People v Palermo

[*1] People v Palermo 2009 NY Slip Op 52817(U) Decided on September 28, 2009 City Court Of Geneva Buckley, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2009
City Court of Geneva

People of the State of New York, Plaintiff,

against

Grant R. Palermo, Defendant.



XXXX

 

Kirk S. Hazen, for the People

Ontario County Assistant District Attorney

Ontario County Court House

Canandaigua, New York 14424

John Getz, for the Defendant

144 Exchange Boulevard

Rochester, NY 14614

Timothy J. Buckley, J.

The Defendant, Grant R. Palermo, is charged with Driving While Intoxicated and

Speeding, based on an arrest that occurred on February 7, 2009 on Kings Lane (a private

road) on the property of Hobart William Smith College Campus in the City of Geneva.

The Defendant requested a Probable Cause and Suppression Hearing on the issues of a

Probable Cause for the stop of Defendant's vehicle and a Probable Cause to arrest the

Defendant. A hearing was held on July 27, 2009. [*2]

At the hearing the People produced the arresting officer, Matthew Colton. Officer Colton testified that he was on patrol in uniform in a marked vehicle on February 7, 2009 at approximately 3:30 am. He parked his vehicle at the intersection of Seneca Street and Linden Street facing west bound. He observed a vehicle parked on the south side of Seneca Street in front of a local restaurant and observed that the vehicle had a traffic ticket on its windshield. He then observed the operator of the vehicle make a U- turn on Seneca Street and travel in a westerly direction to the intersection of Seneca Street and South Main Street. Officer Colton testified that he was approximately eighty (80) yards away from the Defendant's vehicle he when he observed the vehicle making a U-turn. (T p8 & 9). Officer Colton testified that Grant R. Palermo, the Defendant herein, was the operator of the vehicle.

The officer then observed the operator of the vehicle make a left hand tam onto South

Main Street and the Defendant had increased his speed. Officer Colton testified that he

caught up with the Defendant's vehicle at the intersection of St Clair Street and he paced the Defendant's vehicle for approximately One Hundred (1 00) yards and activated his emergency lights. The Defendant's vehicle turned onto Kings Lane where the traffic stop was initiated. (T p 12). Officer Colton testified that he had training in estimating the speeds of vehicles and his vehicle was equipped with radar equipment that day and tested the radar equipment at the beginning of his shift and at the conclusion. He testified that he received a radar reading for the Defendant's vehicle he was pursuing of fifty (50) miles per hour in a thirty (30) miles per hour zone. (T p 12).

After the Defendant was stopped, Officer Colton observed the Defendant staggering after exiting the vehicle and the Defendant was administered five (5) separate tests, namely, the horizontal gaze nystagmus test, the heel to toe test, one legged stand, alphabet and finger to nose test, all of which Officer Colton testified the Defendant failed.

On cross-examination of Officer Colton testified that no ticket was issued for the U-turn that Defendant made from the south side of Seneca Street to the intersection of Seneca Street and South Main Street. (T p 3 8);.that there were no traffic violations from the time the Defendant turned left onto South Main Street, as he was proceeding south along South Main to Pulteney Park area and the Defendant used his turn signal in turning from Seneca Street onto South Main Street. (T p 39).

Further Officer Colton testified the Defendant traveled approximately one (1) mile from Seneca and South Main Streets to Kings Lane without swerving. The vehicle did not stop suddenly during that one mile length of travel (T p 48). Officer Colton testified the furthest distance he was away from the Defendant when following him on South Main Street was approximately ten (10) car lengths. (T p 49). Officer Colton started pacing the vehicle with his police vehicle and caught up with the Defendant's vehicle in the are of St. Clair Street. Significantly while Officer Colton testified on direct examination that he clocked the Defendant with his radar equipment, (t p 12) on cross-examination he retracted that testimony (T p 52). [*3]

Officer Colton testified that for a police officer to accurately pace the speed of another vehicle that it is following, the patrol vehicle must have a certified speedometer. (T p 54).

Officer Colton further conceded that he did not know if the speedometer on the vehicle

that he was utilizing on February 7, 2009 had been certified or recertified. (T p 54) There

was no independent proof introduced at the hearing by the prosecution to establish that

the speedometer in question was certified or recertified.

Officer Colton testified when he actually paced his vehicle against the Defendant's

vehicle, he was a car length and one-half behind the Defendant - fifteen to twenty (I 5-

20) feet away, that he started pacing the vehicle at the area of St. Clair Street; that he paced the Defendant's vehicle for a distance of approximately One Hundred (1 00) yards and that he ceased pacing the Defendant's vehicle about thirty yards before the point where South Main Street intersects with Kings Lane. (T p 12).

There are three basis for the police to have probable cause to stop a vehicle: (a) use of a

motor vehicle in connection with criminal activity; (b) reasonable suspicion of a violation

of the vehicle and traffic law based on articable reason that is not the product of mere

whim, caprice or idle curiosity; (c) a routine traffic check to determine whether or not a

vehicle is being operated in compliance with the Vehicle and Traffic Law when

conducted according to nonarbitary and nondiscriminatory, uniform procedures for

detecting violations. See People vs. Ingle 36 NY2d 413

The People simply argue that ''the officer believed the Defendant was speeding and that

the vehicle made in improper U-turn'' when the Defendant's vehicle crossed over lane

markers on Seneca Street. The People further argue that Officer Colton made a visual

estimate of speed and believed the vehicle was traveling fifty (50) miles an hours in a

thirty (30) mile per hour zone. (T p 1 1 L10)(T p 8 L4) The People seek to justify

stopping the Defendant's vehicle on the grounds that the Defendant was speeding and

there was a reasonable basis to stop the Defendant for speeding on three (3) separate

grounds: (1) Officer Colton visually estimated the speed of Defendant's vehicle to be

fifty (5 0) miles an hours in a thirty (3 0) mile and hour zone (T p 1 1 ); (2) that the

Defendant's speeding determined by a visual estimation was confirmed by radar; that the radar device used was an independent basis for determining the speed of the vehicle and stopping Defendant; ( 3) That the Defendant was speeding based on a proper pacing by Officer Colton of Defendant's vehicle.

The Defense claims that the People failed to establish a reasonable basis to stop the

vehicle for any of the above three (3) reasons namely: estimation, radar or pacing.

Regarding the People's claim that the Defendant made ''an improper U-turn'' and that the

U-turn was a threshold reason giving rise to justifying Officer Colton pursuing the

Defendant's vehicle, the People are under the mistaken belief that U-turns are illegal. [*4]

The People argue that the Defendant crossed the yellow line on Seneca Street and

therefore violated the vehicle and traffic law.

Section 158-A of the Vehicle and Traffic Law defines a U-Turn as

"any turn executed to proceed in the opposite direction''.

Section 1161 of the Vehicle and Traffic Law is entitled ''U-Turns in certain areas prohibited''. The statute states:

'' No motor vehicle shall make a U-turn upon any curve or upon the

approach to or near a crest of a grade, where such motor vehicle cannot be seen by the driver of any other motor vehicle approaching from either direction within Five Hundred (500) feet''.

Clearly there is nothing illegal in the act of making a U-turn per se. hi the present case, Officer Colton testified that he was at Linden and Seneca Street when he observed the Defendant in front of a restaurant on the south side of Seneca Street approximately half way down from the intersection of South Main and Seneca Street and Seneca Street and Linden Street. (T p 8). Officer Colton observed the Defendant's vehicle make a U-turn on Seneca Street and pull up to the light at Seneca and Main Street. This occurred at 3:30am. There was no testimony that the Defendant's U-turn occurred on any curve or approach to or near the crest of a grade and there was any other vehicle approaching from either direction within Five Hundred (500) feet of where the Defendant made the U-turn. Officer Colton testified he was approximately eighty (80) yards from the Defendant's vehicle when he observed the Defendant make the U-turn (T p 9). The morning in question was a cold February day, but the road was dry and free of snow. There is no testimony that the U-turn interfered in any manner with the traffic traveling cast or west on Seneca Street at that hour of the morning.

If the People are intending to rely as a basis for stopping the Defendant's vehicle the use

of radar by Office Colton to determine the speed of the vehicle on South Main Street, the

Court cannot give any weight to this testimony. Office Colton initially testified that he -

was using his radar in the course of pursuing the Defendant on South Main Street and that

received a radar reading of fifty (50) miles an hour. The question is not whether Officer

Colton had a radar unit in the vehicle. that morning or whether he calibrated it before and

after his tour of duty or whether the radar was working properly during his shift or

whether the People are required to produce records to confirm the accuracy of the radar unit on the date in question. These issues do not come before this Court for determination because on cross-examination Officer Colton was asked the following

question and gave the following answer:

Question:And do you recall if at any point in time in the incident

report that you indicated that you utilized radar? [*5]

Answer:I didn't necessarily use radar. (T p 52).

Therefore, this Court finds that there is no basis or probable cause to stop the Defendant's

vehicle for the alleged speeding violation based on any radar equipment or proof of speed

as exhibited by radar.

The second basis for the People to rely on to justify the stop is the Defendant's vehicle

was the Officer's estimate of the speed of the vehicle.

The rule in New York State is ''Opinion evidence with regard to speed of moving

vehicles is admissible providing the witness testifying first shows some experience of

observing the rate of speed of moving vehicles or some other satisfactory reason or basis

for his opinion'' People vs. Olsen 22NY 2d 230- 231 (1968). Officer Colton never

testified that he had any experience observing the rate of speed of moving objects. All

that was adduced at the pre-trial hearing was that the Officer testified that he had received training in visual estimates of speed and that he passed an examination. (T p 10-1 1). There was no testimony as to the type of training he had, the length of the same or whether the training was based on observing estimated speeds of motor vehicles and

comparing them with a vehicle with a calibrated speedometer. Further there was no

testimony as to within what range of miles per hour Office Colton was able to make an

estimate of the speed of other vehicles. He simply testified that the Defendant was

traveling in his estimation fifty (50) miles an hour when the Defendant was at the

intersection of St. Clair Street and continuing south before turning on to Kings Lane.

As the Court in People vs. Corria 140 Misc 2d 813 (Village of Muttontown Court

Nassau County),I 988 held: ''proper qualification of the police officer requires evidence

of his training to make an estimate, his prior experience in doing so, and his established

margin of accuracy or error''

In People vs. Leatherbarrow 69 Misc 2d 563-565 (Erie County Court, 1972 ) the

Court held that the testimony of the Officer regarding estimating speed of other vehicles

as a basis of a conviction was insufficient when the Officer did not state he had ever

estimated the speed of any moving -vehicles and compared his estimate with devices with known accuracy. In addition in the present case, since Officer Colton said ''he did not necessarily use radar'' there is no basis for comparing any estimate of speed that he made of the Defendant, namely, fifty (5 0) miles per hour in a thirty (3 0) miles per hour zone against any radar unit since the radar unit was not activated or did not serve as a basis of stopping the Defendant's vehicle.

In People vs. Parado 2 Misc 2d 1002 (Supreme Court, New York County, 2004) the

issue was whether there was probable cause to stop the vehicle for which the occupants

were subsequently indicted for '' possession of a controlled substance degree'' The

Court after the suppression hearing suppressed any evidence resulting from the traffic stop when [*6]the testifying officer ''demonstrated no evidence of background of estimating

speeds''. (Prado at p 100)

Officer Colton like the officer in Parado, testified that he relied on the speedometer.

However there was no evidence on the accuracy of the speedometer that he used. The

People never established whether or not the speedometer operated by Officer Colton was

calibrated, nor as previously commented, was there sufficient foundation laid by the

People in determining Officer Colton's ability to estimate speeds, whether or not the

speedometer was calibrated (T p 54).

The final basis for the People to justify stopping the Defendant's vehicle based on a

reasonable suspicion of a violation of the vehicle and traffic law was the Officer Colton's

pacing the Defendant's vehicle. Officer Colton agreed that for proper pacing to occur

you must be operating a vehicle that has a certified speedometer (T p 54). Officer Colton

further testified that he did not know whether the speedometer in the vehicle he was

utilizing on the date of the stop had been certified or not, nor did he know whether

certification was done with radar. (T p 54).

Since Officer Colton testified that his pacing of the Defendant's vehicle did not occur he

until he was a car length and one-half behind the Defendant when the Defendant was at

the intersection of St. Clair Street, testimony of the distance on South Main Street

between St. Clair Street and Kings Lane becomes significant. For proper pacing to

occur the officer cannot be going faster than the suspect's vehicle. Officer Colton

testified he paced the Palermo vehicle to about thirty (30) yards or ninety (90) feet before

the intersection with King's Lane (T p 58). The Officer further testified that he paced

the Defendant's vehicle from St. Clair Street in a southerly direction towards Kings Lane

for approximately One Hundred (I 00) yards (T p 12). The Court takes Judicial notice

that a car traveling fifty (50) miles per hour goes seventy-five (75) feet per second and

travels Three Hundred (300) feet, or One Hundred (100) yards in four (4) seconds. See

fundamentals of physics Halliday and Resnick 2nd ed. Appx F, P A-10).

Officer Colton testified that once he caught up with the Defendant's vehicle at St Clair

Street he immediately began pacing (T p 56). During that period of pacing Officer

Colton testified that the Defendant was traveling fifty (50) miles per hour. The Defendant correctly argues if the Defendant was going fifty (50) miles per hour and intended to make a right had turn onto Kings Lane, he would have to be slowing down his vehicle to make this turn. However Officer Colton testified he paced the Defendant Palermo's vehicle at fifty (50) miles per hour until the Defendant was ninety (90) feet from the his tam. If Palermo is going fifty (50) mile per hour he would need One Hundred Eighty- three (1 83) feet of braking time to safely make a right hand turn onto Kings Lane (James Madison University Office of Public Safety, Ratio of Speed to Stopping Distance, Section 46.2-880, 2004). The Court agrees with Defendant's calculations that if the Palermo vehicle was traveling at fifty (50) miles an hour ninety(90) feet before Kings Lane, it would be impossible for the Palermo vehicle to make a right hand turn [*7]because he would have insufficient braking or stopping time to make such a turn at that -speed. If the Defendant was traveling the speed estimated by Officer Colton, he would have overshot the turn by ninety-three (93) feet. The Court finds it significant that there was no testimony that Defendant made a sharp or high speed turn onto Kings Lane, that there was no sudden braking by the Defendant before approaching the Kings Lane intersection, nor was there any testimony that the Defendant's turning onto Kings Lane was done erratically by swerving or at any high rate of speed.

CONCLUSION

For the foregoing reasons the Court finds that there was lacking probable cause to stop

the Defendant's vehicle for any speeding violation based on visual estimation, radar

detection or pacing, or a combination of the three. The Court finds that the People have

failed to meet their burden to establish that the police had probable cause to stop

Defendant's vehicle. Therefore the stop was an illegal seizure. As such, all evidence

gained as a result of the illegal stop cannot be used against the Defendant and the Court

hereby suppresses the fruits of the unlawful stop, namely, the arrest of the Defendant for

speeding and driving while intoxicated. The charges against the Defendant are hereby dismissed with prejudice.

Signed this 28th day of September, 2009.

ENTERED

HONORABLE TIMOTHY J. BUCKLEY