People v Scott

[*1] People v Scott 2009 NY Slip Op 52191(U) [25 Misc 3d 1219(A)] Decided on October 29, 2009 Nassau Dist Ct, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2009
Nassau Dist Ct, First District

The People of the State of New York,

against

Jason R. Scott, Defendant.



2009NA023038



Hon. Kathleen Rice, Nassau County District Attorney

Attorneys for Defendant: Michael DerGarabedian & Gregory Grizopolous

Andrew M. Engel, J.

The Defendant is charged with driving while intoxicated and failure to maintain a lane, in violation of VTL §§ 1192(2) and 1128(a), respectively.

On September 29, 2009 a hearing was held, pursuant to the parties' stipulation, to determine whether the Defendant's alleged statements were involuntarily made within the meaning of CPL § 60.45, whether the arresting officer lacked reasonable cause to stop and arrest the Defendant, and whether any tangible evidence and testimony of any police officers pertaining to their observations of the Defendant should be suppressed, pursuant to People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965); Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961)and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979).

At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, supra .; People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

The People attempt to meet their burden through the testimony of Police Officer Robert Shenfeld. The Defendant did not call any witnesses. After listening to and observing the [*2]demeanor of Officer Shenfeld, the court finds his testimony to be credible and makes the following findings of fact:

Officer Shenfeld was working the 7:00 p.m. to 5:00 a.m. tour commencing on September 5, 2009. He was in uniform and alone in a marked police vehicle. At approximately 4:30 a.m. the officer was heading westbound on Foxhurst Road, in Oceanside, when he observed a vehicle in front of him, being operated at a "normal" rate of speed, swerving in its lane and crossing over the parking lines on its right and the double yellow line in the center of the street to its left three to four times, to a maximum of eight to ten inches over the center line. According to Officer Shenfeld, the vehicle was "going down the road pretty erratic."

Officer Shenfeld followed about seventy five to one hundred feet behind the vehicle when, as he closed to fifty to sixty feet behind, he observed the vehicle make a right hand turn and quickly pull over to the right hand curb. Officer Shenfeld drove past the car and made the first left turn, approximately one hundred fifty feet ahead. At this point, the vehicle Officer Shenfeld had been following was out of sight for about ten to fifteen seconds. To this point, Officer Shenfeld had not observed who was driving the vehicle. Officer Shenfeld next observed the vehicle he had been following come around the corner and begin traveling down the same street as the officer. Officer Shenfeld made a u-turn and observed the vehicle again pull over to the right curb as the officer passed. The vehicle then proceeded to move forward; and, Officer Shenfeld made another u-turn, activated his flashing lights and pulled the vehicle over.

Officer Shenfeld pulled his vehicle behind the stopped vehicle and approached the vehicle's driver's side on foot. The vehicle's driver's window was open; and, Officer Shenfeld asked the driver, who he identified as the Defendant, to provide his license, insurance card and registration. At this time Officer Shenfeld detected a "strong" odor of alcohol and observed the Defendant to be "lethargic," "out of it," to have red glassy eyes and to appear to be confused. According to the officer, the Defendant fumbled with his license; and, his motor skills appeared to be impaired, although he did produce the requested documents.

While the Defendant was still sitting in the car, Office Shenfeld asked him where he was coming from, if he had had anything to drink and why he pulled his vehicle over. The Defendant responded that he had been drinking vodka and cranberry drinks in the city, had taken the train to the Baldwin train station, then drove to a Spanish bar on Grand Avenue and had a beer. Officer Shenfeld then, twice, asked the Defendant to exit his vehicle. According to the officer, the Defendant stumbled getting out of his car.

The Defendant and Officer Shenfeld then proceeded to the sidewalk to the right of the officer's vehicle for the purpose of conducting standardized field sobriety tests ("SFSTs"). Officer Shenfeld first described to the Defendant how he was going to perform the horizontal gaze nystagmus test and then performed the test. According to Officer Shenfeld the test resulted in six out of six positive clues for possible intoxication. Officer Shenfeld next explained, demonstrated and performed the one leg stand test. According to Officer Shenfeld the Defendant started the test before he was done with his instructions, raised his foot off the ground two to six inches for two to three seconds, raised his arms eight to ten inches for balance, swayed three to four inches left to right, almost fell over and stated, "I can't do this." At this point, Officer Shenfeld ceased performing the one leg stand test for the Defendant's safety. Officer Shenfeld then explained, demonstrated and performed the nine step walk and turn test. The Defendant [*3]again started the test too soon, took ten steps on the first set of nine steps, missed touching his heel to toe on all steps, zig zagged as he walked, raised his arms eight to ten inches for balance and missed touching his heel to toe on all returning nine steps. Office Shenfeld then asked the Defendant to take a preliminary breath test, which the Defendant agreed to do, resulting in a reading of .16.

Based upon all of his aforesaid observations Officer Shenfeld concluded that the Defendant was intoxicated and placed him under arrest. Shortly after SFSTs had been performed Police Officers Aigotti and Teague arrived at the scene. The Defendant was place in the rear of one of the police vehicles; and, during the ride to police headquarters Central Testing Section ("CTS"), Officer Shenfeld read the Defendant his Miranda rights off of a rights card. After each question on the card the Defendant was asked if he understood, to which he responded, "Yes." Officer Shenfeld then asked the Defendant if he wished to talk, and the Defendant responded, "I depends, I was drinking tonight, yes, I will answer questions." The Defendant was then asked his pedigree information and nothing more.

The Defendant argues that there was neither reasonable suspicion nor probable cause for the initial stop of his vehicle and that everything that followed thereafter must be suppressed as the fruits of an unlawful stop. The Defendant bases this argument on the fact that at the time Officer Shenfeld observed the vehicle in question allegedly swerve over the parking and double yellow lines he did not see who was driving the vehicle and thereafter he lost sight of the vehicle for ten to fifteen seconds, before pulling the Defendant over. The Defendant argues that there is no evidence that he was operating the vehicle at the time of the alleged Vehicle and Traffic Law violation, that he may have commenced driving the vehicle at the time when it was out of the sight of Officer Shenfeld, and, thereafter, Officer Shenfeld did not observe a vehicle and traffic violation. Under these circumstances, the Defendant posits that Officer Shenfeld had no basis to stop him.

The People argue that the vehicle being out of Officer Shenfeld's view for ten to fifteen seconds is de minimis and does not preclude the officer's stop of the vehicle for the previously observed vehicle and traffic violation. The People further argue that the first statement allegedly made by the Defendant was voluntarily made in response to a reasonable roadside investigation following a routine traffic stop and that the second statement was voluntarily made following the administration and knowing and voluntary waiver of the Defendant's Miranda rights.

It is well established that "the stopping of an automobile by the police constitutes an impermissible seizure (citations omitted)." People v. Sobotker, 43 NY2d 559, 563, 402 NYS2d 993, 996 (1978); See also: People v. Spencer, 84 NY2d 749, 622 NYS2d 483 (1995) Such a seizure may nevertheless be upheld where an "officer observes or reasonably suspects the violation of the Vehicle and Traffic Law (citations omitted)." People v. Schroeder, 229 AD2d 917, 645 NYS2d 217 (4th Dept.1996); See also: People v. Chilton, 69 NY2d 928, 516 NYS2d 633 (1987); Liebel v. Jackson, 261 AD2d 474, 690 NYS2d 94 (2nd Dept.1999); People v. Gales, 187 AD2d 606, 590 NYS2d 105 (1992) "[T]he degree of suspicion required to justify the stop is minimal. Nothing like probable cause as that term is used in the criminal law is required." People v. Ingle, 36 NY2d 413, 415, 369 NYS2d 67, 69 (1975); See also: People v. Villanueva, 137 AD2d 852, 525 NYS2d 317 (2nd Dept.1988) Reasonable suspicion, as used here, as been defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under [*4]the circumstances to believe criminal activity is at hand." People v. Cantor, 36 NY2d 106, 113, 365 NYS2d 516 (1975); See also: People v. William ""II'', 98 NY2d 93, 745 NYS2d 792 (2002); People v. Rosario, 94 AD2d 329, 465 NYS2d 211 (2nd Dept.1983)

There is no question that, standing alone, Officer Shenfeld's observation of an automobile repeatedly failing to maintain its lane and crossing the parking and center double yellow lines provided reasonable suspicion that the operator had violated the Vehicle and Traffic Law. See: VTL § 1128(a) Similar holding were made in People v. Riggio, 202 AD2d 609, 609 NYS2d 257 (2nd Dept. 1994), where the defendant was observed weaving across lanes, People v. Sundquist, 175 AD2d 319, 572 NYS2d 410 (3rd Dept.1991), where the driver was observed crossing the solid double center line, and People v. Irizarry, 282 AD2d 483, 730 NYS2d 111 (2nd Dept. 2001) lv. den. 97 NY2d 705, 739 NYS2d 106 (2002), where the defendant's vehicle was observed straddling two driving lanes.

Contrary to the Defendant's argument, the fact that Officer Shenfeld lost sight of the vehicle which had crossed the parking and double yellow lines for ten to fifteen seconds between the time he observed the Vehicle and Traffic Law violation and stopping the vehicle does not render the stop unlawful. In People v. Howell, 111 AD2d 768, 490 NYS2d 26 (2nd Dept.1985) the court sustained the stop of a vehicle which matched the description of a vehicle which had been involved in prior robberies, although the police had no information that the driver of the vehicle had in anyway been involved in the robberies. In People v. Humpleby, 7 Misc 3d 192, 793 NYS2d 313 (Just.Ct. Onondaga Co. 2005) the court upheld the stop of a vehicle which matched the description of a vehicle involved in a motor vehicle accident earlier in the evening, based upon radio transmissions describing the vehicle but not the driver. Similarly, in People v. Swanston, 277 AD2d 600, 716 NYS2d 118 (3rd Dept. 2000) lv. den. 96 NY2d 739, 722 NYS2d 806 (2001) the court upheld the stop of a vehicle based upon the report of an unidentified motorist to a toll booth operator of a vehicle being operated erratically, without identifying the driver, which report was transmitted to the State Police, who transmitted the report to another toll booth operator, who saw the described vehicle and told it to pull over and wait for the police.

In each of those cases, as the Defendant herein argues, it is conceivable that a different person was operating the vehicle in question at the time of the alleged offense, as opposed to the time when the vehicle was stopped; but, the common thread sustaining the lawfulness of the stops was the fact that "the police officer[s] ... indicate[d] specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion." People v. Cantor, supra . at , 36 NY2d 106 (1975); See also: People v. Ingle, supra .; People v. Brooks, 11 AD3d 705, 783 NYS2d 287 (2nd Dept. 2004); People v. Riggio, supra . The same can be said for Officer Shenfeld.

While Officer Shenfeld could have stopped the vehicle immediately upon observing it repeatedly swerve over the parking and double yellow lines, he was not obligated to do so. Additionally, while it is curious that Officer Shenfeld did not pull behind the vehicle the first time he observed it pull over to the curb, choosing instead to proceed down the street and make the first left, the fact that the vehicle was then out of sight for ten to fifteen seconds did not vitiate his reasonable suspicion that the operator of the vehicle had violated the Vehicle and [*5]Traffic Law. Based upon the articulated facts, that he observed of a Vehicle and Traffic Law violation, the vehicle twice made maneuvers which were reasonably interpreted as evasive and the vehicle being out of his sight for only a matter of seconds, it was logical for Officer Shenfeld to deduce, and reasonable for him to suspect, that the vehicle was being operated by the same individual at the time of the Vehicle and Traffic Law violation and at the time of the stop.

Based upon all of the foregoing, the court finds that the stop of the Defendant's vehicle was lawful.

It is well established that a temporary roadside detention pursuant to a routine traffic stop is not custodial in nature. People v. Myers, 1 AD3d 382, 766 NYS2d 581 (2nd Dept. 2003) lv. den. 1 NY3d 631, 777 NYS2d 30 (2004); People v. Parris, 26 AD3d 393, 809 NYS2d 176 (2nd Dept. 2006) lv. den. 6 NY3d 851, 816 NYS2d 757 (2006); People v. Gutierrez, 13 AD3d 268, 787 NYS2d 266 (1st Dept. 2004) It is equally well established that after stopping a vehicle for an alleged Vehicle and Traffic Law violation a police officer may conduct a reasonable initial interrogation attendant to a roadside investigation. People v. Harris, 186 AD2d 148, 587 NYS2d 425 (2nd Dept.1992); People v. Kearney, 288 AD2d 398, 733 NYS2d 460 (2nd Dept. 2001) That is what occurred in this matter. At that point, the Defendant's alleged statement, that he had been drinking vodka and cranberry drinks in the city, had taken the train to the Baldwin train station, then drove to a Spanish bar on Grand Avenue and had a beer, was not the result of a custodial interrogation, and was voluntarily made, without there having been any improper conduct on the part of the police.

Thereafter, the strong odor of alcohol, the Defendant's red glassy eyes, his lethargic demeanor, his appearance of having impaired motor skills, his unsteadiness on his feet, his admission of having consumed alcohol that evening and the positive clues observed during the SFST's provided Officer Shenfeld with probable cause to believe that the Defendant had been driving while intoxicated. See: People v. Ball, 141 AD2d 743, 529 NYS2d 840 (2nd Dept.1988); People v. Troche, 162 AD2d 483, 556 NYS2d 403 (2nd Dept.1990); People v. Schmitt, 262 AD2d 588, 692 NYS2d 656 (2nd Dept.1999)

The Defendant was then properly read his Miranda rights in the rear of the patrol car and made a second voluntary admission, which was not the result of any interrogation, but made in respone to the question of whether or not he was willing to talk.

Based upon all of the foregoing, the Defendant's application to suppress the statements of the Defendant, all observations of the police following the stop of the Defendant's vehicle and the results of the breath test conducted at CTS is denied in its entirety.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

October 29, 2009 [*6]

___________________________

ANDREW M. ENGEL

J.D.C.