The defendant, John Sweeney, is charged with driving while intoxicated, in violation of Vehicle and Traffic Law §§ 1192 (2) and (3) and no seat belt driver, in violation of Vehicle and Traffic Law § 1229 (c) (3) (a). A pre-trial hearing was ordered to determine the defendant's motions to suppress and preclude. On September 4, 2007 and December 7, 2007 a combined

Huntley/Mapp/Dunaway hearing was held to determine the admissibility of evidence obtained against the defendant, which included statements and the chemical test result. After the September 4, 2007 hearing was adjourned, both parties filed memoranda of law addressing the appropriate sanction for the People's failure to preserve a certain video recording of the [*2]defendant. Subsequent to the hearing, the defendant filed a memorandum of law in support of his motion to suppress the defendant's post-arrest statements. The People did not file a responsive memorandum of law. These matters now come before the Court for a decision.

The People called two witnesses at the hearing, Officer William Warner and Officer Daniel Nadareski of the Albany Police Department. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

Officer Warner has been employed as a police officer with the Albany Police Department for fifteen years. He is assigned to the traffic safety unit and is currently an alcohol enforcement officer. On September 9, 2006 at about 2:53 P.M., near the intersection of Quail Street and Central Avenue, Officer Warner passed a slow moving vehicle heading southbound and noticed that the driver did not appear to be wearing a seatbelt. Officer Warner activated his emergency lights and siren and the defendant pulled his car over to the side of the road. When Warner approached the driver's side of the vehicle and asked the defendant for his license he again noticed that the driver was not wearing his seatbelt. The defendant did not fumble with his license when asked to produce it. Officer Warner noticed a strong odor of alcoholic beverage emanating from the car. He also observed that the defendant's face was flushed and sweaty, his eyelids were droopy and his speech was slurred. When Warner asked the defendant where he was coming from the defendant stated"Pauly's," which is a local bar. He then asked the defendant whether he had been drinking and the defendant responded that he had a beer but could not recall the number of beers he had drank. When Officer Warner was questioning the defendant about where he was coming from, he did not display a weapon, threaten or make any promises to the defendant. He then administered several field sobriety tests to the defendant. Officer Warner testified that the defendant could not recite the alphabet, could not perform the finger dexterity test, "failed" the horizontal gaze nystagmus test and "failed" the Alco-Sensor. Officer Warner took no notes as to the defendant's appearance or performance of the field sobriety tests except for the information found on the bill of particulars. He also testified that he mistakenly indicated a failure for the walk and turn test, which was not performed in this case, on the bill of particulars. After the defendant gave a positive reading for alcohol on the Alco-Sensor, he was arrested and placed on the curbside to await transit. Officer Warner did not ride in the "wagon" to the South Street Station with the defendant.

Officer Warner testified that he engaged in some "additional conversation at the scene" with the defendant and acknowledged that he had a "lengthy conversation down in the booking room" with the defendant. No testimony was elicited as to the substance or circumstances of the "additional" conversation at the scene of the vehicle stop. However, once at the booking room, the defendant allegedly stated that he knew that he had made a mistake and had too much to drink. No further testimony was elicited by the People concerning the context of the conversation in the booking room between Officer Warner and the defendant. On cross-examination, Officer Warner testified that his booking room conversation with the defendant occurred after the defendant was taken into custody, placed under arrest and asked to submit to a chemical test. Officer Warner further testified that no Miranda waiver was given to the defendant and acknowledged that, if the Miranda waiver had been given to the defendant, the specifics of such waiver - such as the time, date and location would have been indicated on the [*3]bottom portion of the DWI bill of particulars.

When Officer Warner arrived at the South Street Station, the defendant had already been removed from the "wagon" and was sitting on a bench in the booking room. Warner testified that the defendant's removal from the transport vehicle, as well as "what he looked like as he was sitting in the station" and "right up through taking the [chemical] test" was recorded on video. Officer Warner did not believe that audio was captured on the video recording.

The People next called Police Officer Daniel Nadareski,who is employed by the Albany Police Department in the computer unit, as a witness.^[FN1] Nadareski testified that the Albany Police Department uses a system of motion activated cameras that are connected to a digital video recorder. These cameras record the booking area which includes the breath test room. The hard drive of the digital video recorder automatically overwrites the oldest recording on an average recording cycle of thirty to forty-five days. There are currently no procedures in place to automatically preserve these recorded videos. Therefore, without a specific request being made to preserve a video recording, it is automatically overwritten and the data is irretrievable. The digital video recorder currently in use is an older model with limited memory capacity and no internal digital video burner. Nadareski testified that the cameras are positioned in such a way as to record "all or virtually all" of a defendant's movements "from the time a DWI suspect is brought to the south station, until they blow into the breath test machine." Upon questioning by the Court, Officer Nadareski testified that currently there is no standard operating procedure in place to notify a requestor of the thirty to forty-five day time limit in which to request a video recording before it is automatically overwritten.

In this case, the People must establish probable cause for the arrest of the defendant by Officer Warner. A police officer may effectuate an arrest for an offense without a warrant if he has "reasonable cause to believe that a person has committed that offense in his presence" (CPL 140.10 [1] [a]). "Reasonable cause means probable cause" (People v. Maldonado, 86 NY2d 631,635 [1995], citing People v. Johnson, 66 NY2d 398, 402, n. 2 [1985]). As noted by the Court of Appeals, "[p]robable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v. Bigelow, 66 NY2d 417, 423 [1985]). The legal conclusion as to whether probable cause exists must be made after consideration of all the facts and circumstances (see id.).

Officer Warner's observation of the seatbelt violation justified the initial traffic stop of the defendant (see People v. Banks, 85 NY2d 558, 562 [1995]). His observations of the odor of an alcoholic beverage emanating from the car, the defendant's flushed face, droopy eyes, slurred speech, the "failure" of various field sobriety tests by the defendant combined with his [*4]statements that he was coming from a local bar and that he had a beer, all provided Officer Warner with reasonable grounds to believe that the defendant was driving while intoxicated. Therefore, the evidence secured as a result of the arrest was lawfully obtained. Accordingly, the defendant's motion is denied.

The Court must also examine the scope of the People's obligation to disclose and preserve a video recording of the defendant following his arrest for driving while intoxicated. In addition, the Court must determine the appropriate sanction, if any, to impose against the People for their failure to preserve the video recording. As this Court has noted in prior proceedings, the People's failure to preserve discoverable evidence, which often consists of video or audio recordings, is a recurring problem. The frequency with which this issue arises leads the Court to the inescapable conclusion that the People do not fully understand their duty to preserve such evidence.

There is no question that the video recording of the defendant is discoverable (see People v. Marr, 177 AD2d 964 [4 Dept 1991]; People v. Karns, 130 Misc 2d 247 [1985]; see also CPL 240.20 [1] [d], [g] and [h]). It is well- settled that, "where the People are in possession of discoverable material, they are duty bound to preserve such evidence [] and, in the event such evidence is lost or destroyed, sanctions will be imposed" (People v. Torres, 190 AD2d 52, 54 [3 Dept 1993], citing People v. Kelly, 62 NY2d 516 [1984]; see People v. Okehoffurum, 201 AD2d 508, 509 [2 Dept 1994]). As the Court of Appeals has noted, "[a] necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made [as] [a]ny other rule would facilitate evasion of the disclosure requirements" (People v. Kelly, supra at 520, citing United States v. Bryant, 439 F.2d 642 [DC Cir.1971], revd on other grounds, 488 U.S. 51 [1988]). Therefore, "where discoverable evidence gathered by the prosecution or its agent is lost, the People have a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss" (People v. Kelly, supra at 520).

The People offer several arguments to justify their failure to preserve the video recording. The People first state that they had no duty to preserve the video recording because they "were not aware that this case would be moving towards trial [and] that the case was going to be resolved." Under the Criminal Procedure Law, the People's obligation to preserve discoverable evidence does not rest upon whether or not a case will proceed to trial, nor does the likelihood of a plea bargain lessen this duty.

The People also argue that they had no duty to preserve the video recording because the demand to produce was served untimely. Specifically, the People argue that they "should not be held to preserve a videotape on an arrest that was at least four months old before the demand was made." However, the People failed to file a written refusal pursuant to CPL 240.35 or to object to the demand to produce. In fact, the People agreed to provide the video recording to the defendant in their response to the demand to produce.

In addition, the People argue that they "did not intentionally avoid obtaining the videotape." This statement is at odds with the uncontested facts of this case. The People were aware of a thirty to forty-five day window within which to request the preservation of the video recording from the Albany Police Department. After this time period, the video recording is automatically overwritten and the data is irretrievable. However, no such request to preserve the recording was made. Regardless of whether fault is couched in terms of intentional conduct, [*5]mere negligence, good or bad faith, the duty to preserve this evidence remains the same.

Lastly, the People claim that "the disclosure of the videotape is not of constitutional significance . . . it is a product of statute." If it is the position of the People that the failure to provide a defendant with a video recording of his own chemical breath test can never implicate constitutional considerations, they are mistaken. The plain language of Criminal Procedure Law 240.20 (1) (h) dictates that the People shall disclose, "[a]nything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States." Because the video recording was never viewed by anyone, it can never be known whether or not it was exculpatory in nature. The foreclosure of this analysis is due solely to the inaction of the People.

This Court agrees with the City Court of Rochester in People v Karns (130 Misc 2d 247 [1985]), which held that "a prosecutor has an affirmative duty to view [a videotape of a defendant following his arrest for driving while intoxicated] and, if it is exculpatory, make it available to the defendant, even absent a request for it" (id. at 250). Even so, the People maintain that the loss of the video recording results in "little, if any, arguable prejudice to the defendant." The basis for this statement is unknown and overlooks the fact that in prior cases, the booking room video recording proved to be highly material to the issue of whether chemical tests were administered properly.

The only remaining issue is what sanction is appropriate for the failure of the People to view and preserve the video recording. The Court of Appeals has noted that "[i]n fashioning an appropriate' response to the prosecution's wrongful failure to preserve evidence (see CPL 240.70, subd 1), the degree of prosecutorial fault surely may be considered, but the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society" (People v. Kelly, supra at 520).

In order to assess the degree of prosecutorial fault, the Court must consider the fact that this case is not an isolated incident. Despite warnings by the Court, and fervent arguments by defense counsel, the People have repeatedly and routinely failed to preserve discoverable evidence. In this case, the People have failed to show that any diligent, good-faith efforts were made to prevent the loss of the video recording (see id.). Instead, the People have offered a series of convoluted arguments in an attempt to excuse them of their unquestionable duty to preserve this evidence.

Moreover, the Court finds that the defendant was substantially prejudiced by the failure to preserve the video recording. As testified to by Officer Nadareski, and confirmed by the Court's viewing of defense exhibit A, the video recording would have captured "all or virtually all" of the defendant's movements from the time he arrived at the police station until the time he provided a breath sample.^[FN2] Thus, all pre-test observation periods as well the administration of the chemical test would have been captured on the video recording. As the defendant correctly notes, one of the few defenses to a Vehicle and Traffic Law § 1192 (2) charge is to "cast doubt" upon the manner in which a specific chemical test is administered. The inaction of the People, at the very least, foreclosed any objective assessment of relevant facts uniquely pertinentto the Vehicle and Traffic Law § 1192 (2) charge. [*6]

Based upon the substantial prejudice suffered by the defendant, the fact that the video recording was specifically requested by the defendant, the failure to show that any diligent, good-faith efforts were made to prevent the loss of the video recording and the past failures of the People to preserve this type of discoverable evidence, the Court finds that the only appropriate sanction in this case is to preclude any evidence of the chemical test result.

It is well-settled that at a Huntley hearing, the People must prove beyond a reasonable doubt the voluntariness of the statements at issue (see People v. Holland, 48 NY2d 861 [1979]; People v. Wilhelm, 34 AD3d 40, 53 [3 Dept 2006]; People v. Whittle, 96 AD2d 542 [2 Dept 1983]). The Court must examine the totality of the evidence presented and the circumstances surrounding the subject statements to determine whether or not the People have met their burden of proof (see People v. Anderson, 42 NY2d 35, 38 [1977]; People v. Westervelt, ___ AD3d ___, ___, 2008 NY Slip Op. 00008 [3 Dept 2008]["The issue of the voluntariness of a statement is a factual question determined by the totality of the circumstances"]). Moreover, the administration of the Miranda waiver is a procedural prerequisite to the admissibility of any statement given during custodial interrogation of a suspect (see CPL 60.45 [b][ii]; People v. Yukl, 25 NY2d 585, 588 [1969], cert denied 400 US 851 [1970]["Miranda v. Arizona, [] requires that at the time a person is taken into custody or otherwise deprived of his freedom, he must be advised of his constitutional rights"]; see also People v. Ellis, 83 AD2d 652, [3 Dept 1981]; People v Newson, 68 AD2d 1979]).^[FN3]

At the combined Mapp/Dunaway/Huntley hearing, Officer Warner testified that no Miranda waiver was given to the defendant. However, the defendant's post-arrest statements contained in the CPL 710.30 notice, were made in the booking room, after the defendant had been taken into custody, placed under arrest and asked to submit to a chemical test. Even though Officer Warner testified that he engaged in "a lengthy conversation down in the booking room," with the defendant after he was in custody, the People offered no evidence regarding the circumstances surrounding this conversation. Therefore, this Court cannot find that the People proved beyond a reasonable doubt that the subject statement was voluntarily made. Accordingly, the defendant's motion is granted and the post-arrest statements contained in the CPL 710.30 notice are suppressed.

All motions not granted herein are hereby denied. This opinion shall constitute the

Decision and Order of the Court.

ENTER.SO ORDERED.

This 21st day of February 2008________________________ [*7]

Albany, New YorkWilliam A. Carter

Albany City Court Judge