People v Land

[*1] People v Land 2009 NY Slip Op 51255(U) [24 Misc 3d 1204(A)] Decided on June 16, 2009 Nassau Dist Ct, First District Spergel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2009
Nassau Dist Ct, First District

The People of the State of New York, Plaintiff(s)

against

Frank Land, Defendant(s)



2007/026728



Stephanie Dellinger, A.D.A., of counsel to Kathleen M. Rice, District Attorney, Attorney for the Plaintiff, Nassau County District Court, 99 Main Street, Hempstead, New York 11550, (516)572-2070). Robert J. Brunetti, Esq. Attorney for the Defendant, 170 Old Country Road, Suite 610, Mineola, New York 11501, (516) 794-3500.

Robert H. Spergel, J.

On October 28, 2007, defendant, Frank Land, was charged with violating one count of Section 1192.2a of the New York State Vehicle and Traffic law (Aggravated Driving While Intoxicated), a misdemeanor, one count of Section 1192.2 of the New York State Vehicle and Traffic law (Driving While Intoxicated), also a misdemeanor; and one count of Section 600.1 of the New York State Vehicle and Traffic law (Leaving the scene of a motor vehicle accident) a violation.

A pre-trial hearing was ordered to determine defendant's motion to suppress. On March 27, 2009 a Huntley/Dunaway/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant.

The People produced Freeport Police Officers Norville Curtis and James Germanakos as witnesses to testify. The defendant did not call any witnesses. Based upon the credible evidence advanced at the hearing, the Court concludes the following:

FINDINGS OF FACT

The first witness called by the People was Freeport Police Officer Curtis. He testified that on October 28, 2007 he was working the 7 P.M. shift through 7 A.M. tour of duty. The tour beginning on October 27, 2007. Officer Curtis was working in uniform alone in a marked RMP.

At approximately 4:19 A.M. Officer Curtis received a radio call of a motor vehicle accident in the vicinity of Miller Avenue between Manhattan and Richmond Avenues. Officer [*2]Curtis arrived on the scene at approximately 4:25 A.M. Upon arriving on the scene Officer Curtis observed a black Lexus with front end damage located in the intersection of Manhattan Ave. and Miller Ave. Officer Curtis testified there were people in the street and that they told him that the driver of the vehicle had run southbound on Miller Ave. After receiving a radio dispatch that another Officer had stopped an individual and a witness Officer Curtis responded southbound on Miller. This location was approximately one half block from the scene of the accident.

Upon arriving at the location where the witness was, Officer Curtis interviewed and took a statement from the witness. As part of the statement the witness told officer Curtis that he had observed a black Lexus in the intersection and observed a white male exit the vehicle and run southbound on Miller. Subsequent to the statement being taken, the witness identified defendant as the individual who had exited the black Lexus and fled southbound on Miller. After taking the statement from the witness, Officer Curtis began doing crowd control.

At approximately 5:00 A.M. Officer Curtis testified that he had been assigned the arrest and the defendant was placed into the rear of his RMP. While in the RMP defendant stated to Officer Curtis that he had been out and had four drinks, two beers and two wines at a bar. Officer Curtis testified on direct that the statements were spontaneously made by the defendant during transportation from the arrest location. On cross examination Officer Curtis acknowledged hat he had been engaged in some conversation with defendant which was characterized by defense counsel and adopted by Officer Curtis as "chit-chat." However, Officer Curtis had no recollection what he may have said to defendant.

On cross examination Officer Curtis also testified to observing defendant with abrasions to his face and head consistent with injuries from a motor vehicle accident and also observed the odor of alcohol coming from defendants breath.

The next witness called by the People was Freeport Police Officer James Germanakos. Officer Germanakos was working the 7P.M. X 7A.M. tour of duty beginning on October 27, 2007. He was in a marked police vehicle, in uniform and working alone. At approximately 4:19. A. M., via a radio dispatch, Officer Germanakos responded to the vicinity of 696 Miller Avenue to investigate a motor vehicle accident. Officer Germanakos testified that he had been informed by a witness at the scene that the defendant had been observed leaving the accident location and had been chased up the block on Miller Ave. In response, Officer Germanakos proceeded up Miller Avenue where he observed the defendant on the ground. The defendant was identified by a witness as the individual who had left the scene of the accident.

Officer Germanakos approached defendant and observed him to have slurred speech, an odor of alcohol and bloodshot eyes. Additionally, defendant was noted to have an injury to his nose.

In furtherance of his investigation Officer Germanakos performed Field Sobriety Tests for which the defendant performed poorly. After defendant's performance on the Field Sobriety Tests, defendant was placed under arrest. [*3]

CONCLUSIONS OF LAW

The Huntley Hearing:

Officer Curtis testified that after being assigned the arrest of defendant he was in a department RMP for transport to CTS to undergo further testing. While in the RMP defendant stated to Officer Curtis that he had been out and had four drinks, two beers and two wines at a bar. Officer Curtis testified on direct that the statements were spontaneously made by the defendant, however on cross examination Officer Curtis acknowledged hat he had been engaged in some conversation with defendant which was characterized by defense counsel and adopted by Officer Curtis as "chit-chat." Officer Curtis had no recollection what he may have said to defendant.

The test to be employed for determining if a statement was spontaneously made is "whether the police conduct should reasonably anticipated to evoke a statement from the defendant and whether it can be said under the circumstances that the inculpatory statement was 'made without apparent external cause.' " People v. Rivers, 56 NY2d 476, 480 (1982). A genuinely spontaneous statement cannot be "the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed." People v. Maerling, 46 NY2d 289,302-303.

Without being able to recall the contents of his words, Officer Curtis provides the Court with no record from which to determine whether the defendants statements were spontaneous or statements which were induced in some way, subtly or not. People v. Lucas, 53 NY2d 678, 680.

As such, the statement made by defendant shall be suppressed at time of trial.

The Mapp/Dunaway Hearing:

The Court finds that Officer Germanakos lawfully approached defendant after receiving a radio call of a motor vehicle accident. Upon his arrival to the location of the accident, Officer Germanakos was directed to proceed up Miller Avenue where the defendant was alleged to have fled. After proceeding up Miller Avenue, Officer Germanakios observed defendant being held by non law enforcement personnel, one of whom identified defendant as the individual who had been involved in the accident and then fled the scene. Moreover, defendant was observed to have injuries to his face consistent with a recent motor vehicle accident.

Officer Germanakos observed defendant to have slurred speech, an odor of alcohol and bloodshot eyes. Based upon his observations and experience concerning indications of alcohol, Officer Germanakos administered Field Sobriety Tests which the results showed indicia of intoxication.

The Criminal Procedure Law utilizes the phrase "reasonable cause" instead of "probable cause" CPL 70.10(2). As it has emerged through case law, the probable cause, or, reasonable cause to arrest an individual has become more of a standard of common sense. [*4]

Citing CPL 70.10(2), the book Handling the DWI Case In New York (2004-05), by Peter Gerstenzang and Eric H. Silla, at page 38 states the following:

"Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."

The Court of Appeals in People v. Carrasquillo, 54 NY2d 248, 252, 445 N.Y.S.2d 97, 100 (1981), stated that:

"In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice."

In People v. Farrell, 89 AD2d 987, 454 NYS2d 306 (1982), the Second Department, applied this "common sense" standard for making an arrest in drinking and driving cases.

"[W]hether, viewing the facts and circumstances as they appeared atthe time of the arrest, a reasonable person in the position of theofficer could have concluded that the motorist had operated thevehicle while under the influence of intoxicating liquor."

Notwithstanding Officer Germanakos having no personal knowledge of defendants operation of the vehicle, for all the reasons stated herein, the Court concludes that considering the totality of the evidence presented,

Officer Germanakos had probable cause to place defendant under arrest for Driving While Intoxicated. People v. Rollins, 118 AD2d 949, 499 NYS2d 817 (3d Dept. 1986).

So Ordered:

________________________

ROBERT H. SPERGEL, D.C.J.

Dated: June 16, 2009

cc:

Hon. Kathleen Rice, District Attorney Nassau County

Robert J. Brunetti, Esq. for Defendant