text:
    COMMONWEALTH v. John E. DUTCHER.
    14-P-261
    Appeals Court of Massachusetts.
    Entered: February 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in 1989, the defendant was convicted of aggravated rape, assault and battery, and aggravated burglary. These charges were based on evidence that the defendant broke into an apartment and raped its occupant (the victim). In May of 2013, after numerous unsuccessful appeals, the defendant filed his latest motion for new trial, which was denied by a Superior Court judge. The defendant challenges that denial, arguing that he was entitled to a new trial on multiple grounds: a police officer falsely testified before the grand jury, the Commonwealth failed to provide exculpatory evidence at trial, his trial counsel and appellate counsel were constitutionally ineffective, and the trial judge failed to provide the jury with instructions on fresh complaint testimony. Discerning no abuse of discretion or other error, we affirm.

As an initial matter, we note that some of the defendant's arguments were addressed by this court in our prior rulings, and the defendant is estopped from making them. See Dutcher, 32 Mass. App. Ct. 1108 (1992) (addressing the defendant's claim of ineffective assistance of trial counsel); Dutcher, 81 Mass. App. Ct. 1115 (2012) (noting, with respect to the alleged failure of the prosecution to turn over exculpatory evidence, that "[i]t remains unclear from the record whether the defendant received the results of any testing performed by the Commonwealth, including [deoxyribonucleic acid] testing"). See also Commonwealth v. Ellis, 475 Mass. 459, 475 (2016), quoting from Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005) ("[W]here a defendant 'raises no new factual or legal issue' in a motion [for new trial] and simply seeks to relitigate a motion that was previously denied by the motion judge and rejected on direct appeal, 'principles of direct estoppel operate as a bar to the defendant's attempt ... to relitigate issues' ").

Furthermore, to the extent that the issues the defendant now seeks to raise on appeal were not previously raised either at trial or in his multiple earlier motions and appeals, he has waived them. See Commonwealth v. Chase, 433 Mass. 293, 297 (2001) ("The defendant waived the issues he now raises [in his motion for new trial] by not presenting them in his direct appeal. A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal.... It is neither unreasonable nor unduly burdensome to require a defendant to advance his contentions, even those with constitutional ramifications, at the first opportune time").

In any event, the defendant failed to demonstrate that the issues he now seeks to raise create a substantial risk of a miscarriage of justice. In particular, the alleged inconsistency between the detective's testimony to the grand jury and his testimony at trial did not create such a risk, because any seeming conflict in such testimony is easy to reconcile. See Dutcher, 81 Mass. App. Ct. at 1115 (addressing issue of victim's and detective's testimony at trial). Likewise, the fact that the trial judge did not instruct the jury on the limits of fresh complaint testimony, did not create a substantial risk of a miscarriage of justice, because the victim's mother's testimony about the emotional reaction of her daughter immediately after the rape occurred was independently admissible as an excited utterance. Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). Finally, there is no merit to the defendant's argument that the appellate counsel who handled his direct appeal was constitutionally ineffective for allegedly advising him that "anything not objected to at trial was not appealable." Putting aside that this particular claim is unsupported even by an affidavit from the defendant, it fails because the defendant has not demonstrated how this would have deprived him of "a substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). As to the other arguments raised by the defendant on appeal, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Under these circumstances, we discern no abuse of discretion and no reason to disturb the order denying the defendant's motion for new trial. See Commonwealth v. Weichell, 446 Mass. 785, 799 (2006) (denial of motion for new trial reviewed only for "a significant error of law or other abuse of discretion") (quotation omitted).

Order denying motion for new trial affirmed.

      Prior to sentencing, the defendant was committed to the treatment center as a sexually dangerous person. Dutcher, 69 Mass. App. Ct. 1104 (2007).

      The current appeal is the fifth one stemming from these convictions. See Commonwealth v. Dutcher, 32 Mass. App. Ct. 1108 (1992) ; Commonwealth v. Dutcher, 69 Mass. App. Ct. 1104 ; Commonwealth v. Dutcher, 81 Mass. App. Ct. 1115 (2012) ; Commonwealth v. Dutcher, 90 Mass. App. Ct. 1115 (2016) (memoranda and orders issued pursuant to our rule 1:28).

      The detective testified before the grand jury that the victim did not pick out a photo of her assailant at the police station shortly after the crime. At trial, the detective acknowledged that the victim did state that a photo of a minor shown to her by the officer bore some resemblance to the defendant.

      That is, the defendant has not shown that there was an issue not raised at trial but on which he could have prevailed had he raised it in his direct appeal.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. C.J.R.
    16-P-1227
    Appeals Court of Massachusetts.
    Entered: February 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant-appellee was charged with disorderly conduct, G. L. c. 272, § 53 (count 1), assault, G. L. c. 265, § 13A(a ) (count 2), and witness intimidation, G. L. c. 268, § 13B (count 3). He waived his right to a jury trial and was tried before a judge of the Boston Municipal Court. After the Commonwealth presented its evidence, the defendant moved for a required finding of not guilty on all three counts. The judge denied the motion. The defendant presented no evidence and renewed his motion for a required finding as to all three counts, which was also denied. The judge found him not guilty of disorderly conduct and witness intimidation, but guilty of count 2, assault, and sentenced him to three months' unsupervised probation.

Nine days after the bench trial, the judge issued an order stating that, "[u]pon further reflection, it appears that the court may have erred in denying the defendant's Motion for Required Finding of Not Guilty on Count 2.... Accordingly, the parties are directed to mark this matter up for a hearing before the court." The defendant filed a "Motion to Renew Motion for Required Finding or in the Alternative Motion for New Trial," and the hearing was held.

The judge then issued written findings and rulings. He stated that he had "plainly" "mistakenly rendered a verdict against the weight of the evidence." This was because he found that the alleged victim lacked an "apprehension of an immediate battery," which apprehension the Commonwealth was required to prove beyond a reasonable doubt to sustain a conviction for assault under the threatened-battery theory it advanced in this case. See Commonwealth v. Porro, 458 Mass. 526, 531 (2010) (in threatened-battery assault, the victim "must apprehend the risk of an imminent battery"). He concluded, however, that he lacked authority to allow a renewed motion for a required finding of not guilty because the procedural vehicle for such a motion, Mass.R.Crim.P. 25(b)(2), on its face, applies only to jury trials. He stated for the record, however, that, if he had the authority, "the court would allow the defendant's request to enlarge the time for filing a motion pursuant to the rule," and "the court would find that its verdict on Count 2 'was against the weight of the evidence,' Commonwealth v. Preston, 383 Mass. 318, 324 (1984), and it would enter a finding of not guilty pursuant to the rule."

In light of his conclusion about his limited authority, the judge treated the motion as one for a new trial. Applying the Latimore standard, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the judge concluded that there was insufficient evidence to support a finding by any reasonable juror of guilt of assault, granted the defendant's motion for a new trial, and immediately entered a finding of not guilty. The Commonwealth appealed.

This case obviously presents an unusual circumstance. The judge was correct that rule 25(b)(2) applies only to jury verdicts. That rule was adopted in 1979, when the Supreme Judicial Court promulgated the Rules of Criminal Procedure. See 378 Mass. 842, 896 (1979). Rule 25(b)(2) is substantively identical to the last paragraph of G. L. c. 278, § 11, as amended by St. 1964, c. 108, § 2, except that it also grants trial courts the power to reduce the verdict to a lesser included offense. Both the rule and the statute apply only to trial by jury: "If the motion is denied and the case is submitted to the jury, the motion [for a required finding of not guilty] may be renewed within five days after the jury is discharged" (emphasis supplied). Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The Reporter's Notes accompanying the rule, however, explains that "[m]otion[s] for findings of not guilty are a part of Massachusetts practice in the context of nonjury cases and are extended by this rule to include jury trials in recognition of the fact that juries have no proper function in this area." Reporter's Notes to Mass.R.Crim.P. 25, 47 Mass. Gen. Laws Ann. at 691-692 (West 2006) (citation omitted).

Though applicable to jury trials, the rule thus did not purport to have any effect on proceedings with respect to bench trials. The Commonwealth points to nothing in the Rules of Criminal Procedure that prohibits a defendant after a bench trial from asking the judge to reconsider the denial of a prior motion for a required finding, at least if the motion is brought before the time for filing an appeal has expired. The record in this case, then, fails to reveal any reason reconsideration of such a motion would be barred, and we treat the defendant's motion as one for reconsideration of the denial of his motion for a required finding of not guilty.

The standard for determining whether a judgment of not guilty should enter when one is sought under rule 25(b)(2) by way of a renewed motion for a required finding following a jury trial is of course the Latimore sufficiency of the evidence standard. See, e.g., Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) ; Commonwealth v. Torres, 24 Mass. App. Ct. 317, 324 (1987). "In using that standard the judge cannot weigh the evidence." Commonwealth v. Walker, 68 Mass. App. Ct. 194, 197-198 (2007) (judge may weigh the evidence when deciding on a rule 25 [b][2] motion for a new trial or to reduce the verdict to a lesser included offense). This is because a judge's independent weighing of the evidence "would allow [the] judge to invade the province of the jury as the sole finder of fact in a jury trial." Torres, supra.

In the unusual, perhaps unique, circumstance of this case, though, where the same judge who heard the renewed motion was the finder of fact at trial, any similar concern is absent. Having himself heard all the evidence at trial, and having found as a fact that one of the elements of the offense was absent, we think, unless that finding was clearly erroneous, he could properly have allowed the motion on the ground that the guilty finding was against the weight of the evidence, and on that basis, have ordered entry of a finding of not guilty, as he indicated would have been his preference. The underlying purpose after all of allowing all postverdict motions, such as the instant one, is to ensure that convictions are consonant with justice. As the Supreme Judicial Court has said in the related context of the judge's power under rule 25(b)(2) to order a reduction in the verdict after a jury trial, even "despite the presence of sufficient evidence to support the jury verdict," "a trial judge's decision on a rule 25(b)(2) motion should be guided by the same considerations"-"ensur[ing] that the result in every criminal case is consonant with justice"-as the Supreme Judicial Court's review of first degree murder cases under G. L. c. 278, § 33E. Commonwealth v. Almeida, 452 Mass. 601, 613 (2008) (quotations omitted).

As the judge's factual finding was not clearly erroneous, the order may be affirmed on this basis. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate court may affirm on different grounds from the trial court "if the correct or preferred basis for affirmance is supported by the record and the findings"). We therefore need not and do not reach the question of the sufficiency of the evidence. The order allowing the defendant's motion and ordering the entry of a finding of not guilty on count 2 (assault) is affirmed.

So ordered.

Affirmed.


text:
    COMMONWEALTH v. Jorge QUINTANILLA.
    16-P-1556
    Appeals Court of Massachusetts.
    Entered: February 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Jorge Quintanilla, was convicted, following a jury trial, of three counts each of rape, statutory rape, and assault and battery by means of a dangerous weapon, and one count of assault and battery. On appeal, he argues that the motion judge abused her discretion in denying his motion for new trial. We affirm.

Background. We summarize the facts as the jury reasonably could have found them. The victim was born in El Salvador on March 25, 1990, and immigrated to the United States in 2003. Shortly thereafter, she met the defendant at a nightclub. She was still thirteen years old when he raped her in her half-sister's home, where she was then living. Her half-sister arrived home and found the defendant with the victim. Thereafter, members of the victim's and the defendant's families assembled and decided that she would move to the defendant's family home to live with the defendant.

Over the next four years, the victim was a virtual prisoner in the defendant's home. The defendant raped her vaginally, anally, and orally on a weekly basis and beat her regularly. She was allowed to leave the house to do chores or run errands for the defendant, but only with permission. She would regularly be given permission to go to the laundromat, grocery store, and liquor store, and to walk the family dog in a park next to the home. She also attended parties, particularly to watch the defendant and his band play.

The defense at trial was that the victim had fabricated the allegations and that the police did not thoroughly investigate the victim's allegations, choosing instead to simply credit her. In furtherance of that strategy, trial counsel elicited testimony showing that the victim's allegations had evolved over time from allegations of physical abuse to allegations of sexual abuse to gang rape and witchcraft. Trial counsel elicited testimony from Officer Michael Mulcahy, the lead police investigator, that the victim first reported only that the defendant physically abused her and only sought an abuse prevention order, which was admitted in evidence. Mulcahy confirmed that the victim did not suggest sexual abuse until almost five months later, in connection with her Sexual Assault Investigative Network (SAIN) interview where she first described the sexual abuse and further alleged that the defendant and his mother were involved in witchcraft. The SAIN interview was admitted into evidence. Trial counsel confirmed with the trial judge that admitting the SAIN interview was part of his strategy.

To support his theory that the police investigation was lackluster, trial counsel had Mulcahy confirm that, in his initial police report, he included the statement that the defendant was a "known admitted [gang] member," which was information provided by the victim and not independently confirmed through an investigation by him or his fellow officers. The report was admitted. Mulcahy also confirmed that the victim was the sole source of information about her date of birth. As trial counsel cross-examined Officer Mulcahy regarding the police report, the trial judge warned him that he was "open[ing] the door," and that the Commonwealth would be allowed to "kick it open," to which he replied, "I understand."

Trial counsel also permitted the victim to testify to the witchcraft allegations ostensibly to demonstrate the incredulous nature of her allegations. Similarly, he allowed the victim to testify that the defendant's mother injected her with birth control from El Salvador, and that the injections once caused her to lose consciousness; when she woke up she was naked with a man on top of her and surrounded by nude men who were exchanging money with the defendant. Trial counsel's approach to Elida Flores, the first complaint witness, and Beatrice Morales, who helped take the victim to a women's shelter after she escaped from the defendant's home, was similar. He elicited hearsay testimony concerning the victim's allegations from an initial claim of physical abuse alone to later allegations of sexual assaults by the defendant, allegations against the defendant's mother and brother, and gang rape. When asked by the trial judge whether he was making a "tactical, strategic decision ... with [his] client's consent," trial counsel responded, "[a]bsolutely."

The defendant's mother informed trial counsel that certain family members could provide testimony contradicting parts of the victim's testimony. Explaining to the trial judge that he was on a "short leash," trial counsel stated that he would make a "very last minute decision to decide whether or not we could at least try to put these people in." Ultimately, he declined to present any defense witnesses.

After the defendant was convicted, he filed a motion for new trial in which he argued that his trial counsel was ineffective because (1) he elicited and permitted the admission of highly prejudicial hearsay evidence from Mulcahy, Flores, and Morales; (2) he failed to introduce typewritten pharmacy records on which the victim's birth year is stated to be 1987-three years earlier than the date to which she testified; and (3) he failed to introduce witnesses who would have testified that the victim was not a prisoner in the family home and appeared happy in her relationship with the defendant. The motion was denied without a hearing. The defendant appealed, and a panel of this court vacated the order denying the motion for new trial and remanded the matter for a hearing. Commonwealth v. Quintanilla, 84 Mass. App. Ct. 1113 (2013).

After remand, the trial judge held a four-day evidentiary hearing, and the defendant called several witnesses in support of his motion. The witnesses were primarily friends, family, and acquaintances of both the defendant and the victim. In sum, the witnesses testified that the victim was treated like a member of the family, was free to leave the home as she pleased, and appeared to be happy in her relationship with the defendant. Each witness also stated that they had not been contacted by trial counsel and would have been willing to testify if asked. The defendant's mother did not testify.

The defendant called a training director at the Committee for Public Counsel Services (CPCS), who opined that trial counsel's performance was ineffective because he elicited prejudicial testimony from Mulcahy, allowed admission of the SAIN interview, and failed to personally interview witnesses who could have contradicted some of the victim's testimony about her relationship with the defendant and his family. She acknowledged, however, that his strategy of eliciting inconsistent statements and exposing the victim's evolving narrative in an effort to undermine her credibility was not unreasonable.

The motion judge, in a thorough and well-reasoned decision, denied the defendant's motion. She found that the cumulative effect of trial counsel's alleged errors fell below the conduct of the ordinary fallible attorney. However, she concluded that the defendant was not prejudiced. This appeal followed.

Discussion. We review the motion judge's ruling for abuse of discretion. Commonwealth v. Cameron, 473 Mass. 100, 104 (2015). Because the motion judge presided at trial, she was in the best position to assess the trial record and the credibility of the witnesses at the motion hearing; thus, we grant her decision "special deference." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Furthermore, where, as here, the defendant does not submit an affidavit from trial counsel, the defendant's challenge is in its "weakest form." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). The defendant's claim of ineffective assistance of counsel is reviewed by applying the familiar two-part test: (1) whether the defendant has demonstrated "serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and (2) if so, whether counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

1. Ordinary fallible lawyer. We begin our analysis under the first prong of the Saferian test with trial counsel's decision to elicit otherwise prejudicial and inadmissible testimony. Trial counsel repeatedly confirmed to the trial judge that the decision to elicit and allow admission of this testimony was deliberate and pursuant to his two-fold strategic plan to illustrate that: (1) the victim's testimony was not credible because her story had evolved over time and was incredulous, and (2) the police investigation was incomplete and thus could not be trusted. For example, during a sidebar discussion, trial counsel confirmed to the trial judge that allowing the victim to testify to uncharged conduct was "both a tactical and strategic decision," to which the judge responded, "I've seen enough communication between you and your client that I'm accepting that he's engaged in the process." Trial counsel confirmed, "[h]e certainly is." In executing this strategy, trial counsel elicited hearsay testimony from Mulcahy, Flores, and Morales regarding what the victim had disclosed to them, over time, about her abuse. Taken together, this evidence established that the victim's story evolved from the defendant's physical abuse alone to daily sexual abuse.

Trial counsel allowed the victim to testify to conduct from which no charges were brought, including gang rape, rape by the defendant's brother, witchcraft, and that the defendant's mother drugged her. He confirmed that his decision to permit admission of this evidence was deliberate and tactical. Indeed, while the defendant's expert witness disagreed with particular tactical decisions, she concluded that his general strategy was not unreasonable. See Commonwealth v. Scott, 428 Mass. 362, 369 n.8 (1998) ("Counsel need not be perfect; he must only be effective in presenting the defendant's case"). Notably, the defendant's challenge is in its "weakest form" because trial counsel did not submit an affidavit; all the record shows is that the decisions were made strategically. Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Accordingly, the judge did not abuse her discretion in finding that this strategy was not "manifestly unreasonable." Commonwealth v. Finstein, 426 Mass. 200, 203 (1997). See Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 108 (1999) (explaining that where "challenged conduct reflects the arguably reasoned tactical or strategic judgments of a lawyer ... [it is] virtually unchallengeable" [citation and quotations omitted] ).

With regard to the typewritten pharmacy records, although the defendant's affidavit states that his mother gave them to trial counsel, the motion judge found that trial counsel did not have them based on trial counsel's statement, during the trial, that all he had were handwritten medical records, which did not contradict the victim's age. See Commonwealth v. Walker, 443 Mass. 213, 224 (2005) ("A judge's findings of fact after an evidentiary hearing on a motion for a new trial will be accepted if supported by the record"). Having discovered the handwritten medical records after his investigation, trial counsel was entitled to make a strategic choice that a defense based on medical records "was unlikely to succeed and that further investigation was unnecessary." Commonwealth v. Kolenovic, 471 Mass. 664, 675 (2015) (declining to find counsel ineffective even where his "strategic choices did not yield an outcome favorable to the defendant and, in hindsight, he could have done more or made different choices").

More troubling is trial counsel's reliance on the defendant's mother in connection with his investigation as to whether to call any witnesses. Where the defendant's defense depended on undermining the credibility of the victim, it was manifestly unreasonable for trial counsel to rely entirely on the defendant's mother to determine whether to call any of these witnesses. Trial counsel did not reach out personally to any of them. Under the circumstances, trial counsel's investigation fell short of that of the ordinarily fallible lawyer. See Commonwealth v. Alcide, 472 Mass. 150, 160-161 (2015) (counsel ineffective for failing to interview witnesses who had information relevant to a third-party defense). Accordingly, we agree with the motion judge that the defendant has made a sufficient showing under the first prong of the Saferian test.

2. Substantial ground of defense. Turning to the second prong of the Saferian test, we agree with the motion judge that despite trial counsel's failings, the defendant was not deprived thereby of a substantial ground of defense. The witnesses presented at the evidentiary hearing testified that the victim went to the park, ran errands, and attended family parties-information that the victim herself confirmed during the trial. See Commonwealth v. Sarmanian, 426 Mass. 405, 407 (1998) (counsel not ineffective for failing to call additional witnesses to support the defendant's intoxication defense because it was cumulative of intoxication evidence presented at trial). The noncumulative testimony was that the victim was treated well by the defendant's family. At most, this testimony would have served to impeach, which is "not ordinarily the basis of a new trial." Commonwealth v. Almeida, 452 Mass. 601, 616 (2008). Importantly, none rebutted the victim's allegations of physical and sexual abuse, much of which occurred when she was less than sixteen years old.

Order denying motion for new trial affirmed.

      She had previously spent several months in the United States, but returned to El Salvador.

      The defendant subsequently told the victim that her father sold her for $100 and instructed the defendant to beat her.

      The defendant beat her if she left the home without permission.

      The defendant's family kept her under surveillance, using a video camera in the living room to monitor her movements.

      The trial judge also gave a curative instruction regarding the gang rape allegations, explaining that the jury could not consider that testimony as evidence of the defendant's bad character or as proof that he committed the charged crimes.

      Five of the witnesses, however, stated that they were in touch with the defendant's mother who was the family's principal point of contact with trial counsel.

      Where, as here, appellate counsel has filed an affidavit attesting to trial counsel's lack of cooperation on appeal, "the lack of an affidavit cannot be a talisman that, by itself, defeats a claim of ineffective assistance of counsel." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014). In this case, however, the omission is particularly notable because trial counsel repeatedly confirmed to the trial judge that the decisions, now complained of by the defendant, were tactical ones.

      He specifically confirmed that eliciting this hearsay was strategic.

      Trial counsel admitted that his failure to object to hearsay testimony from Flores regarding the defendant's mother's video surveillance was not strategic; however, this mistake is not sufficient to warrant a conclusion that trial counsel's conduct fell below that of the ordinary fallible attorney. Commonwealth v. Marrero, 459 Mass. 235, 246 (2011) (a defendant is not entitled to counsel free of errors).

      While some witnesses testified that they thought the victim was older, none could state so definitely.


text:
    COMMONWEALTH v. Michael J. LEBERT.
    16-P-887
    Appeals Court of Massachusetts.
    Entered: February 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant, Michael J. Lebert, of armed assault with intent to murder and assault and battery by means of a dangerous weapon. On appeal, the defendant argues that the Commonwealth engaged in improper closing argument and that the trial judge erred in denying his motions for a required finding of not guilty. We affirm.

1. Closing argument. The defendant challenges several statements in the Commonwealth's closing argument. Where the objections were preserved at trial, we review each statement for prejudicial error and consider each in light of the entire argument, instructions, and evidence. See Commonwealth v. Tu Trinh, 458 Mass. 776, 785 (2011). In determining whether the cumulative effect of the alleged errors requires a new trial, we consider "(1) whether the defendant seasonably objected; (2) the judge's instructions to the jury; (3) the centrality of the error; (4) the jury's ability to sort out excessive claims by the Commonwealth; and (5) the strength of the Commonwealth's case." Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004).

First, the defendant asserts that the prosecutor improperly argued facts not in evidence when arguing that the defendant had "plenty of time" to travel from a counseling appointment to the location of the incident and that "it wasn't like he had to walk there" because he had a driver's license.

"Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence." Commonwealth v. Coren, 437 Mass. 723, 730 (2002). "A prosecutor may, however, in closing argument, analyze the evidence and suggest what reasonable inference the jury should draw from that evidence." Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992). The inference "need not be necessary and inescapable, only reasonable and possible." Commonwealth v. Jones, 432 Mass. 623, 628 (2000).

In September, 2012, the victim was attacked while working at the Dugout Café and Pizza Shop in Chicopee (Dugout Café). At trial, the victim testified that she called 911 at 10:39 A.M. The Commonwealth also offered evidence through an officer that the defendant had a driver's license. The defendant later elicited testimony that he was scheduled for a 9:30 A.M. counseling session in Holyoke, and that he was billed for one session lasting forty-five minutes to one hour. No evidence was entered as to the distance between the counseling center and the Dugout Café.

The prosecutor's statement that the defendant was able to travel to the Dugout Café after the appointment in time to commit the attack was a reasonable inference. The evidence suggested that the appointment could have ended after forty-five minutes. The Commonwealth did not need to prove how the defendant traveled to the Dugout Café, but was warranted in suggesting that there are means to travel other than walking. Additionally, although there was no evidence of the precise distance between the two locations, the addresses of both locations were offered at trial and the jury would be warranted in using their general knowledge of the area. See Commonwealth v. Kingsbury, 378 Mass. 751, 753 (1979) ("Jurors are entitled to rely on their general knowledge of matters commonly known within the community"). The statement was therefore not improper.

Second, the defendant contends that the prosecutor misstated facts when arguing that there were "at least three" DNA sources on a hatchet recovered at the scene. In her closing argument, the prosecutor stated that "there is no scientific evidence linking this defendant to the scene or to [the victim], but there is nothing excluding him either." She continued that, "according to the experts, there [are] at least three sources of DNA [on the hatchet]. Does that help us? Not really. But it is what it is. Again, it doesn't include the defendant but it doesn't exclude the defendant." The Commonwealth concedes that the claim of at least three sources of DNA was erroneous. Nonetheless, the Commonwealth argues that it was not prejudicial. We agree.

In context, the Commonwealth's closing expressly stated that there was no scientific DNA evidence that linked the defendant to the crime. Moreover, both the Commonwealth's expert and the defendant's expert acknowledged there could have been a third DNA source. The fact that the judge, rather than the defendant, raised the issue also indicates that the argument was not harmful given the entire closing argument. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). In addition, after a sidebar discussion with counsel, the trial judge instructed the jury that, "if there is an argument that the evidence does not exclude the defendant, that is not an argument that you can consider." At the defendant's further request, the judge supplemented that the jury's memory of the evidence controls and that they were not to draw inferences based on conjecture or speculation. The defendant was satisfied with the instruction. Under these circumstances, the misstatement was not prejudicial.

Third, the defendant contends that the Commonwealth shifted the burden when arguing that there was no scientific evidence excluding the defendant from the scene, hatchet, or victim. "Generally, a prosecutor 'cannot make statements that shift the burden of proof from the Commonwealth to the defendant.' " Commonwealth v. Cassidy, 470 Mass. 201, 226 (2014), quoting from Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). "A prosecutor, however, 'is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case.' " Cassidy, supra, quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).

In context of the entire trial, the statement was not an improper shift of the burden of proof. The prosecutor's statement was a response to defense counsel's closing argument, where defense counsel argued that DNA evidence on the hatchet excluded the defendant and that the Commonwealth failed to examine potential DNA profiles on other physical evidence. The prosecutor's response was that there was no scientific evidence linking or excluding the defendant to the scene or to the victim, but that "it wasn't for lack of trying." She then reviewed the efforts taken in the investigation, responding to defense counsel's arguments about other unexamined sources of DNA. Furthermore, the judge instructed the jury that the burden never shifted to the defendant and that they were to ignore arguments that the evidence did not exclude the defendant. There was no improper burden shifting and the specific instructions by the trial judge cured any concern. See Cassidy, supra at 225-226 (no burden shifting where prosecutor argued that "[t]here's not one shred of credible evidence [that] [a proposed third party culprit] was involved in anything.... That is a smoke screen and a diversion, which is what [the defendant] is all about. There is no evidence").

Even considering the asserted errors in the prosecutor's closing collectively, given the strength of the victim's testimony and the jury instructions, there was no error warranting reversal.

2. Denial of motions for required finding of not guilty. The defendant moved for a required finding of not guilty at the close of the Commonwealth's case, and renewed his motion at the close of all the evidence. The defendant contends that the judge erred in denying each and argues that there was insufficient evidence that the defendant was the assailant.

We review each conviction under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), determining whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

a. Commonwealth's case-in-chief. At trial, the victim identified the defendant as the assailant. She testified that she was working at the Dugout Café in September, 2012, when the defendant entered. He asked if it was always "this dead in here," to which the victim responded that it was "this time of the day." He asked to use the men's room. The victim then testified that the "[n]ext thing I knew I was laying on the ground," and that someone had hit her. When she looked up, she saw the defendant holding a hatchet, and observed him for a "[c]ouple of minutes." She testified that she then stood up, grabbed the handle of the hatchet and a bottle from the bar, and began to fight back. During the altercation, the victim was "about arm's length" from the defendant. When she called emergency personnel, she described the assailant as a five feet, eight inch or five feet, nine inch white male wearing a gray hooded sweatshirt, whom she had seen before.

An officer estimated that, over the course of the investigation, he showed the victim between 150 and 200 photographs to identify the assailant. The victim selected the defendant from an array of eight photographs, and indicated that she was "100 [percent] sure that this is the man that assaulted me." Additionally, upon seeing the defendant's photograph, the victim exhibited a physical reaction; an officer testified that the victim "immediately said '[t]hat's him,' " that she "started shaking and her legs actually physically gave out," and that she cried hysterically. In its totality, the Commonwealth provided ample evidence for the jury to conclude that the defendant was the assailant.

b. Deterioration of the Commonwealth's case. The defendant further argues that the Commonwealth's case deteriorated after the Commonwealth rested, requiring findings of not guilty on each charge. Specifically, the defendant argues that the case deteriorated after he produced evidence of an alibi and after his expert opinioned that the defendant did not match the DNA profiles on the hatchet.

As the jury were entitled to reject the defendant's expert's testimony in its entirety, the Commonwealth's case did not deteriorate based on this witness. See Commonwealth v. Platt, 440 Mass. 396, 404 (2003).

The defendant also presented evidence that he was in Holyoke for a counseling appointment that began at 9:30 A.M. and lasted forty-five minutes to one hour. The victim called 911 at 10:39 A.M. The fact that the defendant was at an appointment earlier that morning does not foreclose a finding of guilt beyond a reasonable doubt.

Judgments affirmed.

      The Commonwealth conceded at oral argument that one cannot infer that a person has access to a vehicle simply because they have a driver's license.

      The panel did not rely on the Commonwealth's record appendix page fifteen, a map outside of the record, setting forth the distance between the counseling center and Dugout Café. Thus we need not rule on the defendant's motion to strike the map.

      The Commonwealth's expert testified that there were "at least two" potential DNA sources and "an indication of a third person." One DNA profile matched the victim and the second yielded inconclusive results. The defendant's expert also testified that there were two profiles but opined that the defendant did not contribute to the second profile. He testified that there could be other DNA on the hatchet, but that there was no reliable indication of a third DNA profile.

      The defendant urges the court to consider the Supreme Judicial Court's holding in Commonwealth v. Gomes, 470 Mass. 352 (2015), which considers the limitations of eyewitness identifications. The decision does not apply retroactively. Id. at 376.


text:
    COMMONWEALTH v. Benjamin R. THEISEN.
    16-P-1429
    Appeals Court of Massachusetts.
    Entered: February 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of drugs, in violation of G. L. c. 90, § 24(1)(a )(1), and negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24(2)(a ). On appeal, the defendant challenges the sufficiency of the evidence and the admission of the results of a toxicology test that showed the presence of barbiturates, benzodiazepines, and cannabinoids in his urine.

Background. We summarize the facts the jury could have found in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In the early afternoon on December 13, 2014, the defendant was found unconscious in the driver's seat of a car on Clifford Road in the town of Plymouth. Clifford Road is a narrow, winding two-lane residential road; the lanes of travel are separated by two solid yellow lines. The car, which was mostly off the pavement and resting at an incline on an embankment on the side of the road, was facing opposite the direction of traffic and its engine was running. Plymouth police Officer Dana Goodwin was dispatched to the scene in response to a 911 call placed by a passing motorist. A second officer, Plymouth police Officer Dennis Ward, and additional emergency personnel arrived immediately after Goodwin. The officers observed that the defendant was turning blue, he had "frothy mucous around his nose and mouth," his eyes appeared to be "rolled back into his head," and his breathing was labored. The car doors were locked, forcing Goodwin to break the windows to enter the car. The officers observed a spoon with black burn marks laying on the open lid of the glove box and an empty, uncapped "needle syringe" on the front passenger seat. These items indicated the use of heroin and other illegal drugs.

The defendant was removed from the car and transported to a hospital, where he was given two doses of Narcan and regained consciousness five minutes later. At the hospital, the defendant reported that he had taken four Xanax and had injected heroin prior to passing out. The examining physician ordered a toxicology test of the defendant's urine, which showed the presence of barbiturates, benzodiazepines, and cannabinoids, but the absence of opiates. Those test results were included in the defendant's medical records, which were admitted over objection and without testimony.

Discussion. 1. Sufficiency of the evidence. Although the defendant had admitted to ingesting heroin and Xanax, the Commonwealth did not present any evidence that either substance is classified as a drug under G. L. c. 94C, § 1. See Commonwealth v Green, 408 Mass. 48, 49 (1990) (Commonwealth failed to present evidence that codeine was a narcotic drug under G. L. c. 94C, § 1 ); Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 922-923 (1998) (Commonwealth failed to present evidence that heroin was a narcotic drug under G. L. c. 94C, § 1 ). Therefore, there was insufficient evidence to demonstrate that the defendant was operating a motor vehicle under the influence of drugs. As the Commonwealth appropriately concedes, the defendant's motion for a required finding of not guilty on this count should have been allowed.

We reach a different conclusion with respect to the defendant's remaining conviction, because there was sufficient evidence that the defendant negligently operated a motor vehicle. To sustain a conviction of negligent operation, the Commonwealth must prove that the defendant operated a motor vehicle negligently on a public way so as to endanger the lives or safety of the public. See G. L. c. 90, § 24(2)(a ). The statute requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did. Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004). The defendant does not dispute that he operated a motor vehicle on a public way. He argues that the absence of any direct evidence of the circumstances preceding the discovery of his car on the side of the road precluded a rational trier of fact from concluding that his conduct might have endangered public safety. We disagree.

It was both reasonable and permissible for the jury to infer that the defendant operated his motor vehicle in a negligent manner from the evidence that the accident occurred in the middle of the day with no apparent cause other than the fact that the defendant lost consciousness after consuming heroin and Xanax. Whether the defendant passed out before or after the car stopped is of no consequence given the undisputed evidence that, at some point, the defendant drove the car over the two solid yellow lines and through the lane of oncoming traffic, and then stopped on the wrong side of the road facing opposite the direction of traffic. Nor is it significant, as the defendant suggests, that no one testified to having observed the defendant drive negligently. See Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005) ("a person may operate a vehicle in such a way that would endanger the public although no other person is on the street").

2. Admission of laboratory test results. Relying on our decision in Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70 (2005), the defendant argues that his negligent operation conviction must be reversed because the admission of the results of the toxicology test without concentration levels or expert testimony resulted in prejudicial error. Assuming without deciding that the test results were admitted erroneously, reversal of the negligent operation conviction is not warranted where, as here, we can say with "fair assurance" that the error "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). See Commonwealth v. Carriere, 470 Mass. 1, 7-8 (2014). Ample properly admitted evidence permitted an inference that the defendant consumed drugs before or while he was operating the car. As such, it is doubtful that the results of the toxicology test had any effect on the jury's deliberations. See Commonwealth v. Constantino, 443 Mass. 521, 526 (2005) (under G. L. c. 90, § 24 [2][a ], "it is the operation of the vehicle itself that is the crime"). See also Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 344 (2005) (admission of facially unreliable toxicology report did not require reversal in light of other evidence demonstrating alcohol intoxication).

Conclusion. The judgment on the count of operating a motor vehicle while under the influence of drugs is reversed, the verdict is set aside, and judgment shall enter for the defendant. The remaining judgment is affirmed.

So ordered.

Reversed in part; affirmed in part.

      The defendant was found not responsible for a marked lanes violation.

      This evidence included the defendant's admission that he had consumed heroin and Xanax, his condition at the time of the incident (unconscious, frothy mucous around his mouth and nose, and eyes "rolled back"), the presence in the car of items (spoon and empty needle syringe) indicating the use of heroin, and the administration of, and the defendant's positive response to, Narcan.


author: STEIN, J. WILSON, J. (concurring). DiFIORE, Chief Judge (dissenting).

text:
    The PEOPLE of the State of New York, Appellant, v. Donald ODUM, Respondent.
    No. 46
    Court of Appeals of New York.
    Decided May 3, 2018
    Darcel D. Clark, District Attorney, Bronx (Stanley R. Kaplan and Nancy D. Killian of counsel), for appellant.
    The Bronx Defenders, Bronx (V. Marika Meis of counsel), for respondent.
    OPINION OF THE COURT
   STEIN, J.

Vehicle and Traffic Law §§ 1194 and 1195 generally govern the administration and admissibility of chemical breath tests used to determine blood alcohol content. Section 1195(1) provides that the results of such tests are admissible in evidence at a criminal trial if the tests are "administered pursuant to the provisions of section [1194]." The results of a test also may be admissible absent compliance with section 1194 where a defendant has voluntarily consented to the test because section "1194 ... ha[s] no application where the defendant expressly and voluntarily consented to a [chemical] test" ( People v. Atkins, 85 N.Y.2d 1007, 1008, 630 N.Y.S.2d 965, 654 N.E.2d 1213 [1995] ). Here, because the breathalyzer test was not administered in accordance with the requirements of section 1194 and defendant's consent to take the test was not voluntary, as required by Atkins, the results of the test were properly suppressed. I.

In 2014, defendant was arrested on various charges, including operating a motor vehicle while under the influence of alcohol. More than two hours after his arrest, he was informed that police wanted him to take a breathalyzer test and was asked whether he would "take this test? Yes or no?" After defendant answered "No," he was given the "refusal warnings" set forth in Vehicle and Traffic Law § 1194 -namely, he was warned that, if he refused "to submit to the test," the result would be "the immediate suspension or subsequent revocation of [his] driver's license or operating privileges whether or not [he was] found guilty of the charges for which [he had] been arrested." In addition, he was warned-inaccurately-that if he "refuse[d] to submit to the test or any portion thereof, it w[ould] be introduced as evidence against [him] in any trial proceeding resulting from the arrest." Defendant then agreed to take the test and provided a breath sample, which showed that his blood alcohol level was above the legal limit.

Defendant subsequently moved to suppress the videotaped recording of the administration of the breathalyzer test, the test results, and all statements that he made to the arresting officer, including his initial refusal to take the test. Defendant asserted that, pursuant to Vehicle and Traffic Law § 1194, because more than two hours had passed between the time of his arrest and the request that he take the breathalyzer test, the officer administering the test should not have advised him that, if he refused to take it, his driver's license would be suspended and the refusal could be used against him in court. Defendant maintained that the refusal warnings were inappropriate after two hours, and rendered his consent to the test involuntary. Criminal Court, adopting a Judicial Hearing Officer's decision, granted the motion to suppress both defendant's initial refusal to take the test and the test results. The court ruled that, "[i]n light of the uncontradicted evidence that the refusal occurred more than two hours after arrest, suppression of the refusal is warranted." The court further concluded that the breathalyzer test results should have been suppressed because "the warnings given by the police were coercive."

The People moved to reargue, asserting that, although the refusal "warnings were most certainly designed to induce submission to the test [and][i]t is undisputed that they do threaten the operator-accused with adverse consequences [for refusal] to consent," the warnings do not render a driver's consent involuntary because they merely inform the driver of the privilege that may be lost due to refusal, and that the refusal can be used against the driver in any subsequent legal proceedings. Criminal Court denied the motion to reargue, concluding that under Atkins, "where the chemical test is administered more than two hours after an arrest, admissibility of the results requires that the People show that consent was express and voluntary." The court then held that the People failed to meet their burden of demonstrating that defendant's consent was "voluntary and not the result of coercive conduct by the officer" because defendant consented "only after [the officer] gave the improper warnings."

Upon the People's appeal, the Appellate Term, First Department affirmed, holding that Criminal Court "properly suppressed the breathalyzer test results" because defendant's consent, given in response to "inappropriate warnings," was involuntary. ( 54 Misc 3d 128[A], 2016 NY Slip Op 51806[U], *1, 2016 WL 7434671 [App Term, 1st Dept 2016] ). A Judge of this Court thereafter granted the People leave to appeal ( 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). II.

In order to combat driving while intoxicated, which we have long recognized as a "menace" ( People v. Ward, 307 N.Y. 73, 77, 120 N.E.2d 211 [1954] ), "law enforcement agencies have been granted statutory authority (see Vehicle and Traffic Law § 1194 ) to use an important investigative tool-chemical tests to determine blood alcohol content" ( People v. Washington, 23 N.Y.3d 228, 231, 989 N.Y.S.2d 670, 12 N.E.3d 1099 [2014] ). As relevant here, Vehicle and Traffic Law § 1194(2)(a)(1) -the "deemed consent provision"-states:

"Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test... for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer ...
having reasonable grounds to believe such person to have been operating in violation of any subdivision of section [1192] of this article and within two hours after such person has been placed under arrest for any such violation" (emphasis added).

Section 1194(2)(b)(1) provides that the test shall not be given if a person who is under arrest and who has "been informed that the person's license ... shall be immediately suspended and subsequently revoked, ... whether or not the person is found guilty of the charge for which such person is arrested or detained," nevertheless "refuses to submit to such chemical test." "Evidence of a refusal to submit to such chemical test ... shall be admissible" at trial, "upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" (id. § 1194[2][f] ).

This Court has explained that "[s]ection 1194 'grants a motorist a qualified right to decline to voluntarily take a chemical test' after being warned that a refusal 'will result in the immediate suspension and ultimate revocation of the motorist's driver's license for one year,' along with evidence of the refusal being admissible at any subsequent criminal trial" ( Washington, 23 N.Y.3d at 231, 989 N.Y.S.2d 670, 12 N.E.3d 1099, quoting People v. Smith, 18 N.Y.3d 544, 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ). The statute "is designed to encourage those suspected of alcohol-related driving offenses to comply with requests to submit to chemical tests in order to obviate the need for securing court orders authorizing blood tests" ( Washington, 23 N.Y.3d at 231, 989 N.Y.S.2d 670, 12 N.E.3d 1099 ; see also Sponsor's Mem, Bill Jacket, L 1968, ch 85), or " 'the need for the use of force by police officers if an individual in a drunken condition should refuse to submit to the test' " ( People v. Kates, 53 N.Y.2d 591, 596, 444 N.Y.S.2d 446, 428 N.E.2d 852 [1981], quoting Interim Rep of N.Y. St Joint Legis Comm on Motor Veh Problems, 1953 N.Y. Legis Doc No. 25 at 35). In that regard, we have repeatedly stated that "there is no constitutional right to avoid submitting to a chemical test of this nature" ( Smith, 18 N.Y.3d at 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 ;

Kates, 53 N.Y.2d at 594-595, 444 N.Y.S.2d 446, 428 N.E.2d 852 ; People v. Thomas, 46 N.Y.2d 100, 109, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 [1979] ; see also Birchfield v. North Dakota, 579 U.S. ----, 136 S.Ct. 2160, 2184, 195 L.Ed.2d 560 [2016] ["the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving"] ).

At the same time, however, nothing prevents the Legislature from granting accused motorists a statutory right to decline the test or from placing limits on the authority of the police to administer the test absent voluntary consent-and that is precisely what the legislature has done. Specifically, while the statute is designed to compel compliance, it also sets express limits on police authority to perform the breathalyzer test when, due to the absence of express and voluntary consent (see Atkins, 85 N.Y.2d at 1008, 630 N.Y.S.2d 965, 654 N.E.2d 1213 ), they must rely on a motorist's "deemed consent" under Vehicle and Traffic Law § 1194(2)(a). Those limits, which we cannot simply dismiss as meaningless, include the requirement that the test be performed within two hours. To be sure, we have clarified that the "two-hour limitation" is not "an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver's consent" ( Atkins, 85 N.Y.2d at 1009, 630 N.Y.S.2d 965, 654 N.E.2d 1213 [emphasis added]; see People v. Finnegan, 85 N.Y.2d 53, 59, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995], cert denied 516 U.S. 919, 116 S.Ct. 311, 133 L.Ed.2d 214 [1995] ; People v. McGrath, 135 A.D.2d 60, 62, 524 N.Y.S.2d 214 [2d Dept. 1988], affd for reasons stated below 73 N.Y.2d 826, 537 N.Y.S.2d 480, 534 N.E.2d 318 [1988] ). Nevertheless, we contemporaneously instructed that the statute "mandates that the breathalyzer test be performed within a two-hour time period following arrest" when the test is conducted pursuant to the deemed consent provision of section 1194(2)(a) ( People v. Finnegan, 85 N.Y.2d 53, 59, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995] [emphasis added] ).

III.

Here, because the breathalyzer test was not performed within two hours of defendant's arrest, and the requirements necessary to obtain a court order pursuant to Vehicle and Traffic Law § 1194(3) were not met, the test results were not admissible under the statutory scheme (see Vehicle and Traffic Law § 1195[1] ; see also Smith, 18 N.Y.3d at 550-551, 942 N.Y.S.2d 426, 965 N.E.2d 928 [holding that, absent compliance with the statute, even evidence of a refusal must be suppressed] ). Nevertheless, as Atkins instructs, the test results may still be admissible if defendant voluntarily consented to take the test because "the two-hour limitation ... has no application" when the "defendant [has] expressly and voluntarily consented to administration of the [breath] test" ( 85 N.Y.2d at 1009, 630 N.Y.S.2d 965, 654 N.E.2d 1213 ; see Smith, 18 N.Y.3d at 548 n. 1, 942 N.Y.S.2d 426, 965 N.E.2d 928 ). The issue before us, then, is whether defendant gave his voluntary consent to the administration of the test, which generally presents a mixed question of law and fact (see e.g. People v. Mercado, 25 N.Y.3d 936, 937, 5 N.Y.S.3d 741, 28 N.E.3d 1181 [2015] ). However, it is undisputed that defendant expressly consented only after the expiration of the two-hour period and after being warned about the consequences of failing to do so; the parties' dispute here turns on whether the warnings were legally accurate and, consequently, whether his consent was voluntary (compare People v. Skardinski, 24 A.D.3d 1207, 1208, 807 N.Y.S.2d 232 [4th Dept. 2005] [police warning that defendant's driver's license would be suspended if she did not submit to chemical test incorrect where defendant had not yet been arrested] with People v. Slater, 166 A.D.2d 828, 562 N.Y.S.2d 985 [3d Dept. 1990], lv denied 76 N.Y.2d 1024, 565 N.Y.S.2d 775, 566 N.E.2d 1180 [1990] [consent voluntary where police warned the defendant that, if he did not consent, they would obtain a court order permitting blood to be taken against his will]; see Birchfield, --- U.S. ----, 136 S.Ct. at 2186 [remand to reevaluate voluntariness of consent where officer's advisory that law required submission to a blood test was rendered inaccurate by Supreme Court's decision]; see also Thomas, 46 N.Y.2d at 107, 412 N.Y.S.2d 845, 385 N.E.2d 584 ["(c)ompulsion ... may ... be accomplished by the State's attaching to the alternative course of action a penalty, punishment or detriment for the imposition of which no other justification exists and of which the defendant is therefore entitled to be free"] ). We conclude that, because more than two hours had passed since defendant's arrest, the warning that evidence of his refusal to take the breathalyzer test would be admissible at trial was inaccurate as a matter of law and, therefore, the record supports the conclusion of the courts below that his consent to the test was involuntary.

As previously noted, evidence of a refusal to take a breathalyzer test is admissible at trial pursuant to Vehicle and Traffic Law § 1194(2)(f). Although there is no time limit expressly set forth in section 1194(2)(f), that provision refers directly back to the chemical test authorized in subdivision (2)(a). Specifically, section 1194(2)(f) states that it is "[e]vidence of a refusal to submit to such chemical test" that is admissible at trial (emphasis added), with "such chemical test" being the one to which a defendant is deemed to have consented in subdivision (2)(a). In other words, the use of the word "such" in section 1194(2)(f) ties that provision back to subdivision (2)(a)-a different subparagraph within the same subdivision-so that the two must be read together (see McKinney's Cons Laws of NY, Book 1, Statutes § 97, Comment at 213-214, 216 ["(W)ords, phrases, and sentences of a statutory section should be interpreted with reference to the scheme of the entire section ... and the meaning of a single section may not be determined by splitting it up into several parts."] ). Section 1194(2)(a) provides, in turn, that a defendant is "deemed to have given consent to a chemical [breath] test," so long as the test is performed "within two hours after such person has been placed under arrest for" driving while intoxicated. Inasmuch as "such chemical test" is no longer authorized under the deemed consent provision in section 1194(2)(a) after the two-hour period has expired, the motorist cannot, as a matter of law, refuse to take the test within the meaning of section 1194(2)(f). Any evidence of a refusal after that point must be suppressed because it does not fall within the parameters of the statute (see Smith, 18 N.Y.3d at 550-551, 942 N.Y.S.2d 426, 965 N.E.2d 928 ).

Our interpretation of Vehicle and Traffic Law § 1194(2)(f) is supported by that provision's legislative history. As defendant notes, when the deemed consent provision was first enacted in 1953 as section 71-a of the Vehicle and Traffic Law, motorists had an absolute right to refuse the test-subject only to immediate license revocation (see Kates, 53 N.Y.2d at 596, 444 N.Y.S.2d 446, 428 N.E.2d 852 )-and evidence of a refusal to take the test was never admissible (see People v. Paddock, 29 N.Y.2d 504, 323 N.Y.S.2d 976, 272 N.E.2d 486 [1971] ; People v. Stratton, 1 N.Y.2d 664, 150 N.Y.S.2d 29, 133 N.E.2d 516 [1956], affg 286 App.Div. 323, 143 N.Y.S.2d 362 [3d Dept. 1955] ). Therefore, at the time the warnings were added to the statute, voluntariness was not a concern because a refusal could not be used against a defendant at trial. Indeed, the Legislature noted that "[t]he proposal [to add the warning language] would not affect any subsequent criminal proceedings on the charge for which arrested, since it specifically applies only to revocations for refusal to consent to the chemical test" (Sponsor's Mem, Bill Jacket, L 1968, ch 85).

The statute was not amended to permit evidence of a refusal at trial until 1973, in response to a concurring opinion by Judge Jasen in Paddock (see Sponsor's Mem, Bill Jacket, L 1973, ch 351). In his concurrence, Judge Jasen urged the Legislature to amend the statute to permit evidence of refusals because "there is no constitutional right to refuse to submit to such a test, [and] it necessarily follows that there can be no constitutional prohibitions to prevent comment upon the accused's failure to take the test" ( Paddock, 29 N.Y.2d at 505, 323 N.Y.S.2d 976, 272 N.E.2d 486 [Jasen, J., concurring ]; see Sponsor's Mem, Bill Jacket, L 1973, ch 351 [noting that "the prohibition on commenting on the refusal to take the test is strictly statutory"] ). Given the previously well-established rule that evidence of a refusal was inadmissible, the 1973 amendment was in derogation of common law. Therefore, it should be strictly construed (see Rust v. Reyer, 91 N.Y.2d 355, 360, 670 N.Y.S.2d 822, 693 N.E.2d 1074 [1998] ; see also McKinney's Cons Laws of NY, Book 1, Statutes § 304), further supporting an interpretation of the statute that would apply the two-hour limitation in Vehicle and Traffic Law § 1194(2)(a) to the evidentiary provision in Vehicle and Traffic Law § 1194(2)(f).

Finally, although we agree with the Appellate Term's conclusion that the warning pertaining to the admissibility of defendant's refusal was legally inaccurate and, therefore, inappropriate, we note again, as Judge Jasen did in his concurrence in Paddock, that the rights asserted by defendant here-insofar as they relate to breath tests-are statutory, not constitutional (see Smith, 18 N.Y.3d at 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 ; Kates, 53 N.Y.2d at 594-595, 444 N.Y.S.2d 446, 428 N.E.2d 852 ; Thomas, 46 N.Y.2d at 109, 412 N.Y.S.2d 845, 385 N.E.2d 584 ; Paddock, 29 N.Y.2d at 505, 323 N.Y.S.2d 976, 272 N.E.2d 486 [Jasen, J., concurring] ). The legislature is free to amend the statute to clarify the scope of the statutory rights, particularly in light of the express clarification in Birchfield that warrantless breath tests are constitutionally permissible 579 U.S. at ----, 136 S.Ct. at 2184. However, it is not for this Court, by judicial fiat, to strike the express protections that the legislature has provided to motorists in Vehicle and Traffic Law § 1194(2) on the ground that those protections merely "set up arbitrary obstacles to ... necessary evidence collection" (DiFiore, Ch. J., dissenting op. at 357, 78 N.Y.S.3d at 261-62, 102 N.E.3d at 1043-44).

In sum, because the warnings given to defendant were at least partially inaccurate-i.e., as to the admissibility at trial of his refusal to submit to testing-the courts below properly suppressed the results of the breathalyzer test on the ground that defendant's consent to take the test was involuntary. The People's remaining argument regarding the accuracy of the warning of license suspension-the crux of the dissent-is both irrelevant to our analysis and academic. Further, the People's argument concerning the admissibility of defendant's initial refusal to take the breathalyzer lacks merit inasmuch as defendant did not "persist[ ] in the refusal" ( Vehicle and Traffic Law § 1194[2][f] ).

Accordingly, the order of the Appellate Division should be affirmed.

WILSON, J. (concurring).

I join the majority, but write separately because law enforcement officials must have clear rules as to what they may tell a motorist suspected of impaired driving. I agree with my dissenting colleagues that the license suspension warning that police gave Mr. Odum-that the Department of Motor Vehicles would suspend or revoke his license if he refused the test-was correct (see 2012 NY St Dept of Motor Vehicles Op No. 1-12 at 2). Providing that warning to motorists, even after expiration of the two-hour period, does not constitute coercion, and does not render their subsequent consent involuntarily given.

DiFIORE, Chief Judge (dissenting).

In this case we are once again called to interpret an enigmatic statute as to its precise parameters in obtaining evidence for criminal prosecutions of intoxicated motorists. Specifically, we are asked to pick up where this Court left off in People v. Atkins, 85 N.Y.2d 1007, 630 N.Y.S.2d 965, 654 N.E.2d 1213 [1995], and answer whether the two-hour rule in Vehicle and Traffic Law § 1194(2)(a), which governs the deemed consent scenario, nonetheless applies to the administration of refusal warnings to a motorist who thereafter expressly consents to a breath test more than two hours from arrest. Because the only interpretation consistent with the purpose of the statute, our precedent, and the record before us is that the statutory two-hour rule has no such applicability to the refusal warnings provided to the motorist who consents to a breath test, I respectfully dissent.

On October 18, 2014, during the early morning hours, officers were directed to a group of people who had witnessed the driver of a white Cadillac Escalade hit their parked vehicle a few minutes earlier. The group pointed the officers in the direction in which the driver had fled the scene, and within approximately ten blocks, officers came upon the stopped white Escalade. The driver, the defendant herein, smelled of alcohol and was unsteady on his feet. Police arrested defendant at 3:12 a.m., transported him to the police precinct and, once there, advised him of his Miranda rights. Following questioning, and more than two hours from arrest, at approximately 5:50 a.m., an officer asked defendant, "Will you take this [breath] test?" Initially, defendant said no. The officer warned defendant that if he did not take the test, his license would be suspended and his refusal would be used against him as evidence in court. Defendant consented and provided the breath test, which measured his blood alcohol content (BAC) at .09%-above the legal limit.

Defendant was charged with reckless endangerment in the second degree, reckless driving, and three counts of operating a motor vehicle while under the influence of alcohol. Defendant moved to suppress the results of the breath test on the allegation that the police unlawfully arrested him. During the suppression hearing, defendant continued to argue that the test results were inadmissible as the result of an unlawful seizure of his person, but in closing arguments also argued that the suppression court was bound by People v. Rosa, 112 A.D.3d 551, 977 N.Y.S.2d 250 (1st Dept. 2013), wherein the intermediate appellate court in finding the defendant's consent to the chemical test voluntary, stated that when more than two hours pass from arrest, a defendant should not be warned that if he refuses to take a breath test, his driver's license will be suspended and the refusal can be used against him in court ( id. at 552, 977 N.Y.S.2d 250 ). The People disagreed with the effect of the dicta in Rosa and relied on a Department of Motor Vehicles (DMV) change in policy since the 2011 conviction in Rosa, allowing the agency to revoke licenses where a refusal fell outside the two-hour rule. Both the judicial hearing officer and nisi prius agreed they were bound by the precedent of Rosa, and suppressed the evidence of the chemical test.

On appeal to this Court, the crux of defendant's argument is that because the refusal warnings given to him were based on allegedly erroneous information-namely that the DMV had the authority to revoke defendant's license under the circumstances-his consent following those warnings was coerced. However, based on the undisputed evidence in the hearing record, the refusal warnings were not a misapplication of law at all. During the suppression hearing, the most decisive period in this case's history, the People argued that Rosa was inapplicable because DMV policy had changed since the facts underlying that case. In 2012, the DMV amended its policy to allow revocation or suspension of a motorist's license for refusing to submit to a breath test, even if such refusal is given more than two hours from arrest (see 2012 NY St Dept of Motor Vehicles Op No. 1-12 at 2). Defendant never once challenged the People's assertion that the controlling refusal warnings as amended by DMV policy were correct as a matter of fact and law, and that defendant's consent was not coerced due to those warnings and must be accepted as voluntary (see People v. Graham, 25 N.Y.3d 994, 996, 10 N.Y.S.3d 172, 32 N.E.3d 387 [2015] ). Voluntariness of consent to a search is a question of fact to be determined by the surrounding circumstances (see People v. Gonzalez, 39 N.Y.2d 122, 124, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ; Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 [1973] ) and we are bound by the factual record before the hearing court (see People v. Wheeler, 2 N.Y.3d 370, 373, 779 N.Y.S.2d 164, 811 N.E.2d 531 [2004] ). Because it was undisputed that the DMV changed its policy to allow revocation of a license in the event a breath test is refused more than two hours after the arrest-and defendant never challenged that legal authority-our inquiry into alleged coerciveness as a result of the warnings given ends. The majority cannot simply sidestep the fact that defendant in the trial court never disputed the DMV's authority in this area and thus conceded the accuracy of the DMV warnings leading to his consent, allowing the People's legal argument before that court to stand without contradiction.

The cooperation of a licensed motorist in submitting to a chemical test upon arrest for driving while under the influence of alcohol is necessary for the successful administration of a breath test, thus prompting all fifty states to enact "implied consent" laws to secure that cooperation from motorists as a condition of their license to drive on the public highways (see Birchfield v. North Dakota, 579 U.S. ----, 136 S.Ct. 2160, 2168-2169, 195 L.Ed.2d 560 [2016] ). As a pioneer in combating the growing menace of drunk driving since the middle of the last century, New York designed the nation's first deemed consent law to set up a paradigm for evidence collection by providing that the privilege of driving required submission to a chemical test under penalty of a revocation of the license (see Interim Rep of N.Y. St Joint Legis Comm on Motor Veh Problems, 1953 N.Y. Legis Doc No.

25 at 11-18). The sole purpose of the statute, now section 1194, is compulsory submissions to chemical tests from motorists. It is an evidence gathering measure specifically created by the legislature in recognition of the basic difficulty of proving the BAC of drivers at trial without such tests (see id. at 12-13). For that reason, the legislature did not-and this Court has never until today-set up arbitrary obstacles to this necessary evidence collection (see People v. Ward, 307 N.Y. 73, 77, 120 N.E.2d 211 [1954] ["(T)he Committee's purpose, obviously, was neither to circumscribe nor limit the use of such tests in evidence."] ). The legislative history provides no basis to expand the limitations of the two-hour rule, which is tethered only to the deemed consent scenario. Originally, the two-hour rule was an evidentiary standard concerned with probativeness (see L 1941, ch 726, eff July 1, 1941). Especially at the statute's inception, when technological advancements in this area were less developed, a prompt breath test was presumably a more accurate measurement of BAC (see People v. Washington, 23 N.Y.3d 228, 231, 989 N.Y.S.2d 670, 12 N.E.3d 1099 [2014] ), the legal limit of which has since been reduced by nearly half. In purposely placing the two-hour rule in the section 1194 provisions devoted solely to evidence collection in deemed consent cases, as opposed to other section 1194 provisions or section 1195, governing evidence admissibility and its probative value, the legislature signaled the two-hour rule does not define either the admissibility or probative value of evidence taken on court order pursuant to section 1194 or upon express consent of the motorist (see Atkins, 85 N.Y.2d at 1008-1009, 630 N.Y.S.2d 965, 654 N.E.2d 1213 ). Indeed, as modern breath test devices "can detect the presence of alcohol more quickly and accurately than before" and "are generally regarded as very reliable" ( Birchfield, 579 U.S. ----, 136 S.Ct. at 2168 ), linking the probative value of the test to the passage of two hours is arbitrary as the BAC reading from the test alone determines its probativeness (see Vehicle and Traffic Law § 1195[2] ).

Contrary to the majority's resolution of the issue before us, the placement of two hours in the deemed consent provision was not meant to automatically suppress evidence of the circumstances surrounding requests of a motorist to expressly consent to a breath test because that would ignore both the general purpose and spirit of the statute, as well as our precedent. Instead, the intent was to temporally limit police in obtaining warrantless blood sample tests beyond two hours from unconscious or incapacitated drivers, a factual scenario existing at the time of enactment but now curtailed by Birchfield v. North Dakota see 579 U.S. at ----, 136 S.Ct. at 2186 ; People v. Kates, 53 N.Y.2d 591, 595, 444 N.Y.S.2d 446, 428 N.E.2d 852 [1981] ["(T)he history of the statute shows that the wording was carefully chosen with this situation in mind"] ). In the scenario of an individual who can only be deemed to consent to a chemical test, a two-hour temporal parameter from the point of arrest for police to conduct compulsory tests was reasonable.

Moreover, to the extent the majority maintains this is somehow a refusal case (see majority op. at 347-349, 350-353, 78 N.Y.S.3d at 254-56, 256-59, 102 N.E.3d at 1036-37, 1038-41) it is mistaken. This is a consent case with actual evidence of a breath test provided by the motorist. Under section 1194(2)(f), a defendant's refusal-which is inextricably linked to the revocation of a license and more readily understood as a revocation of the deemed consent created by the legislature as a condition of a license grant-is admissible at trial "only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" ( Vehicle and Traffic Law § 1194[2][f] [emphasis added] ). This evidence is the second legislative penalty of refusal to take the compelled test, the first being the penalty of a revocation of a license (see People v. Thomas, 46 N.Y.2d 100, 108, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 [1979] ). The refusal is defined by the statute as one that must follow the giving of requisite warnings and one whereby a defendant persistently refuses to submit to a compulsory test. Then the evidence of the refusal is admitted pursuant to section 1194(2)(f) as an inference of guilt. Obviously, refusal evidence is entirely superfluous when a defendant has consented to a breath test and the BAC results speak directly to the issue of guilt. Further, the position that advising defendant that his refusal could be used as evidence is somehow coercive is also without merit. As we have held, a motorist has no constitutional right to refuse, nor does a motorist enjoy an absolute right of refusal previously given by statute, making the majority's continued reliance on People v. Paddock, 29 N.Y.2d 504 (1971) misplaced (see majority op. at 352, 78 N.Y.S.3d at 258-59, 102 N.E.3d at 1040; see also Thomas, 46 N.Y.2d at 110, 412 N.Y.S.2d 845, 385 N.E.2d 584 ["Inasmuch as that statutory right has now been modified ... making evidence of refusal admissible, the decision[ ] in ... Paddock [is] no longer determinative."] ).

Here, defendant did not contest the DMV's authority to revoke a license beyond the two-hour rule applicable in deemed consent scenarios. A motorist's right of refusal to take a chemical test is neither compelled nor constitutionally privileged, and the DMV's revocation policy is permissible as a condition of the license to drive. Accordingly, the evidence of that refusal is admissible under the general rule that all relevant evidence is admissible unless its admission violates some exclusionary rule (see People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ; People v. Berg, 92 N.Y.2d 701, 706, 685 N.Y.S.2d 906, 708 N.E.2d 979 [1999] ["(I)f evidence is constitutionally permissible, the absence of authorization in a statute does not make it impermissible."]; Thomas, 46 N.Y.2d at 109, 412 N.Y.S.2d 845, 385 N.E.2d 584 ["(D)efendant had no constitutional privilege or statutory right to refuse to take the test; hence comment on his refusal represents no infringement of privilege or right."] ). As the warning of the consequences of a refusal in this case was legally accurate, a claim of coercion is unsound.

Here, the videotape demonstrated defendant was asked by the officer to take the test. He said no once. Officers then gave him the DMV refusal warning and defendant consented to take the breath test. Like any consent scenario, upon being asked to provide evidence by the police, defendant elected to take the breath test after being made aware of his options. Therefore, at bottom this is an express consent case and the consent was voluntary (compare Atkins, 85 N.Y.2d at 1008, 630 N.Y.S.2d 965, 654 N.E.2d 1213, with People v. Smith, 18 N.Y.3d 544, 547, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ).

The statute clearly provides three different methods of obtaining compulsory breath tests depending on the different factual scenarios confronting police in encountering intoxicated motorists. To be sure, the first such compulsory test is the chemical field test, provided in the "field" and requiring no warnings or consent before its administration (see Vehicle and Traffic Law § 1194[1][b] ). The statute also has always made the distinction between conscious drivers capable of cooperating and unconscious drivers or those too drunk to cooperate:

"In the case of an unconscious individual, a chemical test can be administered since he is deemed to have given his consent when he used the highway. It is not necessary that a person be given the opportunity to revoke his consent. The only reason the opportunity to revoke is given is to eliminate the need for the use of force by police officers if an individual in a drunken condition should refuse to submit to the test" (Interim Rep of N.Y. St Joint Legis Comm on Motor Veh Problems, 1953 N.Y. Legis Doc No 25 at 35 [emphasis added]; see Kates, 53 N.Y.2d at 595-596, 444 N.Y.S.2d 446, 428 N.E.2d 852 [noting that the legislature deliberately distinguished between the conscious driver and the incapacitated driver] ).

On that premise, the second compulsory test is provided in section 1194(2)(a) and covers the deemed consent of motorists to submit to a demand for a chemical test under penalty of losing their license and incorporates the two-hour rule. A persistent refusal triggers section 1194(2)(b) requiring a report of refusal to submit to a chemical test when a motorist revokes the statutory consent presumed from the license to drive. Lastly, the third compulsory test is set forth in section 1194(3), which provides for a court order for a compulsory chemical test without any two-hour rule. By this statutory scheme, the refusal warnings in section 1194(2)(b) -given to motorists who persist in revoking the deemed consent presumed to be given by any licensed driver-serve the purpose of alerting the driver to the consequences of blocking the compulsory method of evidence collection laid out in section 1194(2)(a).

The two-hour rule, however, has no applicability outside the deemed consent scenario. That sound explanation furthers the object, spirit, and purpose of the statute (see McKinney's Cons Laws of NY, Book 1, Statutes § 92), and is also compatible with our decades of precedent on this very subject. Indeed, we have long narrowed the applicability of the two-hour rule to the confines of deemed consent. To be sure, in Atkins, we held that a defendant may provide express consent to undergo a chemical test at any time, thus rendering the two-hour requirement irrelevant (see 85 N.Y.2d at 1009, 630 N.Y.S.2d 965, 654 N.E.2d 1213 ; see also Smith, 18 N.Y.3d at 548 n. 1, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ["Although time is of the essence in obtaining chemical test evidence, if a defendant agrees to take the test, there is no per se statutory bar on admission of the results if the test was administered more than two hours after defendant's arrest."] [emphasis added] ). Additionally, in People v. McGrath, we affirmed the Appellate Division decision holding the two-hour rule inapplicable to section 1194(3) on tests obtained by court orders (see 135 A.D.2d 60, 62, 524 N.Y.S.2d 214 [2d Dept. 1988], affd for reasons stated below 73 N.Y.2d 826, 537 N.Y.S.2d 480, 534 N.E.2d 318 [1988] ["Nothing in the unambiguous language of [ section 1194(2)(a) ] indicates that the Legislature intended to impose a specific time limitation on the performance of court-ordered chemical tests. The omission of such a restriction reflects a rational legislative determination that it was unnecessary."] ). Finally, in People v. Finnegan, 85 N.Y.2d 53, 59, 623 N.Y.S.2d 546, 647 N.E.2d 758 (1995), we held "[n]othing in the unambiguous language of [the statute] indicates that the Legislature intended to cross-reference or incorporate" the two-hour rule to section 1194(4) on independent physician tests. Therefore, we have already largely confined the statutory two-hour rule to the deemed consent scenario and nothing more. Here, the issue framed is the allegedly illegal seizure by police of the evidence of a breath test because it was taken without defendant's voluntary consent (see People v. Kuhn, 33 N.Y.2d 203, 208-209, 351 N.Y.S.2d 649, 306 N.E.2d 777 [1973] ). Particularly in light of Birchfield's holding that a warrantless breath test is a reasonable search incident to arrest within the meaning of the Fourth Amendment for intoxicated motorists, any issue of consent here is somewhat academic as one's consent is not required for a search and seizure (see 579 U.S. at ----, 136 S.Ct. at 2184 ). In any event, this is neither a deemed consent case nor a persistent refusal case-a distinction that has muddled this litigation at every stage. We are dealing instead with a defendant's cooperation in expressly consenting to take a breath test after being provided appropriate warnings of the consequences of his refusal to do so. We have held that the best practice for police is to warn defendants of options, as well as their right of refusal so that a defendant's decision to take a breath test is made knowingly and voluntarily (see Ward, 307 N.Y. at 78, 120 N.E.2d 211 ). In this case, police asked defendant to take the breath test and provided the refusal warnings as explained in the DMV's revised policy, advising defendant that his license would be revoked even though more than two hours had passed since his arrest, and a refusal can be used as evidence against him. As a result, defendant made a choice and expressly consented to the breath test. Based on the record, the statute, and our precedent, the statutory two-hour rule does not apply to the administration of the refusal warnings given in such a scenario. Accordingly, the results of the breath test should not have been suppressed.

For those reasons, I dissent.

Judges Rivera, Wilson and Feinman concur, Judge Wilson in a concurring opinion. Chief Judge DiFiore dissents in an opinion in which Judges Fahey and Garcia concur.

Order affirmed.

      Contrary to the People's argument, as well as the conclusion of the Appellate Division, Second Department in People v. Robinson 82 A.D.3d 1269, 1269 [2d Dept. 2011], lv denied 17 N.Y.3d 800 (2011) and the dissenters, the applicability of the deemed consent provision in Vehicle and Traffic Law § 1194(2)(a)(1) is not limited to those who are "incapable of consenting" or, as the dissent would have it, "unconscious or incapacitated drivers" (DiFiore, Ch. J., dissenting op. at 358, 78 N.Y.S.3d at 262, 102 N.E.3d at 1044). The statutory language itself provides that "[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test ... within two hours after ... arrest" (emphasis added). The relevant legislative history further clarifies that the deemed consent provision applies to any person "suspected of driving while under the influence of intoxicating liquors" (Sponsor's Mem, Bill Jacket, L 1953, ch 854 at 35). Finally, in Kates, this Court noted that the "general rule" is that any person operating a motor vehicle is deemed to have consented to such tests 53 N.Y.2d at 595, 444 N.Y.S.2d 446, 428 N.E.2d 852 ; we did not suggest that the deemed consent provision is limited to those who are unconscious or otherwise incapable of consent, and stated that the "exception" to the general rule contained in subdivision (2) "is only applicable when the driver refuses to consent" (id. ). That is, the relevant statutory distinction between conscious and unconscious drivers is that only the former need be given the opportunity to revoke consent (see id. at 595-596, 444 N.Y.S.2d 446, 428 N.E.2d 852 ).

      The fundamental flaw in the dissent's reasoning is its failure to recognize the distinction between consent that is merely "express" and consent that is both "express[ ] and voluntar[ ]y, as required by Atkins, 85 N.Y.2d at 1009, 630 N.Y.S.2d 965, 654 N.E.2d 1213 ; see DiFiore, Ch. J., dissenting op. at 358-361, 78 N.Y.S.3d at 262-65, 102 N.E.3d at 1044-47). We decline to minimize our prior decision in Atkins, including the voluntariness requirement, as "somewhat academic" (DiFiore, Ch. J., dissenting op. at 362, 78 N.Y.S.3d at 265-66, 102 N.E.3d at 1047-48) simply because the Supreme Court of the United States made express in Birchfield, --- U.S. ----, 136 S.Ct. at 2184 what this Court had recognized long before Atkins was decided-that the Fourth Amendment permits warrantless breath tests (see Kates, 53 N.Y.2d at 594-595, 444 N.Y.S.2d 446, 428 N.E.2d 852 ). Moreover, contrary to the People's arguments, Atkins does not imply that the two-hour rule is simply irrelevant or that, because a breath test obtained based on voluntary consent is admissible after two hours, a refusal is admissible as well. Rather, Atkins held only that the section 1194(2)(a) is inapplicable when a defendant has voluntarily consented because that statute is concerned only with those " 'required to submit' " (id. at 1008, 630 N.Y.S.2d 965, 654 N.E.2d 1213, quoting Ward, 307 N.Y. at 77, 120 N.E.2d 211 ).

      A truly holistic reading of the statute, taking into account its structure, further supports this interpretation. As relevant here, Vehicle and Traffic Law § 1194 authorizes police to seek two types of chemical tests-those based upon deemed consent under subdivision (2) and court-ordered tests under subdivision (3). Section 1194(2) is a self-contained paragraph that refers only to the "such" chemical tests described therein, i.e., the chemical test to which a defendant is "deemed to have given consent" (id. at § 1194[2][a] ). Section 1194(3), on the other hand applies to "[c]ompulsory chemical tests," which the statute defines as "[c]ourt ordered chemical tests" (id. § 1194[3][a] ). The reference to "such chemical test[s]" in subdivision (3) refers to the compulsory, court-ordered tests addressed in that paragraph and does not operate to eliminate the two-hour requirement from subdivision (2), as the dissenters conclude (see DiFiore, Ch. J., dissenting op. at 361-362 n. 6, 78 N.Y.S.3d at 265 n. 6, 102 N.E.3d at 1047 n. 6).

      The police officer's administration of the refusal warnings, defendant's consent to take the breath test, and the administration of the test were recorded on videotape and admitted into evidence.

      Under Vehicle and Traffic Law § 1195,
      "[a] defendant who has been compelled to submit to a chemical test pursuant to the provisions of subdivision three of section [1194] of this article may move for the suppression of such evidence in accordance with article seven hundred ten of the criminal procedure law on the grounds that the order was obtained and the test administered in violation of the provisions of such subdivision or any other applicable law" (Vehicle and Traffic Law § 1195[3] [emphasis added]; see CPL 710.20[5] ).
      In this case, there was no subdivision three compulsory test, to wit a court order.

      The refusal warnings at issue in this case were meant to warn motorists of the consequences of refusing chemical tests. The effect of the majority's rule is to accelerate an already growing and alarming rate of refusals as they are without consequence, thus frustrating drunk driving prosecutions and fundamentally undermining the very purpose of the statute (see Namuswe et al., Breath Test Refusal Rates in the United States at 3 [DOT-HS-811-881 2014]; Birchfield, --- U.S. ----, 136 S.Ct. at 2169-2170 ). Further, contrary to the majority's assertion, the legislature intended section 1194 to compel evidence of drunk driving, rather than provide "protections" (see majority op. at 353, 78 N.Y.S.3d at 259, 102 N.E.3d at 1040-41) to motorists to avoid taking a breath test (see People v. Thomas, 46 N.Y.2d 100, 108, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 [1979] ["Submission to the test, not its evasion, was what was desired ... by the Legislature in the enactment of section 1194"] ). Our decision is not a "judicial fiat" but a construction of the statute based on the consideration of the mischief sought to be remedied by the law (see McKinney's Cons Laws of NY, Book 1, Statutes § 95), a remedy that fails when evidence lawfully obtained is suppressed for no logical reason.

      The two-hour rule exists on a sliding scale as it commences only at the time of arrest, which requires the police to take defendant into custody at some juncture.

      Relatedly, we have understood the impracticality of strict compliance with the statute. For example, in People v. Goodell, 79 N.Y.2d 869, 581 N.Y.S.2d 157, 589 N.E.2d 380 (1992), we held that although the language of the statute provides that the chemical test to an unconscious motorist be administered within two hours after the motorist has been placed under arrest, to formally place an unconscious person under arrest would be "an empty gesture" (id. at 871, 581 N.Y.S.2d 157, 589 N.E.2d 380 ).

      The majority makes much of the word "such" in referring to chemical tests in section 1194(2)(f), arguing that this must incorporate the two-hour rule across the statute because it refers to "chemical test" as listed in section 1194(2)(a) (see majority op. at 351-352, 78 N.Y.S.3d at 257-59, 102 N.E.3d at 1039-40). However, if the statute is truly to be read in a holistic way, giving purpose to the individual provisions and respect to the desired scheme of the legislature, then "such chemical test" cannot have the effect the majority suggests (see McKinney's Cons Laws of NY, Book 1, Statutes § 92, Comment at 82; id. § 95, Comment at 47-48, 54; id. § 148, Comment at 50; id. § 254, Comment at 23). After all, section 1194(3) also contains the phrase "such chemical tests," but we have previously determined the two-hour rule inapplicable to compulsory court orders (see People v. McGrath, 73 N.Y.2d 826, 826, 537 N.Y.S.2d 480, 534 N.E.2d 318 (1988) ). Instead, "such chemical tests" refers to the types of chemical tests specifically enumerated in section 1194(2)(a) (i.e. breath, blood, urine, or saliva). Interpreting "such" to incorporate only the definition of "chemical tests," not the two-hour rule, harmonizes the statute while also fulfilling its legislative purpose (see Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d 81, 87, 637 N.Y.S.2d 670, 661 N.E.2d 142 [1995] ["use of the term 'such' ... serves as a grammatical echo for its immediate antecedent"] ).

      There is no "fundamental flaw" in this reasoning and any confusion lies with the majority (see majority op. at 350 n. 2, 78 N.Y.S.3d at 257 n. 2, 102 N.E.3d at 1039 n. 2). In short, the majority misunderstands the meaning of "consent" in "deemed consent." "Deemed consent" is not consent in the traditional sense at all-rather it is a "demand" to submit (see Interim Rep of N.Y. St Legis Comm on Motor Veh Problems, 1953 N.Y. Legis Doc No 25 at 35). Under a traditional consent analysis, voluntariness is both required and evaluated, which is our distinction when using the term "expressed consent" as opposed to one that is "deemed" (see Kates, 53 N.Y.2d at 594, 444 N.Y.S.2d 446, 428 N.E.2d 852 ). The majority makes its misunderstanding over this basic point clear by divorcing "express" consent from "voluntariness," but traditional-expressed-consent always requires voluntariness (see Gonzalez, 39 N.Y.2d at 124, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ). Because Birchfield now allows for warrantless breath tests as a search-incident to arrest under the Fourth Amendment, traditional consent is no longer a factor-and that is why the majority's focus on voluntary consent is somewhat academic (see--- U.S. at ----, 136 S.Ct. at 2185 ).


text:
    John P. MERY et al., Appellants, v. Frank EGINGER, Defendant,
    Society of Friends Church, & c., Respondent.
    No. 110 SSM 12
    Court of Appeals of New York.
    Decided June 7, 2018
    Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), for appellants.
    Jeffrey Samel & Partners, New York City (Robert G. Spevack of counsel), for respondent.
    OPINION OF THE COURT
   On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11 ), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division ( 149 A.D.3d 827, 49 N.Y.S.3d 905 [2017] ) and certified question not answered as unnecessary.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.


text:
    In the Matter of Denise Ann BRADY, Respondent, v. Raymond A. WHITE, Appellant.
    (And Two Other Proceedings)
    2018-356
    Court of Appeals of New York.
    Decided June 7, 2018
    Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Family Court's denial of father's objection to the Support Magistrate's willfulness determination, dismissed upon the ground that such portion of the order does not finally determine a proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.