights caused the reflection, and (4) Stahl’s near-contemporaneous descriptions of the encounter as a “traffic stop” in his audio narrative and related paperwork. “‘[W]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).

The District Court made its factual findings after hearing from all the witnesses and making credibility determinations. The Government argues that we can nevertheless find clear error because it is physically impossible, given the video recording, for events to have transpired as the District Court found. More specifically, the Government contends that it is impossible for the patrol car’s front emergency lights to have been activated without also activating the MVR’s auto-record feature and generating pre-event footage of the Honda in motion, or causing visible red and blue reflections from the patrol car’s top emergency lights to be visible in either the patrol car’s windshield wipers or hood. It argues that the absence of any footage of the Honda in motion or red and blue reflections on the windshield wiper or hood demonstrates that the front emergency lights were off. These arguments fail for two reasons. First, Trooper Stahl testified that KHP troopers have the ability to turn off the MVR while leaving the patrol car’s emergency lights on, and that just before stopping the Honda he had “to turn it off to sit with my lights going without wasting film.” If the patrol car’s front emergency lights were already on when he pulled out of the turnaround, the MVR’s pre-event recording feature would not have been activated prior to the stop.⁶ See Gov’t App’x at 115-16. Second, the videotapes of the incident involving the Honda, as well as other videotapes designed to show the reflective effect of activated patrol car emergency lights in various conditions and on various surfaces, are either inconclusive or squarely contradict the Government’s argument, since several show no red or blue reflections even when a patrol car’s emergency lights are activated. Given these ambiguities in the record, we reject the Government’s contention that the videotape is conclusive.

Accordingly, we discern no clear error in the District Court’s factual findings regarding Trooper Stahl’s seizure of the defendants’ car, and we proceed on the understanding that the Honda was unlawfully seized.

B. The Taint of the Unlawful Seizure

The Government next argues that, even if the Honda was unlawfully stopped, the physical evidence that the troopers found is admissible because Webster’s consent to search constituted an intervening independent act of free will unconnected to the stop. We disagree.

When consent to search is preceded by an unlawful government seizure, the evidence obtained from the search must ordinarily be suppressed unless the Government shows both that the consent was voluntary and that “‘the taint of the initial [seizure] has been dissipated.’” United States v. Snype, 441 F.3d 119, 132 (2d Cir. 2006) (quoting United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990)). “[T]he question of whether a person’s statement has been purged of the taint of prior official illegality does not hinge on a simple but for analysis, but rather must be answered on the facts of each case.” Id. at 134 (quotation marks omitted). We consider four factors relevant to the analysis: (1) whether Miranda warnings were given, (2) the “‘temporal proximity’” of the prior illegal act to the consent, (3) “‘the presence of intervening circumstances,’” and (4) “‘the purpose and flagrancy of the official misconduct.’” Id. (quoting Kaupp v. Texas, 538 U.S. 626, 633 (2003)).

The “first factor is most relevant where the person giving consent is in custody.” Id. Because Webster consented to the search while the defendants remained seated in the car and were not yet in custody, at this juncture we can elide the absence of Miranda warnings and focus instead on the remaining factors.

The second factor, temporal proximity, favors the defendants. About fifteen minutes elapsed between the seizure of the Honda and Webster’s consent, but the bulk of that time involved the unlawful traffic stop itself. Less than one minute passed between what might fairly be characterized as the end of the unlawful seizure — Trooper Stahl’s return of the defendants’ documents — and Stahl’s request for consent to search the car. And only a few seconds elapsed during Stahl’s execution of the “Kansas Two Step,” which was the only time he moved away from or broke contact with the car. We recognize that even a brief lapse of time can sometimes suffice to “sever the causal connection between an illegal [seizure] and a subsequent consent to search, thereby permitting a court to conclude that the consent fairly reflects an act of free will.” Id. Here, however, the lapse of less than one minute between the end of the stop and the consent to search occasioned by the “Kansas Two-Step” favors the defendants. See Kaupp, 538 U.S. at 633 (suppressing confession where there was “no indication from the record that any substantial time passed” between unlawful arrest and confession); Oguns, 921 F.2d at 447 (“[T]he short lapse of time between the illegal entry and consent, amounting only to a few minutes, did little to dissipate the taint of the illegal entry.”); United States v. Ceballos, 812 F.2d 42, 50 (2d Cir. 1987) (“[T]he consents to search…given within a few minutes of the illegal arrest…were too closely connected in context and time to the illegal arrest to break the chain of illegality.”).

The third factor, the presence or absence of intervening events, also favors the defendants. Trooper Stahl never informed the defendants that the stop was over, that they were free to go, or that they did not have to consent to a search. Throughout the encounter, Stahl remained by the car door, removing his hands from it for only a moment after he returned the defendants’ paperwork, told Webster he was receiving only a warning, and spoke to the defendants about the nearest gasoline station. We doubt that a reasonable person would have felt free to go at that moment, and we do not view Stahl’s act of briefly turning away from the car as an “intervening event” that removed the taint of the initial seizure. See Taylor v. Alabama, 457 U.S. 687, 690 (1982).

In urging otherwise, the Government asks us to consider Trooper Stahl’s calm and respectful manner during the encounter. It is true that, in Snype, for example, we noted that the party consenting to the search had been treated “with respect” while the officers sought consent, and that the “fearful atmosphere” had been replaced by then with one of “relative calm.” 441 F.3d at 135. In that case, however, consent came from a third party who “knew that she was not required to consent to any search” and whose consent was preceded by the defendant’s arrest and removal from the premises, the departure of a SWAT team from the premises, and the unequivocal restoration of the third party’s liberty. Id. Here, by contrast, the defendants’ liberty was not clearly restored, and Stahl’s respectful and calm demeanor, which remained constant throughout the encounter, was hardly an intervening change in circumstance sufficient to dissipate the taint of the unlawful seizure.

Last, we consider the flagrancy of the police misconduct. Some of our sister circuits have held that purposeful and flagrant police misconduct exists where “‘(1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed “in the hope that something might turn up.”‘” United States v. Fox, 600 F.3d 1253, 1261 (10th Cir. 2010) (quoting United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006)). The District Court found that Trooper Stahl had not “intentionally committed any misconduct.” Murphy, 778 F. Supp. 2d at 257. It noted, however, that “there is certainly evidence that his motivation for pulling the Honda…over was merely its exit from I-70 in the presence of drug checkpoint signs,” and that “[a]t worst, [Stahl] appears to have tailored his testimony in an attempt to justify the stop and search.”⁷ Id. We have no reason to disagree with the District Court’s ultimate assessment that Stahl’s stop of the car, however troubling, did not rise to the level of intentional misconduct. That said, the finding obviously represented a close call for the District Court, and we therefore view this fourth factor as one that does not strongly favor the Government.

In sum, weighing the four factors together, we conclude that the District Court correctly ordered the suppression of the evidence discovered during the search of the Honda after determining that the taint of the unlawful seizure persisted when Webster consented to the search.

C. Miranda Rights

We next turn to the District Court’s suppression of the defendants’ post-arrest statements. “The purpose of the Miranda warning is to ensure that the person in custody⁸ has sufficient knowledge of his or her constitutional rights relating to the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary.” United States v. Carter, 489 F.3d 528, 534 (2d Cir. 2007). The Government bears the burden of proving by a preponderance of evidence that a valid waiver occurred. Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010); United States v. Male Juvenile, 121 F.3d 34, 39 (2d Cir. 1997). The waiver inquiry has two components: the accused’s relinquishment of his rights must have been (1) “‘knowing,’ which is to say that ‘the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,’” and (2) “‘voluntary,’ which is to say ‘that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’” United States v. Plugh, 648 F.3d 118, 127 (2d Cir. 2011) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)); see United States v. Hall, 724 F.2d 1055, 1059 n.6 (2d Cir. 1983) (Friendly, J.) (noting that both knowledge and voluntariness are necessary for waiver, and that “a waiver of rights could not be found unless the suspect knew what they were”). Because we conclude that the defendants’ waivers were not knowing, we focus only on that component.

1. Michael Murphy

Construing Trooper Stahl’s Miranda warnings as an “incomprehensible instruction on waiver,” the District Court suppressed Murphy’s post-arrest statements because the Government failed to show that Murphy fully understood the rights he was waiving or the consequences of the waiver. Murphy, 778 F. Supp. 2d at 259. On appeal, the Government concedes that it was technically incorrect for Stahl to instruct the defendants that they could “decide at anytime to give up these rights, and not talk to us” (emphasis added), but it nevertheless argues that Murphy’s responses show that he understood his right to remain silent and to counsel. We cannot agree.

Trooper Stahl’s incorrect formulation strongly suggested that the defendants should talk if they wished to exercise their rights — or, put another way, that they would waive their rights if they remained silent. By contrast, when correctly given, Miranda warnings clarify that a defendant may choose at any time to waive his rights or maintain those rights, including the right to remain silent. As given, Stahl’s warning confused waiver with the exercise of the defendants’ rights. It thereby failed to “ensure that the person in custody ha[d] sufficient knowledge of his…constitutional rights relating to the interrogation.” Carter, 489 F.3d at 534.

As the Government points out, Murphy answered affirmatively when asked if he understood the administered warnings. But this proves nothing more than that Murphy understood Trooper Stahl’s words. It does not show that he understood his actual rights under Miranda. Even assuming, therefore, that Murphy voluntarily decided to answer Stahl’s questions, we agree with the District Court that the waiver was not knowing. See Murphy, 778 F. Supp. 2d at 259.

In reaching this conclusion, we do not suggest that any slight variance from the standard Miranda warnings will necessarily invalidate a defendant’s waiver of his or her Miranda rights. See Duckworth v. Eagan, 492 U.S. 195, 202-03 (1989) (recognizing that “no talismanic incantation is required to satisfy [the] strictures” of Miranda (quotation marks and alterations omitted)). The relevant “inquiry is simply whether the warnings reasonably ‘convey to a suspect his rights as required by Miranda.’” Florida v. Powell, 130 S. Ct. 1195, 1204 (2010) (alterations omitted) (quoting Duckworth, 492 U.S. at 203). But the substance of the warnings here was confusing enough to cast serious doubt on whether Murphy understood his rights.

2. Michael Webster

We likewise conclude that Webster did not knowingly waive his rights under Miranda. Indeed, Webster’s case for suppression is stronger, since he appears never to have acknowledged the incorrect Miranda warnings, and there is no record evidence that he heard Trooper Stahl give the warnings. To the contrary, Webster testified that he “wasn’t listening” to Stahl at that point,⁹ and, as the District Court found, Stahl did not know whether Webster acknowledged hearing the Miranda warnings.¹⁰

Nevertheless, the Government contends that Webster’s failure to acknowledge the Miranda warnings is immaterial because he implicitly waived his rights when he responded to Trooper Stahl’s later questioning. In essence, the Government asks us to infer Webster’s waiver based solely on the fact that Stahl read the warnings in a clear voice while standing near him. A broad rule supporting a finding of waiver whenever Miranda rights are given within a defendant’s earshot is without precedent in this Court. Although a defendant’s waiver “may be implied through ‘the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver,’” Berghuis, 130 S. Ct. at 2261 (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)), the Government must do more than show simply that a Miranda warning was given and the accused thereafter made a statement. We may imply waiver only when the prosecution has made “the additional showing that the accused understood these rights.” Id. (emphasis added). On this record, the District Court properly concluded that the Government failed to show that Webster waived his Miranda rights.

CONCLUSION

For the foregoing reasons, we AFFIRM the District Court’s order.

1. Although the MVR captured most of the relevant events, no recording is available for one critical period of time — the vehicle actually halting — and the circumstances of that event are disputed.

2. For example, if the patrol car’s front emergency lights were turned on to pull over a car, the recording preserved on the DVD should show the car in question traveling in front of the patrol car for approximately thirty seconds before the emergency lights were activated.

3. Trooper Stahl also explained that, because of safety concerns, he did not have time to activate the camera before initially approaching the Honda.

4. During the suppression hearing, KHP Trooper David Grittman testified that he administered Miranda warnings to the defendants before questioning them at the station. Webster disputed that Grittman had done so. The District Court resolved the dispute in defendants’ favor, finding Grittman’s testimony incredible at least partly because his contemporaneous police reports failed to mention Miranda warnings. Because the Government has not appealed this finding, we review only the validity of Trooper Stahl’s initial Miranda warnings and the defendants’ purported waiver of their rights at that time.

5. The Government later moved for reconsideration, contending that the District Court’s findings regarding the seizure were contradicted by the MVR videotape recording, and seeking leave to reopen the suppression hearing to introduce evidence of Murphy’s prior familiarity with Miranda warnings and to permit Trooper Stahl to correct his earlier testimony that the flashing lights visible in the Honda’s rear bumper were from the patrol car’s front emergency lights. The District Court denied the motion. Although the Government appealed the order, its only arguments regarding that order appear in two footnotes to its brief. We consider its perfunctory arguments to be abandoned. See Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012).

6. There was some evidence that troopers are unable to prevent MVR units from recording while the emergency lights are on. Trooper Stahl testified to the contrary, however, and at oral argument on appeal the Government acknowledged that troopers may be able to deactivate the MVR while leaving the emergency lights on. Tr. of Oral Arg. at 34-35.

7. Stahl acknowledged that a vehicle’s exit from the highway near ruse drug checkpoint signs, standing alone, does not create reasonable suspicion for a stop. Also, Stahl’s various observations — that Webster appeared nervous, that Murphy provided inconsistent answers about their travel route, and that the car smelled of fresh paint — might have aroused reasonable suspicions of drug activity by the time he asked for consent to search the car, but those observations were made after the stop and therefore cannot justify the initial seizure.

8. The defendants, handcuffed by the side of the car, clearly were in custody at the time Trooper Stahl gave them the Miranda warnings. 9. Webster acknowledged that, at the police station, he told Trooper Grittman that he had already been read his rights, but he explained that he said this because he “heard Mr. Murphy sa[y] he understood his rights.”

10. Webster also argues that the Miranda warnings were deficient because Trooper Stahl did not adequately explain that counsel could be made available during the interrogation. We need not address this argument because we conclude that Webster did not knowingly waive his Miranda rights.

Under VTL §1994, a driver has the right to a chemical test refusal hearing within 15 days of his license being temporarily suspended pending prosecution.  If DMV is unable to conduct the hearing within that time, the driver’s license is automatically restored.  So, for new arrests directed to the closed 19 Rector Street location, drivers will have their licenses automatically restored after 15 days of arraignment (at least for the time being).

We have learned from DMV that it is now working to set up files on the new 19 Rector Street cases and to divert the hearings to the Brooklyn North DMV office at the Atlantic Yards Mall.  We have already received notice to appear at that location for an older rescheduled refusal hearing.  DMV expects that walk-in refusal appearances for new cases will start up at the Atlantic Yards office starting December 13th.  So, for all new cases, the arraignment court clerks should be directing drivers to that location for new matters.  We will wait and see whether this actually occurs or if clerks still send people to the closed 19 Rector Street location.

Actual rescheduled refusal hearings are expected to start up in early January at the Atlantic Yards office.  DMV says it will be limited to Brooklyn officers initially because there are notification issues that still need to be worked out.  Long term, the 19 Rector Street office is expected to shift to a new location on Beaver Street but those plans are still in the work.  Bottom line: Lawyers and clients need to pay close attention to temporary suspensions for refusal to submit to a chemical test to make sure that the notifications are directing drivers to the DMV Brooklyn North offices at the Atlantic Yards Mall.  If all else fails, the DMV Safety Hearing Office can be contact at (518) 474-1509.

Here is a recent decision from the Brooklyn that proves the point.  The case involves a simply suppression hearing.  There were days as a young assistant district attorney when I would do several in a row — one hearing after the other.  They usually involve only one officer.  You can use hearsay, i.e., the officer saying, “I got a radio transmission that said XYZ,” “my partner told me ABC”, etc.  For some unknown reason, in the Brooklyn case, the prosecutor called both partners to testify about what was otherwise a simple encounter between a defendant and the police.  The problem is that each cop told a slightly different story and the Court found that they could not both be telling the truth.  That, combined not having the police radio call altering the officers to the scene (which is unfortunately pretty routine to be missing), and the damage was one.  The prosecutor could have gotten away with the missing type, but by calling both officers he or she “over tried” the hearing and lost the case.  Lesson learned.

Here is the decision in its entirety:

People v. Edward Felder, Case No. 2011KN050698 (NY City Ct., Brooklyn, October 15, 2012)

There has been a lot of research and decisions about the double-blind/sequential technique.  In a nutshell, the system tries to remove the problems with the traditional lineups.  Psychological studies show that witnesses are more likely to make mistaken identifications with traditional lineup because they average out the subjects and identify the individual who looks most like the assailant — whether or not the perpetrator is actually in the line up.  With double-blind/sequential lineups, there are two safeguards.  First, the officer conducting the procedure does not know who the suspect is.  That way, there is no chance of the officer suggesting either overtly or subconsciously who should be picked.  Second, the individuals in the lineup are show to the viewer one at a time.  This process avoids the eyewitnesses averaging the group and picking the individual who looks most like the assailant.

The Chief Judge Lippman’s Justice Task Force recently recommended to the New York legislature that the double-blind/sequential lineups be the law of the land in New York.  For some reason, it seems that the Bronx District Attorney’s Office has not gotten the memo.  There are also some judges who have not as well because they consider it to be an impermissible intrusion on the functions of the executive (district attorney) and legislative branches of government.  Judge Webber knows better.  She understands that the law is a dynamic process with appellate courts and other branches of government as a check on her actions.  But she also knows that the pursuit of equal and fair justice is the bedrock on which the system must function.  With the mountain of studies showing that double-blind/sequential lineups should be standard operating procedure in all cases, that they avoid the innocent being mistakenly identified, it is good to see that Judge Webber has pushed forward to require this technique where she has the ability to do so.

The full text of her decision appears below.

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The People of the State of New York, Plaintiff v. Ashley Reynoso, Defendant, 3379/11
Supreme Court, Bronx County, Part H92

Justice Troy Webber

Decided: September 24, 2012

For the People: Marc I. Eida, Assistant District Attorney, Office of the District Attorney Bronx County.

For the Defendant, Ashley Reynoso: Alice Meehan, Esq., The Bronx Defenders, Bronx, NY.

DECISION AND ORDER

But in a courageous appellate decision, New York’s Third Department found that speeding and intoxication do not make out reckless driving  per se.  In People v. Goldblatt, the defendant was convicted of several crimes including aggravated vehicular homicide and reckless driving.  According to the evidence developed at trial, Goldblatt was doing 55 mph in a 40.  He went off the road a little and tragically struck and killed two people.   The Court reversed Goldblatt’s conviction for aggrevated vehicular homicide because it found that trial court committed error by instructing the jury that it had to find, as a matter of law, that Goldblatt had been driving recklessly.  Rather, the Court found that the jury should have been told that intoxication, without other evidence, does not establish reckless driving.  As the Court stated, “it is the manner of operation that is the important inquiry. ‘One can drive recklessly without being intoxicated and, [conversely], one can drive while intoxicated without being reckless’”.  Citation omitted.

This decision is important because it properly frames the issue surrounding reckless driving and takes a trial court to task for overreaching on the issue.  Goldblatt will now get a new trial.  We do not know how that will turn out given the facts of the case. But we think that the Goldblatt decision is important though because it highlights that intoxication and speeding alone do not constitute reckless driving as a matter of law.  With two tragic deaths in the balance, the Third Department should be credited for upholding the law on this important issue and requiring a new trial

Here is a full copy of the decision:

People v. Peter Goldblatt  (App. Div., 3rd, Decided August 30, 2012)

Before: Lahtinen, J.P., Spain, Malone Jr., Kavanagh and McCarthy, JJ.

Decided: August 30, 2012

Memorandum & Order

Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered February 4, 2011, upon a verdict convicting defendant of the crimes of aggravated vehicular homicide, vehicular manslaughter in the first degree, manslaughter in the second degree (two counts), assault in the third degree, reckless endangerment in the second degree, driving while intoxicated (two counts) and reckless driving.

E. Michael Kavanagh, J.

At about 11:20 P.M. on June 24, 2010, defendant was driving a sport utility vehicle south on Golf Course Road in the Town of Warrensburg, Warren County. Seven individuals who worked at nearby Camp Echo Lake were standing off the west side of the road at a trailhead. Defendant’s vehicle, traveling at an estimated speed of 55 miles per hour in a 40 mile-per-hour zone, went partially off the road striking and killing two young adults. When State Police arrived, they observed defendant to be visibly intoxicated. He initially refused to take a breath test, but submitted to a test about two hours later, recording a blood alcohol content of.11 percent, which was extrapolated to have been approximately.158 percent (nearly twice the legal limit) at the time of the accident. Defendant was indicted for aggravated vehicular homicide, vehicular manslaughter in the first degree, manslaughter in the second degree (two counts), reckless driving, driving while intoxicated (two counts), assault in the third degree, and reckless endangerment in the second degree. A jury convicted him of all counts and County Court sentenced him to concurrent prison terms, the longest of which was 8a to 25 years for the aggravated vehicular homicide conviction. Defendant appeals, arguing that his conviction of the top count of the indictment — aggravated vehicular homicide — was not supported by legally sufficient evidence and was against the weight of the evidence, and that County Court erred in its jury instructions regarding that count.

The crime of aggravated vehicular homicide was added to the Penal Law in 2007 (see L 2007 ch 345, §2) as part of legislation creating stricter laws with strong penalties for those who cause personal injury or death to others when driving while intoxicated (see Senate Introducer Mem in Support, 2007 McKinney’s Session Laws of NY, at 1857-1858). The elements of aggravated vehicular homicide are statutorily defined as being comprised of two existing crimes, reckless driving (see Vehicle and Traffic Law §1212) and vehicular manslaughter in the second degree (see Penal Law §125.12), as well as any one of seven exacerbating factors, which, as relevant here, include “caus[ing] the death of more than one other person” (Penal Law §125.14 [4]).¹ It is undisputed that the evidence sufficiently established vehicular manslaughter in the second degree and the exacerbating factor of more than one death. Defendant argues, however, that the evidence did not demonstrate that he engaged in reckless driving.

Reckless driving consists of “driving or using any motor vehicle…in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway” (Vehicle and Traffic Law §1212). It is a misdemeanor with a maximum punishment for a first offense of a $300 fine and 30 days in jail (see Vehicle and Traffic Law §§1212, 1801).² It has long been recognized that reckless driving “calls for evidence showing something more than mere negligence” (People v. Grogan, 260 NY 138, 143 [1932]; see Matter of Sheridan v. Fletcher, 270 App Div 29, 32 [1945]). Determining whether conduct rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road (see People v. Grogan, 260 NY at 143-144; People v. Lamphear, 35 AD2d 305, 308 [1970]; see generally Carrieri, Practice Commentaries, McKinney’s Cons Laws of NY, Book 62A, Vehicle and Traffic Law §1212, at 47-48; Campbell, Fisher and Mansfield, Defense of Speeding, Reckless Driving and Vehicular Homicide §13.02; cf. People v. Frisbie, 114 AD2d 587, 588-589 [1985]). Thus, although violating the speed limit may not be enough by itself, speed plus crossing into the passing lane when the view of oncoming traffic is not clear is sufficient (see People v. Armlin, 6 NY2d 231, 232-233 [1959]; People v. Lamphear, 35 AD2d at 308-309). Similarly, merely making a U-turn would not constitute reckless driving, but doing so across three lanes of traffic on a parkway could be considered reckless (see People v. McGrantham, 12 NY3d 892, 893-894 [2009]).

We have previously indicated that the voluntary use of alcohol or drugs before driving may be considered as a factor in the reckless driving analysis (see People v. Bohacek, 95 AD3d 1592, 1594-1595 [2012]; People v. Ladd, 224 AD2d 881, 882 [1996], affd 89 NY2d 893 [1996]). Nonetheless, it is the manner of operation that is the important inquiry. “One can drive recklessly without being intoxicated and, [conversely], one can drive while intoxicated without being reckless” (People v. Starowicz, 207 AD2d 994, 994 [1994], lv denied 84 NY2d 1016 [1994] [citations omitted]). In addition, where, as here, reckless driving is an element that elevates a crime, the focus for the reckless driving element is the manner of operation. Thus, we consider the legal sufficiency and weight of the evidence regarding the reckless driving element of the crime of aggravated vehicular homicide by such standard.

Here, when the proof is viewed in the light most favorable to the People (see People v. Delamota, 18 NY3d 107, 113 [2011]; People v. Diaz, 15 NY3d 764, 765 [2010]), there was a confluence of factors such that reckless driving was established by legally sufficient proof. There was proof that defendant disregarded a sign warning of an approaching reduced speed zone and he entered the subsequent speed zone without reducing his speed toward 40 miles per hour as required, but instead continued at about 55 miles per hour. He failed to maintain his vehicle on the road; it moved toward the shoulder and continued across the paved shoulder onto the gravel and sand next to the road and into the area where the pedestrians were standing. There was no apparent effort to slow the vehicle as it went off the road onto the gravel and grass, or to correct the errant path. There was testimony that no pedestrian in the group stood on any paved part of the roadway at any time and that they had moved at least several steps from the road prior to the accident. One of the individuals who was struck and killed was initially standing on a cement lip away from the fog line and asphalt shoulder, and she and the others walked even further from the road toward the trees when one member of the group announced, upon seeing defendant’s vehicle about a quarter of a mile away, that a vehicle was approaching. It was estimated that the closest person to the road at the moment of impact was at least five feet off the paved portion.

The group of pedestrians had just come from a “Mad Hatter” party sponsored by the camp where they worked, and their festive attire included a bright orange hat and aluminum foil. One of the individuals who was struck had glow stick rings through the elongated piercings of his ears. Another individual in the group was in the process of lighting a cigarette. It was dry and clear with nearly a full moon lighting the sky, and a lamppost was in the vicinity. Despite good visibility and the pedestrians’ bright clothing and glowing objects, defendant failed to observe them. In fact, he told police that they were in the road and that one was on a bicycle (which was not established by any evidence). Indeed, items belonging to the victims, as well as pieces of defendant’s vehicle, were found well off the roadway by investigators. Considered cumulatively, there was ample proof of reckless driving by the combination of excessive speed, going off the road, the distance off the road, no effort to slow down once off the road, and failing to see the pedestrians despite their bright attire and the prevailing clear conditions.

Turning to defendant’s weight of the evidence argument, since an acquittal on the aggravated vehicular homicide count would not have been unreasonable, we must weigh the conflicting testimony and review the rational inferences that may be drawn from the evidence in determining whether the jury justifiably found defendant guilty of this count beyond a reasonable doubt (see People v. Danielson, 9 NY3d 342, 348 [2007]; People v. Romero, 7 NY3d 633, 643-644 [2006]). Defendant’s expert, an engineer, testified that the street lamps in the vicinity made it more difficult to see anything off the road and he also opined that the victims were actually in the roadway when they were hit. This evidence, as well as other proof presented by defendant, created credibility issues that the jury resolved against defendant. Upon a review of the record and according “[g]reat deference” to the jury’s “opportunity to view the witnesses, hear the testimony and observe demeanor” (People v. Bleakley, 69 NY2d 490, 495 [1987]), we are unpersuaded that defendant’s conviction of aggravated vehicular homicide was against the weight of the evidence.

We consider next defendant’s argument that County Court erred by failing to instruct the jury that its analysis of the reckless driving element of aggravated vehicular homicide should focus on whether defendant’s manner of operating the vehicle violated the statutory language of Vehicle and Traffic Law §1212

without regard to defendant’s intoxication. A charge is sufficient where, taken as a whole, it conveys the correct standard to the jury (see People v. Medina, 18 NY3d 98, 104 [2011]; People v. Russell, 266 NY 147, 153 [1934]), and isolated errors in the charge generally do not mandate reversal (see People v. Umali, 10 NY3d 417, 426-427 [2008], cert denied ___ US ___, 129 S Ct 1595 [2009]; People v. Drake, 7 NY3d 28, 32 [2006]). A significant part of defendant’s defense to the top charge in the indictment was premised upon his argument that intoxication should not be used as part of two separate elements in the same crime, i.e., for the intoxication element of vehicular manslaughter and also to show reckless driving. Defense counsel made such an argument before the jury in summation. When the prosecutor made a statement in summation indicating that the jury should consider intoxication as part of reckless driving, defense counsel objected. County Court did not rule on the objection, but stated that it would “explain it all to the jury.”

At the close of summations, defense counsel moved for a mistrial based upon the prosecutor’s statement. Considerable discussions ensued both about the motion and then about County Court’s charge to the jury. The court denied the mistrial motion and appeared to indicate that it agreed with defense counsel that, in the context of aggravated vehicular homicide, the People had to show reckless driving³ independent of intoxication. Nevertheless, the court refused to give a clarifying instruction as requested by defendant.

Three of the four questions from the jury during its deliberation reflected that it was struggling with the proper standard for reckless driving. First, the jury requested that the charge on aggravated vehicular manslaughter be reread and asked whether recklessness had the same definition in all charges. Next, it requested a rereading of the reckless driving charge with a written, underlined definition.⁴ Finally, the jury asked, “Is reckless driving only refe[r]ring to the physical operation of the vehicle? ie, being driven erratically.”

Defendant argues and the concurring opinion agrees that the jury should have been instructed that it could not consider evidence of defendant’s intoxication to prove the reckless driving element of aggravated vehicular manslaughter. In that regard, there is no doubt that the jury should have been instructed that intoxication, absent more, does not establish reckless driving. However, it does not follow that evidence of an individual’s intoxication and how that condition may have affected his or her ability to perceive and react to risks commonly encountered while operating a motor vehicle on a public highway is not relevant or admissible to establish that the motor vehicle was being operated recklessly when it was involved in a fatal accident (see generally People v. Bohacek, 95 AD3d at 1594; People v. Heidgen, 87 AD3d 1016, 1024 [2011], lv granted 17 NY3d 957 [2011]; People v. Ladd, 224 AD2d at 882).⁵

Since the jury was not properly instructed as to what was required to find that defendant was recklessly driving his automobile when involved in this fatal accident, his conviction for aggravated vehicular homicide must be reversed and the matter remitted for a new trial on that charge⁶ (see People v. Medina, 18 NY3d at 104).

Spain, Malone Jr. and McCarthy, JJ., concur.

1. Aggravated vehicular homicide can also generally be viewed as the crime of vehicular manslaughter in the first degree (see Penal Law §125.13) plus reckless driving.

2. However, in the context of the pertinent section of the Penal Law, it serves to elevate a potential C felony to a B felony.

3. There was also discussion regarding the fact that reckless driving should not be confused with acting recklessly, which is a statutorily defined element (see Penal Law §15.05 [3]) of manslaughter in the second degree (see Penal Law §125.12 [1]), a crime with which defendant was also charged.

4. The People objected to giving the jury a written definition, and County Court thus only reread the charge.

5 The concurring opinion regarding the admissibility of this evidence is based in large measure on the concern that “[p]ermitting intoxication to be used twice will likely have the practical effect of vehicular manslaughter in the first degree…routinely becoming the higher offense of aggravated vehicular homicide.” However, an appropriate charge to the jury — one that instructs the jury that intoxication by itself does not constitute reckless driving but, at the same time, allows such evidence to be considered in making that crucial determination — in our view, adequately addresses that concern.

6. Vehicular manslaughter in the first degree (count 2), reckless driving (count 5) and driving while intoxicated (counts 6 and 7) are lesser included offenses of aggravated vehicular homicide (see Penal Law §§125.12, 125.13 [4]; §125.14; Vehicle and Traffic Law §1212; People v. Bain, 85 AD3d 1193, 1194 [2009], lv denied 17 NY3d 902 [2011]; People v. Osborne, 60 AD3d 1310, 1310-1311 [2009], lv denied 12 NY3d 919 [2009]) and, therefore, should have been submitted to the jury as alternative counts or, upon defendant’s conviction of the greater offense, should have been dismissed (see CPL 300.40 [3] [b]). However, defendant has specified that on this appeal he is only challenging the conviction for aggravated vehicular homicide and not the other convictions. Accordingly, in the event that the retrial results in a conviction on the aggravated vehicular homicide charge, the lesser included charges must be dismissed.

Lahtinen, J.P. (concurring).

I agree with the majority’s conclusion that a new trial is necessary on count 1, aggravated vehicular homicide. Respectfully, I write separately because I would hold that a jury should be instructed not to consider a defendant’s intoxicated condition¹when weighing the reckless driving element of the crime of aggravated vehicular homicide. Stated another way, when reckless driving is weighed as an element of aggravated vehicular homicide, the jury’s focus for that element should be limited to the driver’s manner of operation rather than the driver’s condition. The driver’s condition — intoxication — is already an essential part of other elements of the crime of aggravated

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vehicular homicide and should not be used twice to establish separate elements of a single crime.

Permitting one factor (such as intoxication) to be considered twice in enhancing a single crime is not favored (see generally People v. Phelps, 211 Ill 2d 1, 12-13, 809 NE2d 1214, 1221 [2004]) and should not occur absent clear and specific legislative direction (cf. Simpson v. United States, 435 US 6, 14-15 [1978]). Permitting intoxication to be used twice will likely have the practical effect of vehicular manslaughter in the first degree (a class C felony) routinely becoming the higher offense of aggravated vehicular homicide (a class B felony) without any meaningful additional proof required to raise the level of criminality. Such a result is contrary to the graduated culpability reflected by different felony levels ascribed by the Legislature to these crimes (cf. People v. Suarez, 6 NY3d 202, 206-207 [2005]).

The statutory definition of reckless driving in Vehicle and Traffic Law §1212 proscribes a specifically described manner of operation of a vehicle.² Where, as here, that manner of operation serves to elevate to class B felony status a crime that is already a class C felony as a result of intoxicated driving causing death (see Penal Law §125.13), the jury should be instructed to focus solely on the proscribed manner of operation as statutorily defined in Vehicle and Traffic Law §1212 when considering the reckless driving element.

There may be cases where reckless driving is so apparent that failure to properly instruct the jury regarding such element would be harmless error. For example, driving a vehicle at a high rate of speed in the wrong direction on an expressway or

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driving at a high rate of speed through a series of city red lights are acts that squarely fall within the definition of reckless driving. In the current case, the issue was not as clear as these examples. Defendant premised much of his defense on challenging the reckless driving element of count 1 and specifically requested that the jury be instructed not to weigh his intoxication when considering such element. This tragic case is close on the element of reckless driving and, despite specific requests by defendant, inadequate instructions were given to the jury. Accordingly, I agree with the majority that a new trial must be conducted on this count of the indictment.

ORDERED that the judgment is modified, on the law, by reversing defendant’s conviction of aggravated vehicular homicide under count 1 of the indictment and vacating the sentence imposed thereon; matter remitted to the County Court of Warren County for a new trial on said count; and, as so modified, affirmed.

1. The current case involves intoxication and I have limited my discussion to such condition. However, the same analysis would apply if the underlying condition consisted of alcohol and drugs, or drugs alone (see Penal Law §125.12 [1]).

2. As noted by the majority, care must be taken not to confuse “recklessly” as defined for purposes of the Penal Law (see Penal Law §15.05 [3]) with the separately defined misdemeanor of reckless driving contained in Vehicle and Traffic Law §1212, which carries a maximum punishment of a $300 fine and 30 days in jail for a first offense (see Vehicle and Traffic Law §1801).