New York Law Review

Tag: Implied Consent

  • Matter of Gentil v. Margulis, 24 N.Y.3d 1028 (2014): Double Jeopardy and Implied Consent to Mistrial

    Matter of Gentil v. Margulis, 24 N.Y.3d 1028 (2014)

    A defendant’s consent to a mistrial can be implied from the circumstances, such that retrial does not violate double jeopardy protections.

    Summary

    In *Matter of Gentil v. Margulis*, the New York Court of Appeals addressed whether a retrial was barred by double jeopardy after a mistrial was declared in a criminal case. The court held that the defendant had implicitly consented to a mistrial, waiving their double jeopardy protection. This ruling was based on the defendant’s actions, including requesting a partial verdict and remaining silent about the court’s plans for retrial. The court reversed the Appellate Division’s decision, which had granted a petition arguing a lack of manifest necessity for the mistrial, finding the defendant’s implied consent to the mistrial determinative.

    Facts

    During a criminal trial, a juror became unable to continue deliberations. The defendant refused to substitute an alternate juror and requested a partial verdict on the count upon which the jury indicated it had reached a verdict. The trial court declared a mistrial on the remaining counts. The defendant subsequently argued that a retrial on the unresolved counts violated the Double Jeopardy Clause.

    Procedural History

    The defendant filed an Article 78 proceeding in the nature of prohibition, arguing that a retrial would violate double jeopardy. The Appellate Division granted the petition, finding no manifest necessity for a mistrial. The New York Court of Appeals reversed the Appellate Division’s decision.

    Issue(s)

    1. Whether the defendant’s actions constituted implied consent to a mistrial, thereby waiving double jeopardy protection?

    Holding

    1. Yes, because the defendant’s request for a partial verdict and silence regarding retrial plans constituted implied consent to a mistrial.

    Court’s Reasoning

    The court reasoned that a defendant’s consent to a mistrial could be implied from the circumstances. In this case, the defendant’s request for a partial verdict and failure to object to the court’s intentions to retry the unresolved counts indicated implicit consent to the mistrial. The court distinguished this case from situations where the defendant affirmatively opposed the mistrial or did not take actions suggesting agreement. The court emphasized that the issue of consent is a factual question. The majority found the defendant had implicitly consented to the mistrial and therefore did not reach the issue of manifest necessity.

    Judge Fahey, in a concurring opinion, stated that the Appellate Division made no factual findings regarding the defendant’s consent and that such a determination is a factual matter, which the Court of Appeals is generally without power to address. Judge Fahey argued there was manifest necessity for a mistrial.

    Practical Implications

    This case reinforces the principle that a defendant’s actions can waive double jeopardy rights. Attorneys must carefully advise clients on how their conduct during trial can impact their rights. A defendant’s actions, such as requesting specific remedies or remaining silent when retrial is discussed, may be construed as consent to a mistrial. Legal practitioners should ensure that the record clearly reflects a defendant’s position on a mistrial to avoid future disputes about implied consent. Courts will scrutinize the specific facts to determine whether consent can be implied. This decision underscores the importance of a clear record of the defendant’s position, as factual determinations are often not revisited on appeal.

  • People v. Washington, 23 N.Y.3d 228 (2014): Duty to Inform DWI Suspect of Attorney’s Contact

    People v. Washington, 23 N.Y.3d 228 (2014)

    When an attorney contacts the police on behalf of a DWI suspect before a chemical test is administered, the police must inform the suspect of the attorney’s communication, unless doing so would unduly interfere with the test’s administration.

    Summary

    Defendant was arrested for DWI after a fatal car accident. While she was being processed, her attorney contacted the police, requesting that they not question or test her. The police, without informing her of the attorney’s call, obtained her consent for a breathalyzer test and administered it. The New York Court of Appeals held that the police violated her limited right to counsel under People v. Gursey. The Court reasoned that because the attorney contacted the police before the breathalyzer was administered, the police were obligated to inform the defendant of the communication so she could decide whether to consult with counsel.

    Facts

    Jonai Washington struck and killed a pedestrian while driving. Police officers noted she admitted to consuming four beers earlier. She failed field sobriety tests and was arrested for driving while intoxicated. At police headquarters, she was read a chemical test authorization form and signed it, consenting to a breathalyzer test.
    Meanwhile, her family contacted an attorney who then called the Sheriff’s Department and was transferred to a sergeant at police headquarters. The attorney stated he represented Washington and asked the police not to question or test her. This call occurred before the breathalyzer test began, but Washington was not informed of the attorney’s call before the test was initiated.

    Procedural History

    Washington was indicted for manslaughter, vehicular manslaughter, and DWI. She moved to suppress the breathalyzer results, arguing a violation of her right to counsel. The Supreme Court granted the motion, suppressing the results. The Appellate Division affirmed, finding that the police violated Washington’s right to counsel by failing to inform her of her attorney’s contact before the breathalyzer test and that the People failed to show that providing such notice would have interfered with the administration of the test. The dissenting justice granted the People leave to appeal to the Court of Appeals.

    Issue(s)

    Whether the police are required to inform a DWI suspect that an attorney has contacted them on their behalf before administering a chemical test, even if the suspect has already consented to the test.

    Holding

    Yes, because the statutory right to legal consultation applies when an attorney contacts the police before a chemical test is performed, and the police must alert the suspect to the presence of counsel, whether the contact is made in person or telephonically, unless doing so would unduly interfere with the administration of the test. The suspect could have revoked her consent prior to administration of the test after conferring with counsel.

    Court’s Reasoning

    The Court of Appeals relied on its prior holding in People v. Gursey, which recognized a limited right to counsel in DWI cases based on the implied consent law. While Gursey primarily addressed situations where the suspect *personally* requests counsel, the Court extended its reasoning to situations where counsel intervenes on the suspect’s behalf *before* the chemical test is administered. The Court reasoned that Vehicle and Traffic Law § 1194 grants a driver a qualified right to refuse a chemical test, and advice from counsel may be sought to inform that decision. The Court stated that the police must advise the accused that a lawyer has made contact on the accused’s behalf. Once so informed, the accused may choose to consult with counsel or forgo that option and proceed with the chemical test.

    The Court emphasized that the right to counsel is not absolute and cannot be used to unduly delay the administration of the chemical test, referencing the time-sensitive nature of blood alcohol content evidence. However, because the police failed to inform Washington of her attorney’s contact *before* the breathalyzer was administered, and the People did not demonstrate that providing such notice would have been unreasonable, the Court held that her right to counsel was violated, and suppression of the test results was warranted. The operative point is the actual performance of the procedure and, until it occurs, legal assistance may be sought “if such access does not interfere unduly” with the administration of the chemical test.

  • People v. Marte, 97 N.Y.2d 82 (2001): Implied Consent to Mistrial Based on Silence at O’Rama Conference

    People v. Marte, 97 N.Y.2d 82 (2001)

    A defendant’s consent to a mistrial can be implied from the circumstances, particularly their silence and lack of objection at an O’Rama conference when the trial judge indicates the intention to declare a mistrial.

    Summary

    This case addresses whether a defendant impliedly consented to a mistrial. During jury deliberations, the jury sent a note indicating they reached a verdict on some counts but were deadlocked on others. At an O’Rama conference, the trial judge stated his intent to take a partial verdict and declare a mistrial on the remaining counts. Defense counsel did not object when asked for their input. After the jury was discharged, the defendant objected. The Court of Appeals held that the defendant impliedly consented to the mistrial by remaining silent during the O’Rama conference when the judge announced his intentions, precluding a later objection. The court emphasized the importance of active participation in O’Rama conferences to avoid misleading the court.

    Facts

    The jury deliberated and sent a note stating it reached a verdict on two counts but was deadlocked on others.

    At an O’Rama conference, the trial judge indicated his intent to take a partial verdict and declare a mistrial on the undecided charges.

    The judge asked defense counsel if they wanted to be heard; counsel for one defendant responded “no,” and counsel for the co-defendant remained silent.

    After the partial verdict but before discharging the jury, the judge again inquired if there was anything defense counsel wanted to put on the record; neither attorney responded.

    After the jury was discharged, the defendant objected to the mistrial.

    Procedural History

    The trial court declared a mistrial on the undecided charges.

    The Appellate Division affirmed, finding implied consent to the mistrial.

    The Court of Appeals affirmed the Appellate Division’s judgment.

    Issue(s)

    Whether the defendant impliedly consented to a mistrial by remaining silent during the O’Rama conference when the trial judge indicated his intention to declare a mistrial.

    Holding

    Yes, because there was record support for the lower court’s finding of implied consent based on the defendant’s silence and lack of objection at the O’Rama conference when the trial judge indicated his intention to declare a mistrial. The purpose of the O’Rama conference is for attorneys to advise the court, and the defense cannot remain silent, giving the false impression of acquiescence, and then object later.

    Court’s Reasoning

    The Court relied on People v. Ferguson, which states that consent to a mistrial can be implied from the circumstances. The court found that the defense counsels’ silence during the O’Rama conference, when the judge announced his intention to declare a mistrial on the undecided charges, constituted implied consent. The court emphasized the purpose of an O’Rama conference, which is for attorneys to assist the court in averting error by advising the court concerning the appropriate response to a jury note. Allowing attorneys to remain silent during the conference and then object later would undermine the purpose of the O’Rama procedure. The court reasoned that if the defense believed the court should have taken a different course of action, such as giving an Allen charge, they should have suggested it at the O’Rama conference. By remaining silent, they allowed the court to proceed under the impression that the defense agreed with the proposed course of action. The Court stated, “If this were permissible, attorneys could—by their silence—lull the court into taking actions that could not later be undone.” The court concluded that focusing on the circumstances leading up to the dismissal of the jury, rather than post-discharge statements, is appropriate when determining implied consent. The court noted the defense’s silence prevented the creation of a record that would facilitate appellate review of whether manifest necessity existed for the mistrial.

  • People v. Damiano, 87 N.Y.2d 874 (1995): Implied Consent and Annotated Verdict Sheets

    People v. Damiano, 87 N.Y.2d 874 (1995)

    A defendant’s implied consent to the submission of an annotated verdict sheet to the jury is a factual question, and the lower court’s finding on this matter must be upheld if supported by the record.

    Summary

    This case addresses whether a defendant implicitly consented to the submission of an annotated verdict sheet to the jury. The Appellate Division reversed convictions on some counts, finding no consent. The Court of Appeals held that implied consent is a factual question. Because the Appellate Division’s finding of no consent was based on its analysis of the record and competing inferences, and not purely on a matter of law, the People’s appeal was dismissed. The Court also upheld the denial of the defendant’s motion to vacate his conviction.

    Facts

    The defendant was convicted on several counts. The Appellate Division modified the judgment by reversing convictions on some counts where the verdict sheet was annotated and affirming the remaining convictions. The annotations on the verdict sheet included factual information beyond merely identifying the charges. The People argued the defendant impliedly consented to the annotated verdict sheet.

    Procedural History

    The Supreme Court convicted the defendant. The Appellate Division modified the judgment, reversing convictions on specific counts and affirming the rest, and affirmed the Supreme Court’s denial of the defendant’s motion to set aside the conviction. The People appealed the reversal of some convictions. The defendant appealed the affirmance of the denial of his motion to vacate the conviction. The Court of Appeals addressed both appeals.

    Issue(s)

    1. Whether the Appellate Division’s finding of no consent to the submission of an annotated verdict sheet was a determination of law alone.

    2. Whether the lower courts erred in finding the defendant waived his request for prior testimony minutes of a People’s witness.

    3. Whether the defendant’s conviction should be vacated because the prosecution allegedly failed to disclose the possible falsity of a People’s witness’s testimony.

    Holding

    1. No, because the Appellate Division’s finding was based on its factual analysis of the record, involving competing inferences drawn from the record, and thus the People’s appeal must be dismissed.

    2. No, because evidentiary support exists in the record for the finding that defendant waived his request.

    3. No, because the defendant’s claims are without merit.

    Court’s Reasoning

    The Court of Appeals reasoned that the issue of a defendant’s implied consent is a factual question. They cited precedent (People v. Ferguson, People v. Connor, People v. Epps) stating that factual findings of lower courts regarding implied waiver of procedural rights must be upheld if supported by the record. The court emphasized that the Appellate Division’s decision was based on its analysis of the record, specifically the competing inferences about whether the defendant truly consented. Because the Appellate Division’s reversal was not based solely on a matter of law, the People’s appeal was dismissed, as CPL 450.90[2][a] limits appeals to questions of law alone.

    The Court distinguished the counts where the verdict sheet included substantive annotations from counts where the annotations were merely identifying (dates, names). Only the former were reversed.

    Regarding the defendant’s appeal, the Court deferred to the lower courts’ finding that the defendant waived his right to certain testimony minutes. They also found no merit in the claim that the prosecution failed to disclose potentially false testimony, discovered only in a subsequent trial. As stated in the opinion: “We likewise agree with the Appellate Division’s rejection, as meritless, of defendant’s claims in his CPL 440.10 motion that his conviction should be vacated because the prosecution did not disclose the possible falsity of certain testimony of a People’s witness, only discovered when that witness testified at a trial subsequent to that at bar.”

  • People v.的好色喔啦, 76 N.Y.2d 870 (1990): Implied Consent and Blood Alcohol Tests for Unconscious Drivers

    People v.的好色喔啦, 76 N.Y.2d 870 (1990)

    Under New York Vehicle and Traffic Law § 1194(2)(a)(1), the implied consent to a blood alcohol test applies even if the driver is unconscious and not formally placed under arrest, provided the officer has reasonable grounds to believe the driver violated § 1192 and the test is administered within two hours of when the arrest would have occurred.

    Summary

    The New York Court of Appeals held that the implied consent provision of Vehicle and Traffic Law § 1194(2)(a)(1) allows for a blood alcohol test to be administered to an unconscious driver, even if a formal arrest has not been made. The defendant was involved in an accident and remained unconscious for two weeks. The court reasoned that a formal arrest would have been a meaningless gesture in this situation and that the statutory requirements were met because the officer had reasonable grounds to believe the defendant was driving under the influence, and the test was administered within two hours of when the arrest would have occurred had the defendant been conscious. The court affirmed the lower court’s decision to admit the blood alcohol test results as evidence.

    Facts

    The defendant was involved in a motor vehicle accident and was found unconscious at the scene by police officers.

    The defendant remained comatose for approximately two weeks following the accident.

    A blood sample was taken from the defendant at the direction of a police officer, and the test revealed a blood alcohol level exceeding the legal limit.

    The blood alcohol test was administered within two hours of the accident.

    Procedural History

    The defendant was tried for reckless and vehicular manslaughter.

    The trial included evidence obtained from the blood alcohol test administered pursuant to Vehicle and Traffic Law § 1194 (2) (a) (1).

    The defendant argued that the evidence should have been suppressed because he had not been formally placed under arrest at the time the blood sample was taken.

    The Appellate Division affirmed the trial court’s decision to admit the evidence.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether evidence obtained from a blood alcohol test administered to an unconscious driver, who was not formally placed under arrest, is admissible under Vehicle and Traffic Law § 1194(2)(a)(1)?

    Holding

    Yes, because a formal arrest would have been an empty gesture given the defendant’s unconscious state, and the statutory requirements of reasonable grounds and timely testing were met.

    Court’s Reasoning

    The court relied on the language of Vehicle and Traffic Law § 1194(2)(a)(1), which states that any person who operates a motor vehicle in the state is deemed to have consented to a chemical blood alcohol test if a police officer has reasonable grounds to believe the person was driving under the influence and the test is administered within two hours after the person has been placed under arrest.

    The court reasoned that the purpose of the statute is to obtain evidence of intoxication in a timely manner and that requiring a formal arrest of an unconscious person would serve no practical purpose. The court stated that “a formal arrest would have been an empty gesture in defendant’s case, since defendant was unconscious when the police first arrived at the scene of the accident and he remained comatose for approximately two more weeks.”

    The court distinguished the case from People v. Almond, 151 A.D.2d 820, where the blood test was suppressed because the police found the defendant conscious but waited until he was unconscious due to medical treatment before administering the test, without formally arresting him first.

    The court emphasized that the key factors were the officer’s reasonable belief that the defendant was driving under the influence and the fact that the test was administered within two hours of when the arrest would have occurred. By focusing on these key elements, the court ensured that the implied consent statute would be applied in a manner consistent with its purpose of promoting highway safety and deterring drunk driving.

  • People v. Thomas, 70 N.Y.2d 823 (1987): Permissible Consequences Notification in Breathalyzer Refusal

    People v. Thomas, 70 N.Y.2d 823 (1987)

    In New York, informing a driver of consequences beyond statutory license suspension/revocation for refusing a breathalyzer test does not automatically invalidate a subsequent breathalyzer test if probable cause exists and the driver ultimately consents.

    Summary

    The New York Court of Appeals affirmed a County Court order, holding that a breathalyzer test was admissible even though the police informed the defendant of consequences for refusal beyond those explicitly stated in Vehicle and Traffic Law § 1194 (2). The Court reasoned that the statute is not violated when officers inform a person of all the consequences of refusing a breathalyzer, and there was independent support for the suppression court’s finding of probable cause to administer the test.

    Facts

    The defendant was arrested for driving while intoxicated. The arresting officer requested the defendant submit to a breathalyzer test. The officer informed the defendant that if he refused, his license would be immediately suspended and subsequently revoked, as required by Vehicle and Traffic Law § 1194 (2). The officer also informed the defendant that refusal would result in arraignment before a Magistrate and the posting of bail. Initially, the defendant refused the test but subsequently agreed to take it.

    Procedural History

    The defendant sought to suppress the breathalyzer test results, arguing that the police violated Vehicle and Traffic Law § 1194 (2) by administering the test after his initial refusal and by informing him of consequences not specified in the statute. The County Court denied the suppression motion. The Court of Appeals affirmed the County Court’s order, upholding the admissibility of the breathalyzer test results.

    Issue(s)

    Whether the police violated Vehicle and Traffic Law § 1194 (2) by administering a breathalyzer test after the defendant’s initial refusal, and by informing him of consequences of refusal beyond license suspension/revocation.

    Holding

    No, because the statute does not prohibit informing a driver of all consequences of refusing a breathalyzer test, and independent probable cause existed for the arrest.

    Court’s Reasoning

    The Court of Appeals reasoned that Vehicle and Traffic Law § 1194 (2) requires informing a driver that their license will be immediately suspended and subsequently revoked for refusing a breathalyzer. However, the Court found that the statute does not prohibit informing the driver of other potential consequences beyond the specific statutory warning. The Court stated, “Contrary to defendant’s assertion, the statute is not violated by an arresting officer informing a person as to the consequences of his choice to take or not take a breathalyzer test.” The Court also emphasized that the suppression court’s finding of probable cause was supported by the record, and the Court of Appeals’ review process ends when such support exists, citing People v. Jones, 69 N.Y.2d 853, 855. This affirms that even if additional, non-statutory consequences are mentioned, a subsequent consent to the test is valid if probable cause is established.

  • People v. Ferguson, 67 N.Y.2d 383 (1986): Attorney Consent to Mistrial Binding on Absent Defendant

    67 N.Y.2d 383 (1986)

    An attorney’s consent to a mistrial, whether express or implied, is binding on the defendant, even if the defendant is absent and has not personally consented, as the decision to consent to a mistrial falls within the scope of the attorney’s authority.

    Summary

    Edward Ferguson was convicted of second-degree murder after a retrial. His first trial ended in a mistrial declared while he was absent. Ferguson appealed, arguing double jeopardy, claiming his lawyer’s consent to the mistrial was invalid without his presence and personal consent. The New York Court of Appeals affirmed the conviction, holding that defense counsel’s implied consent to the mistrial was binding on the defendant, even in his absence, and that personal consent from the defendant was not constitutionally required. The court reasoned the decision to consent to a mistrial is a tactical one properly belonging to the attorney.

    Facts

    Edward Ferguson was charged with second-degree murder after fatally shooting Ozell Jackson. During the fourth day of the trial, a juror was involved in an automobile accident and hospitalized. The trial judge, after a conference with attorneys (not recorded), indicated she was considering a mistrial due to the lack of alternate jurors. Ferguson was absent when the judge announced to the remaining jurors that a mistrial would be declared. Defense counsel waived Ferguson’s appearance and remained silent as the judge dismissed the jury.

    Procedural History

    The first trial ended in a mistrial. Prior to the second trial, Ferguson moved to dismiss the indictment, claiming double jeopardy, arguing his attorney had not given unqualified consent. The trial court denied the motion. Ferguson was convicted in the second trial. The Appellate Division affirmed the conviction, finding implied consent from defense counsel. The dissenting justices disagreed with the finding of implied consent and argued that the defendant’s presence was necessary for the attorney’s consent to be valid. Ferguson appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether defense counsel impliedly consented to the mistrial.
    2. Whether defense counsel’s consent to a mistrial is effective only if the defendant was present at the time such consent was given.

    Holding

    1. Yes, because defense counsel’s statement in chambers (“the Judge must do what she feels must be done”) and silence when the court declared a mistrial to the jury provided support for the lower courts’ finding of implied consent.
    2. No, because the decision to consent to a mistrial is a tactical one that falls within the scope of the attorney’s authority, and thus the defendant’s personal consent or presence is not constitutionally required.

    Court’s Reasoning

    The Court of Appeals addressed whether the defendant’s right against double jeopardy was violated. It acknowledged that retrial after a mistrial is barred unless there was manifest necessity or the defendant consented. The court found manifest necessity lacking because the judge did not adequately explore alternatives to a mistrial, such as a brief continuance. Therefore, the permissibility of the retrial hinged on the defendant’s consent. The court found implied consent based on the attorney’s statement in chambers and silence in court. The court then addressed whether the defendant’s personal consent was required. The court stated that “consent to a mistrial allows a retrial regardless of whether defendant knowingly waived the right not to be prosecuted twice”. The court aligned itself with numerous jurisdictions that hold that “there is no requirement that the Trial Judge obtain the personal consent of the defendant to a mistrial or scrutinize whether the attorney has consulted with the defendant.” The court reasoned that a defendant with counsel relegates control of much of the case to the lawyer, except for certain fundamental decisions (e.g., pleading guilty, waiving a jury, testifying, or appealing). The decision to consent to a mistrial does not fall within this limited category because it requires an evaluation of the case, analysis of evidence, and consideration of potential harm and benefits, making it an appropriate decision for the lawyer. The court noted that while it would be preferable for the lawyer to consult with the client, it held that “for purposes of double jeopardy there was consent to the mistrial.”

  • People v. Goodell, 68 N.Y.2d 392 (1986): Admissibility of Blood Test Results in Criminally Negligent Homicide Cases

    People v. Goodell, 68 N.Y.2d 392 (1986)

    Blood samples taken pursuant to Vehicle and Traffic Law § 1194, even without a separate court order, are admissible in prosecutions for criminally negligent homicide under the Penal Law, provided the statutory requirements for taking the sample are met.

    Summary

    The defendant was convicted of criminally negligent homicide after a single-car accident in which his passenger died. A blood sample taken while the unconscious defendant was at the hospital revealed intoxication. The New York Court of Appeals affirmed the conviction, holding that the blood test results were admissible. The Court found that the defendant failed to properly preserve the argument that a separate court order was required under People v. Moselle. The Court further reasoned that the blood sample was taken in compliance with Vehicle and Traffic Law § 1194, as it was taken within two hours of arrest by a registered nurse at the request of a police officer with reasonable grounds to believe the defendant violated Vehicle and Traffic Law § 1192. The Court relied on the implied consent provision of the statute, even though the defendant was unconscious.

    Facts

    On November 3, 1979, the defendant was involved in a single-car accident where he was the driver, and his passenger was killed.

    After the accident, the unconscious defendant was taken to a hospital.

    While still unconscious at the hospital, the defendant was arrested, and a blood sample was taken.

    The blood sample revealed that the defendant was intoxicated at the time of the accident.

    Procedural History

    The defendant was convicted of criminally negligent homicide (Penal Law § 125.10) after a jury trial.

    The Appellate Division affirmed the conviction.

    The case was appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether blood sample results taken pursuant to Vehicle and Traffic Law § 1194, without a separate court order, may be used in prosecutions brought under the Penal Law.

    2. Whether the results of a blood test are admissible if the blood sample was not taken in compliance with Vehicle and Traffic Law § 1194.

    Holding

    1. No, because the defendant failed to raise that specific argument at the suppression hearing.

    2. No, because the sample was taken within two hours of the arrest by a registered nurse at the request of a police officer, who had reasonable grounds to believe that defendant had been operating a vehicle in violation of section 1192 of the Vehicle and Traffic Law, and the defendant’s consent to provide a blood sample was implied under section 1194 of the Vehicle and Traffic Law, notwithstanding that he was unconscious at the time of the blood withdrawal.

    Court’s Reasoning

    The Court of Appeals first addressed the defendant’s argument that the blood test results should have been suppressed under People v. Moselle, which concerned the use of blood samples taken under the Vehicle and Traffic Law in Penal Law prosecutions. The Court found that this argument was not properly preserved for review because the defendant failed to raise this specific objection at the suppression hearing, citing People v. Colon and People v. Thomas.

    Turning to the defendant’s second claim, the Court reasoned that the blood sample was taken in compliance with Vehicle and Traffic Law § 1194. The Court emphasized that the sample was taken within two hours of the arrest by a registered nurse at the request of a police officer who had reasonable grounds to believe that the defendant had violated Vehicle and Traffic Law § 1192, which prohibits operating a vehicle while under the influence of alcohol or drugs.

    The Court relied on the implied consent provision of § 1194, stating, “Defendant’s consent to provide a blood sample was implied under section 1194 of the Vehicle and Traffic Law, notwithstanding that he was unconscious at the time of the blood withdrawal” (citing People v. Kates). Because the statute’s requirements were met, there was no basis for suppressing the blood test results.

    The Court concluded that because the requirements of Vehicle and Traffic Law § 1194 were satisfied, the blood sample was properly admitted as evidence and the conviction was affirmed.

  • People v. Moselle, 57 N.Y.2d 97 (1982): Warrantless Blood Draws and Admissibility in Court

    People v. Moselle, 57 N.Y.2d 97 (1982)

    Blood samples taken from a defendant without consent or a court order are inadmissible in prosecutions for driving under the influence or under the Penal Law, except when taken in compliance with Vehicle and Traffic Law § 1194.

    Summary

    This case consolidates three appeals concerning the admissibility of blood samples taken without consent from individuals involved in car accidents. The New York Court of Appeals held that, absent consent or a valid court order, blood samples are inadmissible in DUI and Penal Law prosecutions unless obtained in compliance with Vehicle and Traffic Law § 1194. This decision rests on the preemption of blood sample authorization by Vehicle and Traffic Law § 1194 for DUI cases and CPL 240.40 for other criminal prosecutions. The court emphasized the need for either explicit statutory authorization or a court order before such samples can be taken and used as evidence.

    Facts

    In People v. Moselle, the defendant was involved in an accident, and officers detected a strong odor of alcohol. A blood sample was taken without his consent or arrest. The blood alcohol content (BAC) was .17%. In People v. Daniel, the defendant crashed his van, and officers found alcohol in the vehicle. The defendant was semiconscious, and a blood sample was taken without consent. His BAC was .22%. In People v. Wolter, the defendant collided head-on with another vehicle, resulting in a fatality. He was arrested for driving while intoxicated but refused a blood test. Despite his refusal, a sample was taken, revealing a BAC of .23%.

    Procedural History

    In Moselle, the defendant was convicted of violating Vehicle and Traffic Law § 1192(2), but the Erie County Court reversed the conviction. In Daniel, the Erie County Court granted the defendant’s motion to suppress the blood test results, which the Appellate Division affirmed. In Wolter, the Livingston County Court ruled that the blood test could be used in the manslaughter trial but not the DUI charge. The Appellate Division reversed Wolter’s conviction. The Court of Appeals granted permission to appeal in all three cases.

    Issue(s)

    1. Whether blood samples taken without consent or a court order are admissible in prosecutions for operating a motor vehicle while under the influence of alcohol under Vehicle and Traffic Law § 1192 when the procedural requirements of Vehicle and Traffic Law § 1194 are not observed.
    2. Whether blood samples taken without consent or a court order are admissible in prosecutions under the Penal Law.

    Holding

    1. No, because absent a manifestation of the defendant’s consent thereto, blood samples taken without a court order other than in conformity with the provisions of subdivisions 1 and 2 of section 1194 of the Vehicle and Traffic Law are inadmissible in prosecutions for operating a motor vehicle while under the influence of alcohol under section 1192 of that law.
    2. No, because blood samples taken without a defendant’s consent are inadmissible in prosecutions under the Penal Law unless taken pursuant to an authorizing court order.

    Court’s Reasoning

    The court based its decision on two legislative enactments: Vehicle and Traffic Law § 1194 and CPL 240.40. Section 1194 authorizes chemical blood tests for DUI prosecutions only under specific conditions (arrest or breath test indication of alcohol) and explicitly states that “if the person refuses to submit to such chemical test, the test shall not be given.” CPL 240.40 outlines discovery procedures, including obtaining non-testimonial evidence like blood samples, but requires a court order. The court found that the Legislature, by enacting these provisions, preempted the field of blood sample authorization. The court stated, “No room is then left for the taking of samples of blood otherwise than pursuant to a court order issued under CPL 240.40 or a court order otherwise authorized by law (or in conformity with § 1194). The negative inference is that the taking of blood in any other manner is foreclosed.” Therefore, because the blood samples in these cases were taken without either consent or a valid court order, they were deemed inadmissible. The court emphasized that “exigent circumstances” might excuse the failure to obtain a court order, but do not provide a source of authority to conduct discovery.

  • Con Edison v. Paul Schultz, 48 N.Y.2d 925 (1979): Recovery for Tampered Electric Meter

    Con Edison v. Paul Schultz, 48 N.Y.2d 925 (1979)

    A utility company is entitled to recover for services used when a customer’s electric meter has been tampered with, even if the utility cannot prove who caused the tampering, but the amount of damages must be properly determined.

    Summary

    This case addresses the issue of liability and damages when an electric meter has been tampered with, and the customer is aware of the tampering. The New York Court of Appeals held that Consolidated Edison (Con Edison) was entitled to recover for the electricity used by the customer (Schultz), regardless of who caused the tampering, because the customer was aware of the situation. However, the Court also found that there was a triable issue of fact regarding the calculation of damages, necessitating a new trial on that specific issue.

    Facts

    Paul Schultz’s electric meter was tampered with. Con Edison claimed Schultz was aware of the tampering. Con Edison brought a counterclaim to recover for the electricity Schultz actually used during the period of the tampering. The test period Con Edison used to estimate damages was at the end of the five-year period during which the meter malfunctioned and was atypical. Schultz’s store hours were 50% greater and the area to be lighted increased eightfold from the beginning to the end of the period.

    Procedural History

    Con Edison brought a counterclaim against Schultz. Schultz demanded a jury trial, and Con Edison did not object, thus agreeing to a jury determination of the amount owed. The lower court directed judgment for Con Edison. The Appellate Division affirmed the judgment regarding liability but modified it concerning damages. The Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether Consolidated Edison is entitled to recover for services actually used by plaintiff when the plaintiff’s electric meter was tampered with, regardless of who caused the tampering, if the plaintiff was aware of the tampering. Whether there was a triable issue for the jury concerning the amount of damages owed to Consolidated Edison.

    Holding

    1. Yes, because it was undisputed that the plaintiff’s electric meter was tampered with and that the plaintiff was aware of that fact, Consolidated Edison was entitled to recover for the service actually used by the plaintiff, without regard to who caused the tampering.

    2. Yes, because there was a triable issue for the jury concerning the amount of damages due to the propriety of the test period used which was at the end of the five-year period during which the meter functioned improperly and was atypical.

    Court’s Reasoning

    The Court reasoned that because Schultz knew about the tampering, Con Edison was entitled to compensation for the services used, regardless of who was responsible for the tampering. The Court highlighted paragraph 18 of Con Edison’s counterclaim as sufficient pleading for recovery under this theory. The Court found no triable issue regarding liability because the evidence established Schultz’s awareness.

    However, the Court found a triable issue concerning the amount of damages. Schultz demanded a jury trial on the counterclaim, and Con Edison consented by failing to object. The Court noted the test period used to calculate damages was problematic because it occurred at the end of the five-year period of meter malfunction and was atypical due to increased store hours and expansion of the store’s area. Because of these factors affecting electricity usage during the test period, the Court deemed a jury trial necessary to determine the proper amount of damages. The Court stated, “There clearly was a triable issue for the jury concerning amount of damages: the propriety of the test period used which was at the end of the five-year period during which the meter functioned improperly and was atypical, according to plaintiff’s testimony, both as to time (hours the store was open were 50% greater than the rest of the year) and area to be lighted (from the beginning to the end of the period the area of the store increased eightfold).”