People v Dwyer

[*1] People v Dwyer 2005 NY Slip Op 51135(U) Decided on July 21, 2005 Watertown City Court Harberson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 21, 2005
Watertown City Court

The People of the State of New York, Plaintiff,

against

Derek J. Dwyer, Defendant.



34448



Jefferson County District Attorney

175 Arsenal Street

Watertown, NY 13601

By: Dylan T. Tester, Assistant District Attorney

for plaintiff.

Doldo & Neddo, P.C.

230 Franklin Street

Watertown, NY 13601

By: Anthony M. Neddo, Esq.

for defendant.

James C. Harberson, J.

The defendant was arrested and charged with multiple violations of the Vehicle and Traffic Law for driving while ability impaired by drugs, aggravated unlicensed operation of a motor vehicle in the second degree, failing to stop for a red light, and three counts of failing to stop at a stop sign. The defendant was also charged with a violation of the Penal Law for unlawful possession of marijuana. The defense filed an omnibus motion seeking relief under several theories. They alleged that the defendant was arrested without probable cause for the driving while ability impaired by drugs charge, that a Drug Recognition Expert (DRE) report was needed to support the charge, that the accusatory instrument was defective on its face pursuant to CPL 170.35, and that the People had not properly declared readiness for trial because the misdemeanor complaint was not converted to an information.

[*2]I.Facts

Officer McCarthy testified that on February 11, 2005, she was on a routine road patrol when she observed a red Dodge Neon fail to make a complete stop at a stop sign. She followed the vehicle and saw it roll through two more stop signs and a red light. At that point, the vehicle pulled into the first driveway it came to and she saw the driver climb from the driver's seat into the reap passenger seat. When Officer McCarthy approached the vehicle, the defendant opened the rear driver's side door where he was then sitting. When asked if he had engaged in the seat switching because his license was still suspended, the defendant responded affirmatively.

There were two other individuals in the vehicle, and so Officer McCarthy asked the defendant to step out and she sat him in the back of her patrol car. Officer McCarthy testified that while she spoke to the passengers, she noticed a strong smell of marijuana emanating from the vehicle. Lieutenant Derrigo arrived as back-up, and testified that as he approached the vehicle stop he walked over to the patrol car where the defendant was sitting. He opened the door and saw a baggie in the defendant's hand. He told Lt. Derrigo that he was getting it out to give to Officer McCarthy, and handed the baggie over.

Finding that his license was indeed suspended, the defendant was placed under arrest and taken to the police station for a violation of VTL 511(1)a. While processing him, Officer McCarthy observed that his mouth was dry, his eyes were dilated, and there was a pale green haze on his tongue. She then performed several field sobriety tests on the defendant, and he failed all four of them. At that point, a breathalyzer was performed which resulted in a .00 reading. Because this indicated that alcohol was not a factor, she asked the defendant for a urine sample which he provided.

Officer McCarthy also performed a field test on the substance in the baggie that the defendant had in his possession at the time of his arrest. The field test, which she testified she was trained and certified to perform, was positive for marijuana. After being given his Miranda warnings, the defendant admitted to having smoked marijuana, but stated that it had been at around 3:00 in the afternoon when he did so. His arrest occurred around 8:00 that evening, and it was approximately an hour after that when he failed the coordination tests. Officer Gatch assisted in processing the defendant, and he performed a horizontal gaze nystagmus (HGN) test on the defendant's eyes. He testified that based upon his training to conduct the test, the "jerking" of the eyes he saw indicated the effects of marijuana. Believing that he was under the influence of marijuana, Officer McCarthy cited the defendant for a violation of VTL 1192(4).

II.Decision

This court finds that there was probable cause for the defendant's arrest, and also finds that the People filed a facially sufficient information within the statutory speedy trial period. Accordingly, the defense motion is denied on all counts.

A.Probable Cause for Arrest

In People v. Robinson, the Court of Appeals held that "where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article I, § 12 of the New York State Constitution." 741 N.Y.S.3d 147, 149-52 (NY 2001). The court went on to state that "[i]n making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable [*3]traffic officer would have done under the circumstances is relevant." Id. at 151. In allowing pretextual stops, the court in Robinson allowed an officer to stop a vehicle after witnessing a valid traffic infraction, regardless of whether the officer's primary motivation was to conduct some other investigation. Id.

Once a vehicle has been stopped, there are limitations on what actions a police officer may take. As noted in People v. Banks, "[a] traffic stop constitutes a limited seizure of the person of each occupant. For a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance." People v. Banks, 626 NYS2d 986, 987-88 (NY 1995). As the court observed in People v. Alvarez, however, "[i]t is well established that police officers face an inordinate risk when approaching a person seated in an automobile, a risk rendered no less perilous by the fact that the approach was occasioned by an apparent traffic infraction." 308 AD2d 184, 185-88 (1st Dept. 2003). The court in People v. Robinson further stated that police officers may direct a driver to exit his vehicle out of concern for their safety, "even though they lack any particularized reason for believing the driver possesses a weapon." 74 NY2d 773, 774-75 (NY 1989).

In a case dealing specifically with a traffic stop and subsequent arrest for marijuana possession, the court in People v. Terrero upheld the defendants conviction. 139 AD2d 830, 830-32 (3d Dept. 1988). The defendant was initially stopped for speeding, and when the officer approached the vehicle he "detected a strong odor of marijuana inside the vehicle and also observed a partially burnt marijuana cigarette in an ash tray." Id. at 830. The court found that "the circumstances here provided probable cause that defendant was driving under the influence of marihuana, a misdemeanor. It follows that the Trooper was authorized to arrest and search defendant under the prevailing circumstances." Id. at 831-32. Some courts have even stated that "[t]he strong distinct smell of marijuana, standing alone with nothing more, is a sufficient basis for 'probable cause' of criminal activity." 7/21/2003 N.Y.L.J. 23, (col. 1).

In this case, Officer McCarthy testified that she saw the defendant driving a vehicle that committed several violations of the Vehicle and Traffic Law. At that point, she had probable cause to stop the vehicle. When the defendant quickly parked the vehicle and jumped into the back seat, this probable cause would have been even stronger. The defendant also admitted that he climbed into the back seat because he did not have a valid license, which would further strengthen the probable cause for the initial arrest. When Officer McCarthy stopped the vehicle, she was alone and there were three people in the car. Therefore, asking the defendant to go and sit in the back of her police car was reasonable under the circumstances for safety concerns.

Upon taking the defendant to the police station for processing on the 511 charge, Officer McCarthy further noted that the defendant had a dry mouth, dilated eyes, and a pale green haze on his tongue. Based upon this, she asked the defendant to take field sobriety tests which he consented to do. Failing those, she administered a breathalyzer test and then requested a urine sample when alcohol was ruled out as a cause of his impairment by the .00 reading in the test. In first noticing the signs she had been trained to recognize for marijuana impairment and then watching the defendant fail several sobriety tests for coordination, Officer McCarthy had probable cause to believe that the defendant had operated a motor vehicle while his abilities were impaired by a drug. The fact that the defendant possessed marijuana at the time of his arrest, [*4]that both he and the vehicle he was driving smelled of marijuana, and that he admitted to having smoked marijuana earlier in the day further support the probable cause for the charge. Like in Terrero, here the totality of the circumstances surrounding the stop provide probable cause for the VTL 1192(4) charge.

B.Scientific Tests and a DRE Report

The defense contention that it was not aware of scientific tests in this matter is groundless, as it is clearly noted in the People's 710.30 notice and in the police reports. As a result, the urine sample should not be suppressed. The defense assertion that a trained Drug Recognition Expert (DRE) was needed in order to arrest the defendant for driving while ability impaired by drugs is also meritless. The defense seems to be arguing that a full DRE evaluation is essential to a successful prosecution under 1192(4) in order to show the identity of the drug causing the impairment. However, the case cited by the defense does not support that assertion. In People v. Rose, the court did determine that the "failure to have referred to, summarized, or annexed the drug influence evaluation to the supporting deposition render[ed] the accusatory instrument dismissible." 794 NYS2d 630, 631-36 (Dist. Ct., Nassau County 2005). However, that case is distinguished from the case at bar because there the DRE report was being used to show what drug the defendant had ingested in lieu of a chemical analysis or admission. See Id. at 631 (noting that some courts have held opinion testimony from police trained as drug recognition experts on the identity of the drug causing the impairment to be admissible).

In this case, the People are not relying on a DRE report to identify the drug that caused the impairment. Rather, there is a field test identifying the substance as marijuana, an admission of smoking marijuana, and a strong smell of marijuana coming from the vehicle and from the defendant himself. There would be no reason to have had a DRE officer prepare a report in this situation to say the same, and in any event Officer McCarthy testified that she was trained to identify both the drug in question and the signs of impairment from using it.

C.Facial Sufficiency and Readiness for Trial

As the Court of Appeals stated in People v. Alejandro, for an information to be facially sufficient it "must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case." 70 NY2d 133, 135-38 (NY 1987). The court further explained that "every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations." Id. at 138. A jurisdictional defect, the absence of facial sufficiency is grounds for dismissal of an accusatory instrument, even after a conviction at trial. Id. at 135.

As set forth in People v. Kahn, in order to prove that a defendant violated VTL 1192(4) the People must show the following elements of the crime:

(1) The defendant ingested a drug.

(2) The drug ingested by the defendant is one proscribed by Public Health Law § 3306.

(3) After ingesting the drug, the defendant operated a motor vehicle.

(4) While operating his motor vehicle the defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug. 160 Misc2d 594, 598 (Dist. Ct., Nassau County 1994).

Under Alejandro, for the People to have filed a facially sufficient information they must [*5]have supported each of the four elements from Kahn with nonhearsay factual allegations. With a defense challenge to facial sufficiency, the court must view the facts in the light most favorable to the People. People v. Gibble, 2 Misc 3d 510, 512 (Crim. Ct., NY County 2003). The defense has argued that "nowhere is it alleged that Defendant was impaired by drugs that are proscribed by the Public Health Law in order to allow a prosecution [n]or was there any mention that Defendant ingested a proscribed drug [nor] was there mention of Defendant having operated a motor vehicle after ingesting a proscribed drug." However, the defense is ignoring the fact that the accusatory instrument itself does not need to allege all of the elements. Rather, the factual allegations from any supporting depositions or other filings that together satisfy the requirements for an information are to be considered as well. See NY Crim. Proc. Law § 100.40 (McKinney 2005) (stating that the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, are to be considered).

In this case, the defendant admitted to having smoked marijuana, marijuana is listed in Public Health Law § 3306, and after smoking marijuana the defendant operated a motor vehicle. The first three elements of Kahn are thus easily satisfied by the defendant's admissions and by the observations of Officer McCarthy in the arrest report.

As to the fourth element, the defense has argued that "the Accusatory Instrument is defective because the arresting officer cannot allege Defendant was under the influence of drugs since he is not a Drug Recognition Expert." The defense cites no case law for the proposition, and this court disagrees. As the Court of Appeals stated in People v. Swamp, a drug possession case, "prima facie evidence of the presence of a controlled substance need not be based on expert testimony. All that is required is a 'reliable basis' for inferring such presence. The opinion of a layperson unsophisticated about drugs does not meet that standard. Officer Stephenson was not a layperson—he had extensive familiarity with drugs and special training in handling and identification of controlled substances." 84 NY2d 725, 728-33 (NY 1995).

In People v. Cruz, the court noted that "the concept of intoxication does not require expert opinion. A layman, including the defendant and those charged with administering the law, should be able to determine whether the defendant's consumption of alcohol has rendered him incapable of operating a motor vehicle as he should." 423 NYS2d 625, 626-30 (NY 1979). Similarly, in another Court of Appeals case, it was stated that "[w]e also reject respondent's argument that the undercover officer's assertions of expertise in the supporting deposition were conclusory and insufficient, as a matter of law, to constitute prima facie evidence of possession of heroin." Matter of Angel A., 92 NY2d 430, 434-35 (NY 1998).

The court in People v. Ortiz stated that "unlike the symptoms of intoxication, which are universally recognizable, the effects of any particular drug or class of drugs listed in Public Health Law § 3306 are not necessarily uniform in the way they affect an individual's appearance." 6 Misc 3d 1024A, 1024A (Crim. Ct., Bronx County 2004). Rejecting the idea that the "officer's observations, standing alone, are sufficient to provide reasonable cause to believe defendant was under the influence of a drug," the court concluded that "[b]arring defendant's admission, only a laboratory analysis can provide the threshold facts to show defendant ingested a drug. Any other interpretation would allow a non-expert to speculate as to which drug was ingested by defendant." Id.

Although the court in Ortiz did find that an officer's observations alone would be insufficient to show a defendant under the influence of a drug, that case is distinguishable from [*6]the case at bar. In Ortiz, the defendant did not have marijuana in his possession, neither he nor his vehicle smelled of marijuana, he did not admit to having smoked marijuana at some time on the day in question, and he did not fail several sobriety tests for coordination. Even without the laboratory analysis, this court can find no reason why the officer's observations of these facts would not be sufficient to show that a defendant was under the influence of marijuana. Officer McCarthy testified about her training in detecting marijuana impairment, and while certainly the effects of all drugs listed in Public Health Law § 3306 are not "universally recognizable," the effects of marijuana certainly are. Officer McCarthy testified that she was trained to look for a pale green haze on the tongue, dilated eyes, and a dry mouth. Added to that was the smell of marijuana coming from the defendant's vehicle and person.

This court finds that considering the rampant use of marijuana in all venues and in all levels of society as a result of an unrelenting effort of the "Woodstock" generation's proselytizing the legalization of this "ditch weed" as it was historically known in the South through the media, the educational institutions and open public use, the average lay witness can be said to be competent to identify marijuana and its effects on one who inhaled it on an equal basis with the average lay witness who "is competent to testify that a person appears to be intoxicated [by alcohol] when such testimony is based on personal observation and consists of a description of the person's conduct and speech." Rivera v. City of New York, 253 AD2d 597, 597-600 (1st Dept. 1998). As in the case of alcohol where a lay witness, once qualified, can give an opinion whether another person is impaired and/or intoxicated, so too a lay witness, once qualified, may give an opinion whether another person is impaired due to the use of marijuana.

This court can find no way to distinguish the intoxication from alcohol in Cruz from the impairment by marijuana in this case. There is no reason why the officer's testimony about the defendant's condition should not be sufficient not only for facial sufficiency under Alejandro but also to survive a trial order of dismissal and allow the jury to decide on the impairment issue. While there certainly may have been a time when expert opinion might have been necessary to establish impairment from marijuana, just like it used to be necessary to show intoxication from alcohol, that time has passed. In today's world, there is no reason why the observations of a qualified lay witness should not be sufficient to show impairment from marijuana. Like in Swamp, the observations of a qualified lay witness who is not "unsophisticated about drugs," provide a "reliable basis" to show the impairment of the defendant.

Although not essential to the disposition of this case, when dealing with the possession of marijuana this court agrees with the court in People v. VanHoesen when they stated that "[u]nder our interpretation of Swamp, the People had legally sufficient evidence to proceed to trial when they indicated their readiness, namely, the testimony of the arresting officer and positive field test results, and the fact that formal laboratory results were not obtained until after the expiration of the CPL 30.30 statutory period does not mandate a finding that their statement of readiness was illusory." 12 AD3d 5, 8-9 (3d Dept. 2004), appeal denied, 4 NY3d 804 (NY 2005).

In addition, this court agrees with the VanHoesen court's statement that "we reject the notion that a formal laboratory analysis is required to establish guilt beyond a reasonable doubt. While the Court of Appeals in Swamp stated that 'a defendant may [not] be proven guilty beyond a reasonable doubt based solely on the results of a...field test' (People v. Swamp, supra at 733 [emphasis added]), we do not consider this statement to a fortiori mean that a formal laboratory test is therefore required to prove guilt beyond a reasonable doubt," in a drug possession case. [*7]Id. at 9.

Assuming the factual allegations to be true, this court finds that the fourth element from Kahn was satisfied and therefore the People had filed a facially sufficient information. It is this court's position that a lay witness's affidavit or testimony, then, identifying the drug marijuana and/or its impairing effect on another is found to be legally sufficient evidence for a facially sufficient information as well as a basis to prove guilt beyond a reasonable doubt at trial. Because the People announced readiness for trial on a valid information before the speedy trial period had ended, the defense motion to dismiss is denied. This shall serve as the decision and order of the court.

ENTER:_______________________

DATE: July 21, 2005

______________________________

HON. JAMES C. HARBERSON, JR.