People v Mazzola

[*1] People v Mazzola 2006 NY Slip Op 51061(U) [12 Misc 3d 1165(A)] Decided on June 2, 2006 Suffolk District Court Asher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2006
Suffolk District Court

The People of the State of New York, Plaintiff,

against

Louis Mazzola, Defendant.



2005SU041691

W. Gerard Asher, J.

The defendant is charged with failing to signal a right turn, V&TL 1163 (d), refusing to take a pre-screening breath test, V&TL 1194(b), and driving while intoxicated, V&TL 1192(2) and 1192(3). Pursuant to an order of this court dated January 24, 2006, a combined Huntley, Mapp, and Dunaway hearing was held. The People presented the testimony of Suffolk County Police Officer Harry Jos and the People elicited direct testimony from the witness. There was no cross examination.

The court finds that on August 26, 2005, at approximately 11:10 pm, Suffolk County Police Officer Harry Jos was on patrol, driving a marked police car eastbound on Route 25 in the Town of Huntington, in Suffolk County. At that time, from approximately 300 feet, the Officer observed the defendant, in a green Chrysler, making a right turn onto Route 25, eastbound, from a driveway of a parking lot. Officer Jos followed the defendant for about one half mile, never losing sight of the vehicle. Officer Jos testified that he signaled the defendant to pull over at Daly Road and Route 25 for the sole reason that the defendant failed to signal before making the right hand turn out of the parking lot onto Route 25.

The officer approached the driver's side window and asked the defendant for identification. He noticed that the defendant had an odor of alcohol around him; that his eyes were glassy and bloodshot; and that his speech was slurred. The officer asked if he had been drinking and the defendant stated "I had a beer at the bar." The defendant was asked to leave the vehicle and accompany the officer to the back of his vehicle. The officer noticed that the defendant was unsteady on his feet. The officer asked how much he had to drink and the defendant said "I drank earlier." The defendant was then requested to perform three field sobriety tests i.e. the Horizontal Gaze Nystagmus Test; the heel to toe walk and turn; and the one legged stand. The defendant performed poorly on each of these tests, according to Officer Jos. The defendant was then requested to take a field sobriety breath screening test and the defendant refused. The defendant was arrested for driving while intoxicated, V&TL 1192(3), and transported to the Second Precinct. At the precinct, the defendant consented to take a chemical test of his breath. The test resulted in reading of 0.09 percent of weight of alcohol in the defendant's blood.

Based upon the credible testimony and evidence presented at this hearing the court finds that the defendant's motion to suppress is granted and all of the evidence arising from the stop of [*2]the defendant's vehicle is suppressed. In People v. Robinson, 97 NY2d 341, the New York Court of Appeals adopted the reasoning of the US Supreme Court in Whren v. United States, 517 US 806, with regard to a traffic stop as a pretext to search a vehicle or the driver for evidence of another offense. The court stated 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 the US Constitution, Amendment IV or the NY Constitution, Art. 1, Sec. 12. In making that determination of probable cause, neither the primary motive of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant. The evaluation of the validity of the traffic stop is based upon the probable cause that the driver has committed a traffic offense.

In the instant case, the People are not claiming that the stop was based upon a stop at a systematic checkpoint to enforce traffic regulations. Cf. People v. Serrano, 233 AD2d 170. The People are relying on probable cause to stop the defendant, based upon the officer's observations of the defendant committing a traffic offense. Officer Jos stated that the reason he stopped the defendant was that the defendant failed to signal before making a right turn out of a parking lot onto Route 25.

In People v. Silvers, 195 Misc 2d 739, the court stated:

"Pursuant to Vehicle and Traffic Law Sec. 1163(b), a signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning'. While the statute requires a turn signal when entering a private road, driveway, or in this case a parking lot, nothing in the statute requires a motorist to signal a turn when exiting a parking lot." citing Byer v. Jackson, 241 AD2d 941.

The case of Byer v. Jackson, supra, presents a fact pattern similar to the instant case. In that case the Appellate Division reversed the finding of an administrative law judge, after a hearing pursuant to V&TL 1194(2-c), which had upheld the suspension of a driver's license for refusing to submit to chemical test for blood alcohol content. The petitioner had been stopped after he turned out of a parking lot without using a turn signal. The officer then noted signs of intoxication and arrested the petitioner for driving while intoxicated, V&TL 1192(3). The court reversed the administrative law judge's finding that the petitioner had been properly arrested and refused to submit to a chemical test. The basis of the reversal is that the petitioner did not violate V&TL 1163(a), as there is no requirement to signal a turn out of a private driveway. In the instant case, Officer Jos did not have probable cause to believe that the defendant committed a traffic offense and the stop of the defendant's vehicle was not legal. All evidence arising from this stop should be suppressed.

Accordingly, the motion to suppress the statement and all evidence obtained after the stop of the defendant's vehicle is granted.

Dated: June 2, 2006 ____________________________

J.D.C.