People v. Butler (Rayfus)

People v Butler (2020 NY Slip Op 50761(U)) [*1] People v Butler (Rayfus) 2020 NY Slip Op 50761(U) [67 Misc 3d 144(A)] Decided on June 25, 2020 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 25, 2020 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Shulman, P.J., Cooper, Torres, JJ. 14-083 The People of the State of New York, Respondent, against Rayfus Butler, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Julio Rodriguez III, J., at suppression motion; Geraldine Pickett, J., at trial and sentencing), rendered May 31, 2013, after a jury trial, convicting him of driving while intoxicated per se, and imposing sentence. Per Curiam. Judgment of conviction (Julio Rodriguez III, J., at suppression motion; Geraldine Pickett, J., at trial and sentencing), rendered May 31, 2013, affirmed. While an individual charged with driving while intoxicated has a right to consult with an attorney before deciding whether to submit to a chemical test, it is only a qualified right to counsel, not a constitutional one (see People v Smith, 18 NY3d 544, 549-550 [2012]; People v Higgins, 124 AD3d 929, 933 [2015]). To invoke this right, the request must be specific and unequivocal (see People v Keener, 138 AD3d 1162, 1163 [2016], lv denied 27 NY3d 1134 [2016]). Here, the suppression court, which adopted the findings of fact and conclusions of law made by a judicial hearing officer, properly determined that defendant did not make a specific and unequivocal request to speak to an attorney before deciding to submit to the breathalyzer test that established a .157 blood alcohol content (People v Curkendall, 12 AD3d 710, 715 [2004], lv denied 4 NY3d 743 [2004]; People v Vinogradov, 294 AD2d 708, 709 [2002]; cf. People v Mora-Hernandez, 77 AD3d 531 [2010]). The credited evidence, including the videotape of defendant's breathalyzer test, established that defendant, while "speaking incessantly" for nearly thirty minutes and mentioning that he had a lawyer, never requested to see or speak with his lawyer or any other lawyer regarding the decision to take the breath test, and repeated that he was not refusing to take a breathalyzer test. Even assuming that defendant's statement "you can call my attorney all day" could be viewed as defendant making "a specific request for an attorney vis-a-vis th[e] decision" to submit to a chemical test (People v Higgins at 933-934, quoting People v Curkendall, 12 AD3d at 715), the officer responded "call your lawyer if you want." Defendant, however, never took the officer [*2]up on this offer nor made any further mention of his attorney. Thus, it cannot be said that police "prevent[ed] access between [defendant] and his lawyer" in connection with such decision (People v Gursey, 22 NY2d 224, 227 [1968]; see People v Smith, 18 NY3d at 550; People v Keener, 138 AD3d at 1164). Accordingly, the motion to suppress the test results and defendant's subsequent statements was properly denied. All concur. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Clerk of the Court Decision Date: June 25, 2020