                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 8, 2015                    106931
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

STEVEN HIGGINS,
                    Respondent.
________________________________


Calendar Date:    November 21, 2014

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                              __________


      Joel E. Abelove, District Attorney, Troy (Kelly L. Egan of
counsel), for appellant.

      Adam C. Eggleston, Albany (Kevin O'Brien of counsel), for
respondent.

                              __________


Garry, J.

      (1) Appeal from an order of the County Court of Rensselaer
County (Young, J.), entered August 8, 2014, which, among other
things, granted defendant's motion to suppress certain evidence,
and (2) motion to strike appendix.

      On October 8, 2013, defendant was observed driving in an
erratic manner and was stopped by an officer of the East
Greenbush Police Department in the Town of East Greenbush,
Rensselaer County. Upon approaching the vehicle, the officer
observed that defendant smelled of alcohol and had slurred speech
and bloodshot, glassy eyes. The officer administered three field
sobriety tests, all of which defendant failed. Defendant was
arrested, transported to the police station for booking, and
                              -2-                106931

ultimately indicted on numerous violations of the Vehicle and
Traffic Law, including felony driving while intoxicated and
refusing to submit to a breath test. Defendant thereafter served
an omnibus motion seeking, among other things, Mapp, Dunaway and
Huntley hearings and the suppression of certain evidence
including, as relevant here, defendant's statements to police.
The People consented to a Huntley hearing, and County Court
granted defendant's request for a Mapp/Dunaway hearing. At the
joint hearing, defendant argued that he had invoked his right to
counsel almost immediately upon the start of the booking process
and that any statements he made thereafter should be suppressed,
including those depicted in a video of the booking process
(hereinafter the video).1 Following the hearing, the court
determined that defendant had invoked his right to counsel at the
onset of the booking process, that the police had failed to honor
his request for counsel, and that defendant's statements
thereafter should be suppressed. As a result, the court
suppressed the video in its entirety. The People appeal.2



    1
        The parties agree that the timestamps appearing on the
video deviate slightly from the actual time at which events
occurred; in the interest of clarity, all time references herein
refer to the timestamps on the video. The full video begins upon
defendant's entry to the booking room, at 3:21 a.m., and
continues for several hours thereafter. However, defendant
received Miranda warnings at 4:23 a.m., and the People concede
that he validly invoked his right to counsel in response. They
do not seek to introduce any of his statements or portions of the
video thereafter, and our analysis deals only with the period
between 3:21 a.m. and 4:23 a.m.
    2
        Following submission of defendant's brief and appendix,
the People moved to strike the appendix on the ground that its
contents were not part of the record that had previously been
properly served, certified and submitted in compliance with the
Rules of the Appellate Division, Third Department (22 NYCRR)
§ 800.7 (b). The motion is granted, and neither the appendix nor
any references thereto in the briefs were considered in deciding
this appeal.
                              -3-                106931

      Initially, we wholly reject the People's contention that
County Court erred in granting defendant's request for a
Mapp/Dunaway hearing. Although a defendant seeking a suppression
hearing must make sworn factual allegations supporting his or her
motion, CPL 710.60 "does not mandate summary denial of
defendant's motion even if the factual allegations are deficient"
(People v Mendoza, 82 NY2d 415, 429 [1993]; see CPL 710.60 [3]).
Here, the People had consented to a Huntley hearing "grounded in
the same facts involving the same police witnesses" (People v
Mendoza, 82 NY2d at 429). Principles of judicial economy clearly
weighed in favor of conducting any related suppression hearings,
and we cannot find any error in so proceeding.

      The People further contend that County Court erred in
suppressing all of defendant's statements during the booking
process as well as the video depicting them. The court found
that defendant had invoked his right to counsel when he stated at
the outset of the booking process – specifically at 3:23 a.m. –
that he wanted to speak to his attorney before he would sign
anything. A defendant's request for an attorney will invoke his
or her indelible right to counsel if the request is unequivocal,
an inquiry which "is a mixed question of law and fact that must
be determined with reference to the circumstances surrounding the
request including the defendant's demeanor, manner of expression
and the particular words found to have been used by the
defendant" (People v Glover, 87 NY2d 838, 839 [1995]; accord
People v Jemmott, 116 AD3d 1244, 1246 [2014]; see People v
Phoenix, 115 AD3d 1058, 1059 [2014], lv denied 23 NY3d 1024
[2014]; see also People v Harris, 93 AD3d 58, 67 [2012], affd 20
NY3d 912 [2012]). Generally, remarks that are subject to
numerous objective interpretations or a defendant's mere
"suggestion that counsel might be desired . . . will not suffice"
(People v Mitchell, 2 NY3d 272, 276 [2004]; see People v Fridman,
71 NY2d 845, 846 [1988]; People v Wade, 296 AD2d 720, 720
[2002]). Here, considering the circumstances existing at the
time of the statement, defendant's request to speak to his
attorney before signing anything was prospective, as he had not
been asked to sign anything. An objective officer could
interpret the statement as merely a forewarning of a possible,
contingent desire to confer with counsel rather than an
unequivocal statement of defendant's present desire to do so
                              -4-                106931

(compare People v Porter, 9 NY3d 966, 967 [2007]). Accordingly,
defendant's statement at 3:23 a.m. did not suffice to invoke his
right to counsel (see People v Engelhardt, 94 AD3d 1238, 1240-
1241 [2012], lv denied 19 NY3d 960 [2012]; People v Isaac, 224
AD2d 993, 994 [1996], lv denied 88 NY2d 937 [1996]; People v
Thompson, 153 AD2d 456, 464 [1990], lv denied 76 NY2d 867
[1990]).

      However, defendant's statement at 3:41 a.m., requesting
that he be allowed to call his attorney, was sufficiently
unequivocal to invoke his right to counsel (see People v Jones,
21 AD3d 429, 429 [2005], lv denied 6 NY3d 755 [2005]; compare
People v Glover, 87 NY2d at 839). The officers agreed to allow
defendant to contact his attorney, but never provided him with
the means to do so. Thus, any testimonial statements that were
elicited from defendant after this point were properly subject to
suppression (see People v Dashnaw, 85 AD3d 1389, 1390-1391
[2011], lv denied 17 NY3d 815 [2011]; see also People v Pinzon,
44 NY2d 458, 464 [1978]; compare People v Jabaut, 111 AD3d 1140,
1141-1142 [2013], lv denied 22 NY3d 1139 [2014]). The People
argue, however, that County Court's order was not limited to
testimonial statements, but also improperly suppressed
defendant's responses to pedigree questions, spontaneous
declarations, physical appearance and refusal to submit to
chemical testing.

      Initially, although a defendant's responses to routine
booking questions that are "reasonably related to . . .
administrative concerns" are not subject to suppression (People v
Rodney, 85 NY2d 289, 293 [1995] [internal quotation marks and
citation omitted]), neither the parties' arguments nor the video
discloses any such pedigree questions or responses following
defendant's valid invocation of his right to counsel at 3:41 a.m.
As for spontaneous declarations, it is established law that, even
after the right to counsel has attached, a defendant's statements
are not subject to suppression if they were "not the result of
inducement, provocation, encouragement or acquiescence, no matter
how subtly employed" (People v Maerling, 46 NY2d 289, 302-303
[1978]; accord People v Burns, 281 AD2d 704, 705 [2001], lvs
denied 96 NY2d 826, 831 [2001]). It is well established that the
police bear no obligation "to silence a chatterbox" (People v
                              -5-                106931

Taylor, 1 AD3d 623, 624 [2003], lv denied 1 NY3d 602 [2004]
[internal quotation marks, brackets and citation omitted]). "The
test is not whether defendant, through hindsight, claims that the
police intended to provoke an incriminating response; rather,
County Court, using an objective standard, must determine whether
defendant's statement can be said to have been triggered by
police conduct that should reasonably have been anticipated to
evoke a statement from defendant" (People v Payne, 233 AD2d 787,
788 [1996] [citation omitted]).

      With a few exceptions, the video reveals that defendant's
statements in the period preceding the reading of his Miranda
rights were made without any triggering words or conduct by the
police. As the officers played no role in soliciting them, these
statements constitute spontaneous declarations and should not
have been subject to suppression (see People v Wilhelm, 34 AD3d
40, 53 [2006]; People v Sturdivant, 277 AD2d 607, 607-608 [2000],
lv denied 95 NY2d 970 [2000]). However, at three points
following defendant's successful invocation of his right to
counsel, officers asked him questions that should reasonably have
been anticipated to elicit responses. The first such exchange
occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant
responded after an officer asked him what he thought would occur
as a result of refusing a chemical test. The second occurred
between 03:50:01 a.m. and 03:50:09 a.m., when defendant confirmed
his last drinking location in response to a question by one of
the officers. The third occurred between 04:01:05 a.m. and
04:06:23 a.m., when an officer asked defendant several questions
about chemical testing and the events of the evening.
Defendant's responses to these inquiries cannot be said to be
spontaneous. Thus, his statements during these three time
periods and the corresponding portions of the video were properly
suppressed.

      As to portions of the video in which defendant was not
speaking, evidence obtained from a defendant following invocation
of the right to counsel is subject to suppression where it
constitutes "a communicative act that disclose[s] the contents of
defendant's mind" (People v Gibson, 17 NY3d 757, 759 [2011]
[internal quotation marks and citation omitted]; see People v
Berg, 92 NY2d 701, 704 [1999]). Generally, a defendant's
                              -6-                106931

physical characteristics and appearance are not considered to be
communicative in nature (see Schmerber v California, 384 US 757,
763-764 [1966]; People v Havrish, 8 NY3d 389, 393 [2007], cert
denied 552 US 886 [2007]; People v Berg, 92 NY2d at 704). Here,
portions of the video in which defendant is silent show only his
physical condition and appearance and do not disclose any
communicative statements made after he had invoked his right to
counsel. Whether any of these video segments may ultimately be
deemed admissible at trial depends on other considerations not
presented here, but there is no basis for their suppression as
communicative statements (see e.g. People v Haskins, 121 AD3d
1181, 1183 [2014]; People v Raco, 168 AD2d 806, 807 [1990], lv
denied 77 NY2d 910 [1991]; compare People v Robles, 180 Misc 2d
512, 521 [Crim Ct, Bronx County 1999]; People v Anderson, 150
Misc 2d 339, 344 [Nassau Dist Ct 1991]).

      Finally, as to defendant's refusals to submit to chemical
tests, we note the legal distinction between admitting evidence
of the test refusals and admitting defendant's accompanying
statements and/or the video depictions of such statements. An
individual suspected of driving while intoxicated is allowed a
limited right to counsel for the purpose of deciding whether to
submit to a chemical test (see People v Smith, 18 NY3d 544, 549-
550 [2012]; People v Vinogradov, 294 AD2d 708, 709 [2002]). To
invoke this limited right, a suspect must make "a specific
request for an attorney vis-à-vis this decision" (People v
Curkendall, 12 AD3d 710, 715 [2004], lv denied 4 NY3d 743 [2004];
see People v Washington, 107 AD3d 4, 9 [2013], affd 23 NY3d 228
[2014]). When defendant requested counsel at 3:41 a.m., he had
been read two chemical test warnings and had refused to submit
both times. The third warning and refusal followed defendant's
request for counsel. Upon review, and considering both the
timing and the phrasing of defendant's request, it does not
appear that he was seeking advice relative to the testing, but,
instead, was asserting his right to counsel in a broad and
general manner.   As defendant's invocation of his right to
counsel lacked the requisite specificity, the fact that he
refused to submit to chemical testing on each occasion is
admissible (see People v Curkendall, 12 AD3d at 715; People v
Vinogradov, 294 AD2d at 709). However, this rule does not alter
the protections afforded by law relative to his statements or the
                              -7-                  106931

video depiction of same, as set forth above, after he invoked his
right to counsel.

     McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.



     ORDERED that the motion to strike is granted.

      ORDERED that the order is modified, on the law, by
reversing so much thereof as suppressed all statements made by
defendant during the booking process and as suppressed the entire
video of the booking process; suppress only those statements –
and the corresponding portions of the video – as reflected in
this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
