The People v. Jose Aviles

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 186

The People &c.,

Respondent,

v.

Jose Aviles,

Appellant.

Aleksandr B. Livshits, for appellant.

Stanley R. Kaplan, for respondent.

Make the Road New York, amicus curiae.

GARCIA, J.:

The New York City Police Department does not administer

physical coordination tests when a language barrier prevents the

administering officer from communicating the test instructions to

a non-English speaking suspect. Defendant Jose Aviles challenges

this policy, arguing that his equal protection and due process

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rights were violated because he was denied a coordination test on

the basis of a language barrier. We disagree, and hold that the

order of the Appellate Term should be affirmed.

I.

Factual Background

Defendant was arrested after striking a marked New York

City police vehicle that was entering traffic with its emergency

lights on. According to the arresting officer, defendant had "a

strong odor of alcohol on his breath," "slurred speech," and was

"swaying and unsteady on his feet." At the scene of the

accident, defendant made the following statement to the arresting

officer: "I had a few Coronas about 15 minutes ago, about 3

Coronas."

After he was arrested, defendant was brought to an

Intoxicated Driver Testing Unit (IDTU), where he consented to a

breathalyzer test. The test, which was administered nearly three

hours after the accident, resulted in a blood-alcohol content

reading of 0.06 -- a reading below the 0.08 minimum required for

a per se violation (Veh & Traf Law § 1192[2]). Defendant was not

given a physical coordination test. Instead, the IDTU Technical

Test Report contains a handwritten line crossing out the

"Coordination Test" portion of the report, as well as a

handwritten entry that reads: "No coord test given," and

"Language Barrier." Defendant was ultimately charged with

driving while impaired and driving while intoxicated (Veh & Traf

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Law §§ 1192[1], [3]).

Defendant moved to dismiss the misdemeanor information

on the ground that the NYPD violated his rights under the Equal

Protection and Due Process clauses of the federal and state

constitutions by failing to offer a physical coordination test on

the basis of a language barrier. Specifically, defendant argued

that, "while an English-speaking person arrested for driving

under the influence of alcohol would ordinarily receive" a

coordination test, defendant "was summarily denied this

opportunity because of the language he speaks."1 The People

opposed, contending that defendant was not denied equal

protection, and that defendant's due process rights were not

implicated by the NYPD's decision not to offer a coordination

test based on defendant's inability to speak or understand

English.

Criminal Court granted defendant's motion, holding that

the "failure to provide the defendant -- merely because he speaks

only Spanish -- with access to [] potentially exculpatory

evidence is a denial of his constitutional rights warranting

dismissal." Specifically, the court determined that "the failure

to administer the coordination test in this case constitutes a

1

The dissent's discussion of persons who are "limited

English proficient" or "LEP" was not raised before the trial

court and, in any event, is inapplicable to this case. The trial

court found -- and defendant has consistently maintained -- that

he "speaks only Spanish, and not English."

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denial of due process and equal protection" under both the United

States Constitution and the New York State Constitution. The

Appellate Term reversed, holding that a similar constitutional

challenge had recently been rejected by the Appellate Division

(People v Aviles, 47 Misc 3d 126[A] [1st Dept App Term 2015],

citing People v Salazar, 112 AD3d 5 [1st Dept 2013]).

A Judge of this Court granted defendant leave to appeal

(25 NY3d 1198 [2015]). We affirm.

II.

Equal Protection

Pursuant to the Fourteenth Amendment of the United

States Constitution, "[n]o state shall make or enforce any law

which shall . . . deny to any person within its jurisdiction the

equal protection of the laws (US Const amend XIV, § 1). The New

York Constitution provides for equivalent equal protection

safeguards (NY Const art I, § 11; see Hernandez v Robles, 7 NY3d

338, 362 [2006].

Alleged equal protection violations are primarily

evaluated using either a "strict scrutiny" or a "rational basis"

standard of review. Where governmental action disadvantages a

suspect class or burdens a fundamental right, the conduct must be

subjected to "strict scrutiny," and will be upheld only if the

government can establish a compelling justification for the

action (Regents of Univ. of Cal. v Bakke, 438 US 265, 299-300

[1973]). While "facially neutral conduct can constitute

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discrimination" against a suspect class in violation of equal

protection, such a claim "requires that a plaintiff show an

intent to discriminate against the suspect class" (Soberal-Perez

v Heckler, 717 F2d 36, 42 [2d Cir 1983]). Where a suspect class

or fundamental right is not implicated, the government action

need only be rationally related to a legitimate governmental

purpose (id. at 41).

Here, defendant's equal protection claim is premised on

the notion that the NYPD's policy of offering physical

coordination tests only in English amounts to intentional

discrimination on the basis of ethnicity or national origin. But

strict scrutiny is inapplicable to defendant's claim, as he has

not demonstrated that the challenged policy singles out members

of a suspect class, nor has he shown intentional discrimination.

While Hispanics as an ethnic group constitute a suspect class

(Keyes v School Dist. No. 1, Denver, 413 US 189, 197 [1973]), the

NYPD policy at issue is facially neutral and is not based on

race, ethnicity, or national origin. Rather, the policy is based

solely on a suspect's ability to speak and understand English,

which, by itself, does not implicate a suspect class (Soberal-

Perez, 717 F2d at 41). Nor has defendant demonstrated

intentional discrimination based on his ethnicity. To the

contrary, the record demonstrates that the officer's decision not

to conduct a coordination test was based solely on a

determination that a language barrier -- not defendant's

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ethnicity -- prevented the officer from administering the test.

The dissent contends that, where language "serve[s] as

a proxy for national origin, ethnicity, and race," a defendant

could establish intentional discrimination against a suspect

class sufficient to invoke strict scrutiny (dissenting op at 5-

8). We agree. To be sure, upholding the facial validity of the

NYPD policy does not preclude all challenges to the policy as

applied to a particular defendant where, for instance, the

defendant was denied a coordination test on the basis of his

ethnicity, as opposed to any language barrier. But that is not

the case before us. The instant case presents no evidence of

such intentional discrimination or other similarly compelling

circumstances. Nor is there any indication that defendant's

language was "treated as a surrogate" for his ethnicity or was a

mere "pretext for racial discrimination" (Hernandez v New York,

500 US 352, 371-372 [1991]). Rather, defendant has consistently

maintained that, as a non-English speaker, he "was summarily

denied this opportunity because of the language he speaks"

(emphasis added). The record supports the notion that the

decision not to administer a coordination test was a purely

language-based determination -- not a determination based on

race, ethnicity, or national origin. Accordingly, rational basis

review, rather than strict scrutiny, applies to defendant's equal

protection claim.

The challenged policy withstands rational basis review.

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Both the NYPD and the public have a substantial interest in

ensuring the reliability of coordination tests, and the clarity

of the instructions is crucial to the reliability of the results.

Indeed, the record makes clear that coordination tests are

designed not only to assess a suspect's "motor skills in

completing the specific tasks," but also to evaluate the

suspect's "capacity to [] follow instructions." But coordination

tests are uniquely ill-suited for administration via translation;

they are generally lengthy -- containing thirty lines of

instructions -- and require contemporaneous demonstration and

explanation of the tasks to be performed. The translation of

instructions cannot be delegated to a translator, as the

administering officer must have the requisite training and

experience, and must be able to understand the translated

instructions in order to accurately analyze the suspect's

responses. Moreover, given the time-sensitive nature of

coordination tests, requiring an administering officer to seek

out an appropriately trained translator could result in a delay

that affects the results (see Missouri v McNeely, 133 S Ct 1552,

1560 [2013] [noting that, "as a result of the human body's

natural metabolic processes, the alcohol level in a person's

blood begins to dissipate once the alcohol is fully absorbed and

continues to decline until the alcohol is eliminated"]). Indeed,

the value of physical coordination tests diminishes with the

passage of time, and test results eventually become entirely

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meaningless where they follow a prolonged delay. Nor can

instructions "simply be recited through a video tape," as the

tests require "specific clarity in instructions and

interactions." The NYPD policy therefore rationally furthers the

goals of avoiding delayed or erroneous results due to a language

barrier.

In addition, the NYPD undoubtedly has a substantial

interest in avoiding the heavy financial and administrative

burdens of employing translation services or multilingual

officers qualified to administer coordination tests in the myriad

languages spoken in this State. According to the record, New

York State residents speak 168 distinct languages and countless

dialects. Requiring the administration of translated

instructions to all intoxicated driving suspects statewide would

impose an exorbitant cost that would have a "crippling impact" on

the State, as detailed in the record. The dissent's contention

that "the NYPD has language access protocols in place and

resources available to address the needs of New York City's

linguistically diverse communities" (dissenting op at 1-2) is

unsupported by the record and ignores the realities of physical

coordination tests, which require precise instructions and prompt

administration.2 Nor does the dissent identify which particular

2

The dissent exempts defendant from the preservation rule

and opts to "take judicial notice" of "publicly-available

documents" in order to bolster arguments that defendant asserts

for the first time on appeal (dissenting op at 10). We decline to

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languages are "most often in demand" such that translation

services should be required (dissenting op at 11).

Each of the rationales established by the purportedly

"thin" record (dissenting op at 10) independently supplies a

legitimate government interest that is furthered by the NYPD

policy. Of course, "New York City's commitment to access to

justice regardless of language status" is a laudable and worthy

goal (dissenting op at 2). And the City's "recognition of the

needs of its diverse communities" is undoubtedly embodied in the

various Executive Branch letters, reports, and policies cited by

the dissent (dissenting op at 6-10). But we do not measure

constitutional violations against these policies, nor do they

somehow give rise to an equal protection violation. Under our

established constitutional analysis, we conclude that the

challenged NYPD policy is rationally related to a number of

legitimate governmental purposes.3

Accordingly, because the NYPD policy withstands

rational basis review, defendant's equal protection claim must be

rejected.

do the same.

3

The dissent limits its analysis to the context of New York

City. But our constitutional pronouncements apply statewide,

including to areas with dramatically different resources, law

enforcement practices, populations, and "linguistic needs"

(dissenting op at 11). The dissent's analysis would call into

question investigatory tools employed by law enforcement

statewide.

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III.

Due Process

Under the United States Constitution, "[n]o person

shall be . . . deprived of life, liberty or property without due

process of law" (US Const amend V). The New York Constitution

provides for similar protections (NY Const art I, § 6) and "[w]e

have at times found our Due Process Clause to be more protective

of rights than its federal counterpart" (Hernandez, 7 NY3d at

362). Due process is, of course, a flexible concept that calls

for such procedural protections as the particular situation

demands (Mathews v Eldridge, 424 US 319, 334 [1976]).

"Determining whether additional process is due in any particular

proceeding requires balancing the interests of the State against

the individual interest sought to be protected" (People v Ramos,

85 NY2d 678, 684 [1995], citing Mathews, 424 US at 334).

Defendant contends that the NYPD's failure to offer him

a coordination test based on a language barrier violated his due

process rights under the federal and state constitutions.

However, as an initial matter, the police have no duty to assist

a defendant in gathering evidence or establishing a defense

(People v Finnegan, 85 NY2d 53, 57 [1995]). Nor does a defendant

have a right to have the police perform a certain investigative

step simply because it may yield information that is helpful to

him (Arizona v Youngblood, 488 US 51, 58-59 [1988]; People v

Hayes, 17 NY3d 46, 51-52 [2011]). And, while defendants have a

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constitutional due process right to a qualified interpreter

during judicial proceedings (People v Ramos, 26 NY2d 272, 274

[1970]), the same right is not implicated during the pre-arrest

investigation of suspected intoxicated driving; the

administration of coordination tests -- a discretionary,

investigative technique designed to gather evidence of

intoxication -- is not a judicial, quasi-judicial, or

administrative proceeding.

In any event, as discussed above, the implicated State

interests are substantial. The State has a clear interest in

avoiding the cumbersome and prohibitively expensive

administrative and fiscal burdens of providing the requested

translation services. The State also has a strong interest in

ensuring the accuracy of physical coordination tests, and the use

of translated instructions -- either through qualified

interpreters or through multilingual officers -- could compromise

the test's reliability. Given the substantial State interests

involved, defendant's due process claim must be rejected.

IV.

Accordingly, the order of the Appellate Term should be

affirmed.

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People v Jose Aviles

No. 186

RIVERA, J.(dissenting):

Defendant Jose Aviles claims the New York Police

Department violated his federal and state equal protection and

due process rights when it denied him a physical coordination

test based solely on his language skills. The People defend the

NYPD policy of offering the coordination test to everyone except

those persons who are perceived to be non-proficient in English1

on the grounds that it ensures the reliability of the test and to

1

For purposes of clarity and uniformity, I have adopted the

parties' description of persons denied the coordination test as

"non-English proficient" or "limited English proficient" (LEP).

The Equal Access to Human Services provision of New York City's

Human Rights Law defines a LEP person as "an individual who

identifies as being, or is evidently, unable to communicate

meaningfully with agency or agency contractor personnel because

English is not [the individual's] primary language" (NYC Admin

Code § 8-1002 [o]). Though the majority characterizes defendant

as not being a LEP individual because of the nisi prius court's

determination that he speaks "only Spanish, and not English" (maj

op at 3, n 1), defendant clearly falls within New York City's

understanding of a LEP individual.

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do otherwise is administratively impracticable and burdensome.

These representations are inadequate to overcome a policy that

potentially places certain individuals in a better position than

others to defend against criminal charges, especially when the

NYPD has language access protocols in place and resources

available to address the needs of New York City's linguistically

diverse communities. Given New York City's commitment to access

to justice regardless of language status, the NYPD's refusal to

administer a coordination test equally to all violates

defendant's federal and state equal protection rights. For these

reasons, I dissent.

I.

Defendant was charged with operating a motor vehicle

while under the influence of alcohol or drug in violation of

Vehicle & Traffic Law §§ 1192 (1) and (3). Defendant was

arrested after he collided with a police vehicle pulling out of a

precinct as defendant drove down the street. According to the

arresting officer, defendant smelled of alcohol, his speech was

slurred, and he was unsteady on his feet. Upon his arrest

defendant was taken to the Intoxicated Driver Testing Unit (IDTU)

at the 45th Precinct in the Bronx,2 where he took a breathalyzer

2

The only issue before the Court is the constitutionality of

the unofficial NYPD policy to withhold the coordination test from

LEP individuals at New York City IDTUs. These IDTUs are unique to

New York City, as the officers in all other municipalities in the

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test which indicated a blood alcohol content (BAC) of .06, which

was below the legal minimum for a per se violation.

Ordinarily, the IDTU would have offered defendant the

opportunity to take a physical coordination test, as provided in

the NYPD DWI Patrol Guide (Guide). The coordination test

requires an arrestee to complete a series of simple tasks:

reciting the person's name and address, standing straight-up with

eyes closed, walking heel-to-toe for nine steps and turning to

walk back to the starting point, standing on one leg, pointing to

the tip of the nose with an index finger, and writing their

signature or address. Pursuant to the Guide, an officer will

typically demonstrate the tasks before asking the arrestee to

complete them. Here, defendant was denied the test based on the

basis of what the test administrator cursorily identified as a

"language barrier."

Defendant moved to dismiss the accusatory instrument on

the grounds that NYPD violated his federal and state equal

protection and due process rights by failing to offer the test

based on his language. The People opposed the motion, arguing

both that NYPD has a legitimate interest in avoiding possible

confusion by withholding the coordination test from non-English

state conduct sobriety tests roadside. Accordingly, the use of

the IDTUs creates different expectations of NYPD, as NYPD

officers have additional resources available to them for the

processing of drunk drivers. Accordingly, I limit my analysis to

the NYPD policy at IDTUs.

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speakers and that defendant cannot have a due process interest in

an investigatory procedure.

The nisi prius court stated that in the past it had

addressed similar language-based claims by permitting defense

counsel to cross-examine the People's witnesses on the failure to

administer the test and providing an adverse inference charge

regarding the Police failure to administer the test. However, in

this case, the court granted the motion, concluding that where

defendant's BAC was "so very low," denial of the coordination

test "merely because he speaks only Spanish" violated his

constitutional rights by failing to provide him with access to

potentially exculpatory evidence. The court noted that under

these circumstances "the trier of fact [] is likely to have a

heightened interest in seeing a video memorializing the

defendant's abilities."

The Appellate Term, First Department, reversed on the

basis of People v Salazar (112 AD3d 5 [2013]), decided after the

nisi prius court granted defendant's motion and before the People

appealed, and which rejected similar constitutional challenges to

the NYPD's policy of administering the coordination test only in

English. A judge of this Court granted defendant leave to appeal

(People v Aviles, 25 NY3d 1198 [2015]).

II.

Defendant renews his constitutional challenges to

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NYPD's policy, and the People reassert that the policy is non-

discriminatory and that it would be burdensome and unfeasible to

administer the test other than in English. Defendant's equal

protection claim has merit because the People's basis for denying

him the test has no rational basis on the facts of this case.

Under both federal and state equal protection

guarantees, government action that disadvantages a suspect class

or burdens a fundamental right is subject to strict scrutiny and

upheld only if there is a compelling justification for the action

(Johnson v California, 543 US 499, 505 [2005]; Aliessa ex rel.

Fayad v Novello, 96 NY2d 418, 431 [2001]). A facially neutral

policy is also subject to strict scrutiny if the government's act

has a disparate impact on a suspect class, so long as the

discrimination is intentional (Washington v Davis, 426 US 229,

239 [1976]). Otherwise, government action is subject to the

rational basis standard of review, which requires that the action

be rationally related to a legitimate governmental purpose

(Board of Trustees of Univ. of Ala. v Garrett, 531 US 356, 367

[2001]; see also Maresca v Cuomo, 64 NY2d 242 [1984]).

Here, defendant claims that he was discriminated

against based on a suspect classification because the NYPD policy

categorizes arrestees based on language, which defendant claims

serves as a proxy for his national origin, a recognized suspect

classification under both federal and state equal protection

jurisprudence. In response, the People maintain that the test is

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neutral on its face because a person of any national origin who

understands English may take the test.

In Soberal-Perez v Heckler (717 F2d 36 [2d Cir 1983],

cert denied 466 US 929 [1984]), decided in 1983, the Second

Circuit stated that "language, by itself, does not identify

members of a suspect class." That case involved a challenge to

the Department of Health & Human Services policy of sending

agency forms in English. The court applied rational basis

review, holding that the Department had a legitimate interest in

providing its forms only in English because the government

conducts its affairs in English and "those who wish to become

naturalized United States citizens must learn to read English"

(id.)

However, since the Soberal-Perez decision, our nation's

understanding of the role language plays in our multi-ethnic

society has evolved. In Hernandez v New York, a case involving a

prosecutor's peremptory challenges to Latino Spanish-speaking

prospective jurors, the United States Supreme Court recognized

that "it may well be, for certain ethnic groups and in some

communities, that proficiency in a particular language, like skin

color, should be treated as a surrogate for race under an equal

protection analysis" (500 US 352, 372 [1990] [internal citations

omitted]). Indeed, a policy that affects all persons who speak a

given language "without regard to the particular circumstances"

of the surrounding events and individuals, may be found "to be

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pretext for racial discrimination" (id. 371-372).

The judiciary is not alone in recognizing that language

may serve as a proxy for national origin, ethnicity, and race.

The Executive Branch has also acknowledged a link between

language and discrimination and issued Executive Order 13166 on

August 11, 2000 ("Improving Access to Services for Persons with

Limited English Proficiency") to ensure compliance with Title

VI's statutory prohibition against discrimination based on

national origin in federally funded programs (42 USC § 2000d).

To achieve its goal "to improve access to federally assisted

programs and activities for persons who, as a result of national

origin, are limited in their English proficiency" (65 Fed Reg 50,

121 [Aug 11, 2000]), the Executive Order requires federally

assisted programs to draft guidance documents on how those

programs will operate in a manner that is consistent with both

Title VI and the Department of Justice's regulatory instructions.

The Department of Justice has provided guidance on

Executive Order 13166, and helped municipalities to comply with

Title VI and its implementing regulations (e.g. Office of the

Attorney General, Federal Government's Renewed Commitment to

Language Access: Obligations Under Executive Order 13166 [Feb 17,

2011]; US Department of Justice, Civil Rights Division, Language

Access Assessment and Planning Tool for Federally Conducted and

Federally Assisted Programs [May 2011]). The Department of

Justice has made clear that criminal suspects and other persons

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in police custody are entitled to Title VI protections during

encounters with police (2002 Title VI Guidance, 67 Fed Reg

41,455, 41,459 [June 18, 2002]). It has further directed that

recipients of federal funds subject to Title VI must take

"reasonable steps to ensure meaningful access to their programs

and activities by [limited English Proficient] persons" (id.).3

The limited view of the interrelationship of language,

ethnicity, and national origin as articulated in Soberal-Perez,

does not represent today's nuanced appreciation of how language

historically affects access to justice for groups based on

national origin. With an eye to this continued reality, the

Court should safeguard against the use of English-only policies

because "[t]he dominant cultural group can manipulate language as

a device for exclusion of disfavored groups whose mother tongue

is not English" (Kiyoko Kamio Knapp, Language Minorities:

Forgotten Victims of Discrimination?, 11 Geo Immigr LJ 747, 752-

753 [1997]).

3

In the Title VII context, the Equal Employment Opportunity

Commission (EEOC) has acknowledged the interconnectedness of

language and national origin, and that neutral language policies

can mask discriminatory animus and disparate treatment. As such,

the EEOC guidelines broadly define national origin discrimination

to include "linguistic characteristics of a national origin

group" for the purposes of Title VII enforcement (29 CFR §

1606.1). The EEOC further advises employers that "[t]he primary

language of an individual is often an essential national origin

characteristic" (id. § 1606.7). Relatedly, the Southern District

of New York has recently applied the EEOC's interpretation to

hold that an English-only policy in the workplace violated Title

VII's prohibition on national origin discrimination (EEOC v

Sephora USA, LLC, 419 F Supp 2d 408 [SDNY 2005]).

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Notably, compliance with legal mandates as a means for

equal treatment of all members of our multilingual society can be

realized through the government's use of technological advances

and increased human resources that address linguistic needs and

simultaneously contain costs. This is especially true in New

York City, where the population of limited English speakers is

nearly two million people (New York City Mayor's Office of

Immigrant Affairs, Constituent Facts & Maps). In recognition of

the needs of its diverse communities and of its legal

obligations, New York City has issued an Executive Order

directing its agencies to provide language services in compliance

with Title VI (Exec Order 120, Citywide Policy on Language Access

to Ensure the Effective Delivery of City Services [July 22,

2008]; see also NYC Mayor's Office of Operations, Language Access

Services Initiative). NYPD also developed a Language Access Plan

and issued internal procedures that govern law enforcement

service provision to persons who are not fluent in English (New

York Police Department, Language Access Plan [June 14, 2012]; New

York Police Department Patrol Guide, Procedure No: 212-90,

Guidelines for Interactions with Limited English Proficient [LEP]

Persons). NYPD's official Language Access Plan encourages

officers either to use a multi-language telephonic service known

as "Language Line"4 to handle most of its interpretation needs,

4

Language Line is a private company that provides on-demand

interpretation through the telephone, 24-hours a day. People in

need of interpretation call in to connect with an interpreter,

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or to contact officers that are certified through NYPD's Language

Initiative Program, which trains NYPD officers in critical

languages (Language Access Plan at 4-5). Comparatively, NYPD's

Patrol Guide prompts officers to rely on other officers who self-

identify as bilingual (Guidelines for Interactions with Limited

English Proficient [LEP] Persons at 1).5

This deliberate application of language services

applies to the IDTU, where, for example, consent to administer

the breathalyser test is obtained by a video in Spanish (see

People v Salazar, 112 AD3d 5, 7-8 [1st Dept 2013] [explaining how

officers obtain consent to administer the breath test using an

interpretive video]; People v Rosario, 136 Misc 3d 445, 447-448

who can immediately facilitate a conversation between two or more

people who do not speak the same language (Language Line

Solutions, Phone Interpreting, https://www.languageline.com

/interpreting/phone [last accessed Nov 10, 2016]).

5

The record on appeal is thin, and the People failed to

submit any information about NYPD's language resources. Yet,

defense counsel submitted NYPD's Language Access Plan, NYPD's

field guide for serving LEP individuals, and other supporting

documents, all of which the Court is permitted to take judicial

notice (see Affronti v Crosson, 95 NY2d 713, 720 [2001]). Thus,

the majority's contention that there is no record support for the

claim that NYPD is equipped to interact with LEP individuals is

false, as these publicly-available documents indicate that NYPD

both intends to and is capable of doing so.

Contrary to the majority's assertion, defendant preserved

his claim that NYPD's policy of denying the test based on

language is unconstitutional because NYPD is capable of providing

interpretative services. Therefore, it is wholly proper and

prudent to consider all public documents regarding both NYPD's

and the City's linguistic resources (see Affronti, 95 NY2d at

720).

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[Bronx County Crim Ct 1987] [same]). Similarly, NYPD has

previously relied on bilingual officers to deliver the

instructions on how to take the breathalyser test (see Salazar,

112 AD3d at 8).

Given New York City's commitment to language access and

the resources available to the NYPD, the policy here does not

survive even rational basis review. Furthermore, the NYPD policy

is not rationally related to a legitimate governmental purpose

for the separate reason that by denying defendant the test, NYPD

forfeits an opportunity for the People to gather evidence of

intoxication. If, as the People claim, the ultimate goal is to

ensure the safety of our roadways, the policy falls short.6

Nevertheless, the People maintain that the policy is

rationally related to its interest in ensuring the reliability of

the coordination test. According to the People, the test can

only be administered by a specially trained officer who cannot

rely on any type of interpreter service to communicate the test

instructions to the arrestee. The accuracy of this assertion is

neither intuitive nor obvious, and the People failed to present

6

The majority contends that NYPD's goal in withholding the

test is "avoiding delayed or erroneous results due to language

barrier" (maj op at 8). Contrary to this assertion, the NYPD

policy does not rationally further any legitimate goal, as NYPD

has the available means for immediate and accurate interpretive

services that would eliminate both the delay in testing and the

potential for error. The majority's claim that the NYPD goal is

to avoid detrimental results is unsupported by the record because

there is no factual or scientific basis propounded by defendant

for such a claim.

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evidence in support of their claim that there is no other way to

maintain the integrity of the test, or that they are unable to

deploy test administrators fluent in the languages most often in

demand.7 More troubling is that the only source of this

information about the difficulty in administering the

coordination test is contained in an prosecutor's affirmation,

submitted to the nisi prius court in opposition to defendant's

motion to dismiss. The People provided no evidence to support the

contention that the coordination test is difficult to administer,

but instead ask this Court to credit their claims. Despite the

majority's uncritical acceptance of the People's mantra that they

cannot administer this test in a language other than English, we

must decline the People's invitation to take them at their word.

Indeed, where defendant's constitutional rights are at stake, our

review of the policy and the People's reasons should be

especially punctilious.

7

I need not define the most in demand languages, despite

the majority's suggestion otherwise (maj op at 9), because there

is governmental consensus in New York City about its population's

linguistic needs. NYPD's Language Access Policy identifies its

"baseline languages" as Spanish, Chinese, Korean, Haitian Creole,

Russian and Italian (New York Police Department, Language Access

Plan at 10 [June 14, 2012]). The New York City Human Rights Law

mandates that all City services and documents be provided in the

same "covered languages" (NYC Admin Code §§ 8-1001, 8-1003).

Executive Order 120 also requires that all of New York City's

services be provided in these six languages (City of New York

Office of the Mayor, Executive Order 120, Citywide Policy on

Language Access to Ensure the Effective Delivery of City Services

[July 22, 2008]). Thus, the city government has identified those

languages most spoken.

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- 13 - No. 186

The People's arguments are also unpersuasive because

the NYPD's own Language Access Plan for serving LEP individuals

provides for a different result, and a close examination of the

coordination test belies the claim. The physical coordination

test involves no mechanical or technical manipulation and depends

only on telling the person to make certain physical movements.

The People fail to explain why the same mechanisms available to

instruct in a language other than English on the rights and the

use related to the breathalyzer test cannot be employed or

modified for purposes of the coordination test. Indeed, the

instructions for the coordination test are far more simple than

those required to obtain consent to perform the breathylzer test.

The coordination test is comprised of short, declarative

statements that can easily be translated, e.g. "touch your nose

with your forefinger" (toque su nariz con el dedo), "walk in a

straight line" (camine en linea derecha), or "raise your right

leg" (levante la pierna derecha). The People's argument

contradicts common sense.8

8

The majority's characterization of this test as difficult

to administer is based on an affirmation of an Assistant District

Attorney. However, the People failed to submit either evidence

from an experienced administrator who has first-hand knowledge

about the test's complexity or expert linguistic testimony

concerning the need for instruction to be provided solely by the

test administrator in English. Absent such evidence, the People's

"proof" is but a shell. Yet, the majority adopts the People's

argument while disregarding that NYPD has a variety of tools it

can use to administer this test in a manner that does not violate

defendant's constitutional rights.

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- 14 - No. 186

The fact is that NYPD already does far more to address

language barriers in the field, where access to a bilingual

officer or an interpreter is less controlled. Despite the

challenges, the official NYPD policy requires officers to make

efforts to communicate with LEP individuals out of recognition of

"the importance of effective and accurate communication between

its employees and the community they serve."9 Accordingly, NYPD

does not have a legitimate interest in maintaining its current

policy and its denial of the test to defendant violated his

rights to equal protection under the law.10

III.

It is beyond cavil that the criminal justice system

cannot advance procedures that benefit certain individuals but

disadvantage others. Yet, the majority approves a system of

justice in which English speakers are given access to potentially

exculpatory evidence in DWI cases, while the same beneficial

9

The NYPD has long been on notice that failing to address

language needs is a violation of Title VI disparate impact

regulations, based on national origin. In 2010, the Department

of Justice issued a report in which it informed NYPD that it was

not in full compliance with Title VI. The report indicated that

officers frequently departed from NYPD's internal policy when

interacting with LEP individuals because NYPD did not provide

sufficient translation services. NYPD responded by updating its

Language Access Plan.

10

Since defendant has established a meritorious equal

protection challenge, I have no occasion to address his due

process claim.

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- 15 - No. 186

process is denied to those whose English language skills are

limited due to their national origin. Such diminished treatment

under the law is unconstitutional and counter to our

sensibilities of fairness. It is especially unacceptable where

the means to ensure equality are within reach.

For the reasons I have explained, I would reverse the

Appellate Term and dismiss the accusatory instrument. Therefore,

I dissent.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Garcia. Chief Judge DiFiore

and Judges Pigott, Abdus-Salaam and Stein concur. Judge Rivera

dissents in an opinion in which Judge Fahey concurs.

Decided November 22, 2016

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