People v Pealer

[*1] People v Pealer 2009 NY Slip Op 51753(U) [24 Misc 3d 1235(A)] Decided on August 13, 2009 County Court, Yates County Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 3, 2009; it will not be published in the printed Official Reports.

Decided on August 13, 2009
County Court, Yates County

The People of the State of New York

against

Robert B. Pealer, Defendant.



08-78



Hon. Susan H. Lindenmuth

Yates County District Attorney

(Allison M. Connor, Esq., of Counsel)

Counsel for the People

Anelli & Xavier

(Jeffrey G. Leibo, Esq., of Counsel)

Counsel for the Defendant.

W. Patrick Falvey, J.

Defendant, ROBERT B. PEALER, was indicted for two counts of DRIVING WHILE INTOXICATED, in violation of Vehicle and Traffic Law (VTL) §§1192(2), 1192(3) and 1193(1)(c)(ii), both class D felonies.

Defendant moved for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion argued on May 12, 2009. Upon said argument certain branches and elements therein were decided and determined.

The Court also granted the defendant's application for so called "Huntley", "Probable Cause" and "Sandoval/Ventimiglia" hearings.

The hearings were held in the presence of the defendant on July 7, 2009. The "Sandoval" issues were decided on the record with defendant's counsel to submit an Order.

As to the remaining issues the following constitutes the decision of the Court.

The defendant claims to be aggrieved by an unlawful arrest and improper acquisition of evidence, and seeks suppression of certain oral statements made to law enforcement officers on or about October 19, 2008.

The defendant alleges that 1) his arrest was illegal and 2) his statements were involuntarily made within the meaning of CPL §60.45. [*2]

FACTS

Two witnesses testified, both on behalf of the People. I give full credence to their testimony.

Penn Yan Village Police Officer Kirk Crandall was on road patrol during his 4:00 P.M. to 2:00 A.M. shift on October 18 and 19, 2008. At the time the road was dry and the weather was clear. At approximately 1:15 A.M. he received word from his dispatch that the later had received an anonymous call claiming that a Robert Pealer was driving a gray Subaru from Sarrasin's Restaurant and he was intoxicated. The patrolman was further advised that the vehicle had a sticker reading "FLCC" located on the rear window of the vehicle.

The officer parked in the driveway of the Knapp and Schlappi Lumber Company whereupon he saw the subject vehicle traveling east on South Avenue. He also observed a "FLCC" sticker located in the lower corner of the rear window.

He followed the vehicle for approximately four minutes and noticed that the car weaved, but only within the driver's lane. The vehicle never crossed the fog or center lines. Furthermore, Crandall noted that the driver used his turn signals at the appropriate times and there were no stop sign or speeding violations.

Based on the fact that there was a sticker located in the rear window of the defendant's vehicle, the officer activated his lights and stopped defendant's vehicle at approximately 1:26 A.M. on Clinton Street in the Village of Penn Yan.

The patrolman approached the stopped vehicle and asked the driver for his license and registration. He noted that the defendant had no problem giving him the requested documents. Crandall asked the defendant where he was coming from and the defendant replied, "Work at Sarrasin's". The defendant also indicated that he had "two beers".

While they talked, the officer noticed that the defendant's eyes were red and glassy. The defendant's speech was impaired and he smelled an odor of an alcoholic beverage coming from the defendant.

During this time the officer did not threaten the defendant nor did the defendant request a lawyer nor had any formal charges been laid.

The officer asked the defendant to perform a number of field sobriety tests, to and including, the horizontal gaze nystagmus, finger to nose, Rhomberg and finger count. Crandall noted that the defendant failed each of these tests. The defendant also refused to do the one leg stand and walk and turn tests. A breath screen of the defendant indicated a positive result for the presence of alcohol.

Based upon the aforementioned, Patrolman Crandall placed the defendant under arrest for Driving While Intoxicated and a violation of VTL §375(1) at approximately 1:44 A.M.

Crandall also read the defendant his so called Miranda (Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694) and DWI warnings at approximately 1:48 A.M. He then advised the Yates County Sheriff's Department that he was coming to the Public Safety Building and requested the services of a breath test operator.

At no time had the defendant requested a lawyer nor had any formal charges been filed. Nor did Crandall threaten the defendant.

While at the Yates County Sheriff's Office the defendant was given the DWI warnings by Correction Officer/Breath Test Operator Antonia V. Lerch. Ms. Lerch also asked the defendant [*3]whether he was ill, diabetic, taking any medications or under any doctor's care.

When asked to take the breath test the defendant requested to call a lawyer. At 2:00 A.M. the defendant called and spoke with an attorney. After the defendant finished talking with the lawyer the DWI warnings were reread to the defendant at approximately 2:20 A.M. The defendant would not give Officer Lerch a "yes" or "no" answer regarding taking the test. The DWI warnings were again reread at approximately 2:24 A.M. whereupon the defendant agreed to submit to the test which was then administered at 2:40 A.M.

At no time was the defendant threatened or were any promises made to him regarding submitting to the breath test.

LAW AND CONCLUSIONS

A. PROBABLE CAUSE

The defendant asserts that the initial stop was illegal thus the charges should be dismissed. People v. Ingle, 36 NY2d 413 stands for the proposition that an automobile may be stopped for a "routine traffic check" when a police officer reasonably suspects a violation of the Vehicle and Traffic Law. However, the reasonableness of the search and seizure is determined by the facts and circumstances of the particular case. People v. DeBour, 40 NY2d 210, 222 -223.

Ingle points out that the factual basis required to support a stop for a "routine traffic check" is minimal. "An actual violation of the Vehicle and Traffic Law need not be detectable. All that is required is that the stop not be a product of a mere whim, caprice or idle curiosity." In the case at bar, even though the officer had some information that the defendant may have been driving drunk, he pulled the defendant over because he observed an unauthorized sticker on the defendant's rear window in violation of VTL section 375(1)(b)(i). In this regard the Court of Appeals has determined that there is no illegal seizure when a police officer who has probable cause to believe a driver has committed a traffic infraction stops the vehicle even if the officer's primary motivation is to conduct another investigation. People v. Robinson, 97 NY2d 341.

A police officer may stop a vehicle if there is reasonable suspicion (People v. Saylor, 166 AD2d 899, app den 77 NY2d 966) of criminal activity ie., misdemeanor or felony; when, as in the case at bar, he has probable cause to believe that a person has committed a crime or offense in his presence, such as a violation of the VTL, in this case VTL §375(1)(b)(i). These are the third and fourth levels of the graduations of permissible police authority for encounters with citizens in public places annunciated in Debour at 223.

The Commissioner of Motor Vehicles has promulgated regulations, regarding VTL §375(1)(b)(i) at 15 NYCRR Part 174. These regulations state that only posters and stickers approved by the Commissioner may be displayed on the windshield or rear windows (§174.1). The subsequent sections discuss what stickers may be attached and where they may be attached, including a registration sticker (§174.2), inspection sticker (§174.3), Electronic toll collection tags (§174.4), parking or security stickers (§174.5), special event stickers (§174.6), auto theft prevention program decal (§174.7) military installation decals (§174.8), New York State STOPPED stickers (§174.10) and NY inspection reminder sticker (§174.11) . The "FLCC" sticker located on the defendant's rear window is not listed, thus it is considered unauthorized.

An "equipment" violation noticed by a police officer is an appropriate reason to stop a vehicle. And thus would be considered a "reasonable suspicion of criminal activity". Gerstenzang, Handling the DWI Case In New York § 1.3 at 5. [*4]

On the other hand, a car weaving within its own lane would not be sufficient reason to stop. See, People v Wohlers, 138 AD2d 957 (4th Dept 1988) which involved a situation where the driver "strayed slightly to the right of the driving lane". In the case at bar, the proof is that the defendant stayed within his lane while the patrolman followed him. Compare, People v Beckwith, 163 AD2d 863 (4th Dept 1990), where the stop was upheld when the police "suspected the defendant's driver's license had been revoked and, as they followed defendant's vehicle, that information was confirmed by radio transmission. Defendant's vehicle was also observed weaving in its lane. The stop was thus properly based upon specific articulable facts which reasonably warranted the intrusion." Id. at 863.

However, the Fourth Department again looking at the issue in 2003 in People v Washburn, 309 AD2d 1270 ruled that the Monroe County court erred in "determining that the police were justified in stopping the motor vehicle driven by defendant to request information." Id. at 1271. The People argued that the stop was justified under Ingle at 413, because it was "not the product of mere whim, caprice or idle curiosity...[but was] based upon 'specific and articulable facts' ". Washburn at 1271. "Since Ingle, however, the Court of Appeals has made it "abundantly clear" (People v Sobotker, 43 NY2d 559 at 563) that "police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime" (People v Spencer, 84 NY2d 749, 753, other cites omitted) or where the police have "probable cause to believe that the driver ... has committed a traffic violation" (People v Robinson, 97 NY2d 341,350)" Washburn at 1271.

As for the anonymous tip, it would not be sufficient for the stop. See, People v Hoffman, 224 AD2d 853 (3rd Dept 1996). "An anonymous telephone tip must be viewed with undiluted suspicion, as it is a notoriously weak and unreliable source of information, which, without more, rarely justifies the considerable intrusion inherent in a search or seizure. Id. at 854.

Here, the facts presented show that when officer Crandall observed the defendant having an unauthorized sticker on the rear window in violation of §375 of the VTL he had witnessed a violation of the VTL. Although a seemingly minor infraction it was no mere whim, caprice or idle curiosity on his part and a violation of the Vehicle and Traffic Law does establish an articulable basis for the stop. Wohlers at 957.

However, once stopped, the officer had to proceed to the lowest level of DeBour at 210, a request for information, such as license and registration. VTL §401(4) requires a motorist to give this kind of information on the request of a police officer.

While requesting this information, Patrolman Crandall smelled alcohol, noticed that the defendant's speech was slurred and his eyes were red and glassy.

These observations, provided a founded suspicion that criminal activity may be afoot, ie., driving while intoxicated, which gave Officer Crandall the common law right to inquire, and he did so by requesting the defendant perform a number of field sobriety tests which he failed as

well as a breath screen that tested positive for the presence of alcohol.

All of these observations gave Patrolman Crandall "reasonable cause" to arrest the defendant for the crime of operating a motor vehicle while in an intoxicated condition. See People v. Pagan, 165 Misc 2d 255, 258. [*5]

The Court finds that upon the proof presented, Officer Crandall had reasonable cause to stop the defendant's vehicle for an equipment violation under § 375(1)(b)(i) of the VTL. He also later properly acquired probable cause to arrest the defendant for operating a motor vehicle while in an intoxicated condition. Therefore, the defendant's request for suppression due to an arrest lacking probable cause is in all respects denied.

B. ADMISSIONS

In determining the voluntariness of an admission the Court must look to all relevant factors, and all facts and circumstances must be weighed and considered. People v. Carbonaro, 48 Misc 2d 115, affd 21 NY2d 271, remittitur amended by 21 NY2d 971.

An admission is admissible at trial in this state only if its voluntariness is established by the People beyond a reasonable doubt. People v. Witherspoon, 66 NY2d 973.

If the prosecutor in the first instance establishes the legality of the police conduct in obtaining a statement the defendant has the burden of persuasion in seeking suppression. People v. Love, 85 AD2d 799, affd 57 NY2d 998.

Miranda (Miranda at 436) warnings must be given, with certain exceptions, to all people subjected to custodial interrogation "regardless of the nature or severity of the offense". Berkemer v. McCarty, 468 US 420, 434, 104 S Ct 3138, 3147, 82 L Ed 2d 317, 331.

However, McCarty stated that when a motorist is stopped by the police to investigate whether he or she is operating a motor vehicle while intoxicated, the motorist is not yet "in custody" for the purposes of the doctrine enumerated in Miranda. As a result, the motorist is not entitled to warnings, and any interrogation by police on the scene is, by definition, not "custodial interrogation". Therefore, any incriminating remarks made by the defendant at the scene, even absent Miranda warnings and even in response to police questions, are not in violation of the Fifth Amendment "right to counsel". Also see, People v. McAleavey, 159 AD2d 646 (2nd Dept 1990).

Furthermore, People v. Austin, 128 Misc 2d 923, citing McCarty, 468 U S at 439, 104 S Ct at 3150, 82 L Ed 2d at 334 stated:

"....that a police officer who lacks probable cause for arrest but whose observations lead him reasonably to suspect that a person

has committed, is committing or is about to commit a crime, may

detain that person briefly to investigate the circumstances that

provoked the suspicion.: and McCarty, continues:

The similarly non-coercive aspect to ordinary traffic stops prompts

us to hold that persons temporarily detained pursuant to such stops

are not in custody for the purpose of Miranda." 468 US at 440, 104

S Ct at 3150, 82 L Ed 2d at 334-335.

McCarty also pointed out that "a policeman's unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Id. at 442.

The People have met their burden that the statements made to Patrolman Crandall at the site of the stop were voluntary and that the defendant was not "in custody" as supported by the [*6]facts and in accordance with McCarty at 420. Furthermore, the defendant's statements while in custody, after being placed under arrest at the scene, and at the Public Safety Building were made after he had been properly given the so called Miranda warnings.

The defendant's motion for suppression of those statements are in all respects denied.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED.

Dated: August 13, 2009.

s/__________________________________

W. Patrick Falvey

Yates County Judge